August 14, 2005
Sixth Amendment or First
August 14, 2005 03:11 PM
I've gradually been coming over to the ACLU-approved view that restrictions on campaign finance violate the right of free speech, but some stories tend to make me wonder again. An article about Rep. Randy "Duke" Cunningham (R-CA)'s asking his contributors' permission to use their funding for his legal defense against a government investigation says, "The Federal Election Commission has approved similar requests to use campaign donations to pay legal bills."
In a way, there's nothing questionable about this, inasmuch as "Cunningham is setting up a legal expense trust, which will permit him to accept as much as $5,000 a year from individual and corporate donors." Once his campaign donors give their permission, an accountant presumably might transfer the money from the now defunct Re-Elect Duke account to the active Defend Duke one. But I'm troubled by the fungibility of these funds if the Supreme Court eventually declares campaign finance to be a First Amendment-protected right that can be regulated only in limited circumstances. Does this mean that no money one gives to a politician should be scrutinized?
In his McConnell v. FEC opinion, Justice Clarence Thomas suggested that perhaps bribery rules should be tightened if the public fears excessively quid pro quo behavior by politicians and their financial supporters; the behavior we truly want deterred should be fought through means other than curtailing speech. In this instance, maybe the quarrel should be with allowing campaign funds to be diverted for other purposes, rather than with the funding itself.
Wasn't one of the main characters in Orwell's "Animal Farm" also know as "Cunning Ham"?
I don't think it's accurate to refer to the funding as fungible. If it truly were, then Cunningham would be able to transfer the funds at his discretion. As it is, he apparently believes that he has an obligation (whether legal or simply political is not clear) to ask permission of the donors to transfer the money. And as long as he's asking permission, all he's basically doing is conducting a targeted fund-raiser.
Suppose it were made illegal to move campaign contributions to a legal defense fund. Cunningham would have to either hold or return his campaign funding, and separately conduct a fund-raiser for his legal defense (presumably targeting his strongest supporters; i.e., his campaign contributors). Isn't that in effect what he's doing now?
My concern is with the view of campaign funding as a form of First Amendment protected speech and thus not properly subject to heavy government regulation. Contributing money to a candidate or various PACs and other organizations to get a message out has a fairly good claim to being speech; contributing money to legal defense seems more questionable.
It is possible that a transfer of campaign funds for Cunningham's criminal defense unrelated to his role as a Congressman may raise tax issues. While contributions to a political campaign are not considered as charitable deductions by the donors nor as the receipt of income to the politician, the private use of such funds by the politician may be considered as the receipt of income subject to taxation. Am I wrong?