Most candidates and elected officials dislike making fundraising calls; some hate it. But until we come up with another way to fund the increasingly expensive media campaigns necessary to compete in congressional, statewide or national elections, fundraising will continue to be an essential part of the job in which every politician not sufficiently wealthy to self-fund their campaigns must engage.
Yet, while nearly every politician must make fundraising calls, few really understand the legal distinction between lawful fundraising and the federal crimes of bribery and extortion. In fact, the lines between “lawful’ and “unlawful” are so blurred that even federal judges have described this area of federal law as “murky.” This is hardly surprising, insofar as the legal standards vary depending on the state in which you live and are seeking office.
{mosads}In some jurisdictions, including New York and New Jersey, politicians can avoid federal prison simply by not making any “explicit promise” to a potential donor. In other jurisdictions, however, including states in the Midwest, a politician can be jailed for extortion if a jury finds simply that he or she “believed” a requested donation “would be given in return” for some official act. This “Midwest” standard sets an extremely low, and troubling, bar for conviction.
It is an inescapable fact that in a representative system of government such as ours — in which campaigns are funded not by the government using taxpayers’ money, but by voluntary citizen donations — donors who make or collect large contributions almost always want something in return for their support; this may include support for or against a piece of legislation, or a particular industry or profession, or simply a meeting to explain their position to the candidate.
Federal law accommodates this reality by allowing such donations; at the same time, it leaves the door open for prosecutors to selectively charge elected officials for simply engaging in what everyone understands to be a necessary and accepted practice of donors supporting those officials who will, in turn, take actions in concert with the donors’ views.
Whatever one thinks about money in politics, it is a fact of life in our political system and, consequently, there needs to be a clear line that everyone on both sides of the equation can understand. Murky legal standards offer enormous power to individual prosecutors, who can then use that power to target unpopular candidates, for partisan advantage, or for career advancement.
On Friday, the Supreme Court has an opportunity to draw that clear line between legal fundraising and felony extortion, if it agrees to hear the case of Blagojevich v. United States. Rod Blagojevich is the fourth Illinois governor sent to federal prison in recent memory. His severe 14-year sentence was based on his attempts to raise campaign funds from donors seeking certain favors. Although Blagojevich never promised anything to those donors, and the donors never actually contributed to his campaign, the federal prosecutors convinced the jury to convict Blagojevich because he believed that the donations would be given in return for an official act.
Blagojevich also was charged with trying to make an illegal deal with President Obama, regarding the appointment of Obama’s successor to the U.S. Senate. However, these counts on which he was convicted were overturned on appeal, because the proposed deal to “trade” political appointments was perfectly legal. Nonetheless, Blagojevich remains in federal prison serving the 14-year sentence.
The Supreme Court should hear Blagojevich’s appeal and settle the law. Uncertainty about what federal law permits and criminalizes is something that should not be tolerated; especially when that uncertainty involves an activity — political fundraising — that the Supreme Court itself has called “unavoidable so long as election campaigns are financed by private contributions or expenditures.”
While the Blagojevich case may not present the most appealing set of facts to the general public, the principle for which it stands — that in a representative democracy, voters and politicians both deserve a system in which support is based on clear legal standards and common sense — is a bedrock principle on which all should agree.
Bob Barr represented Georgia’s 7th District in the U.S. House as a Republican from 1995 to 2003, during which time he served on the Government Reform and Oversight Committee with Rod Blagojevich.