North Carolina Governor Mike Easley has been busy. On July 23, 2006, he signed into law H.B. 1845, which prohibits the personal use of contributions by candidates and campaign committees. Andrew Ballard, “N.C. Gov. Signs Law Restricting Use of Campaign Contributions,” BNA Money & Politics Report, July 26, 2006. On August 4, he signed H.B. 1843, which prohibits lobbyists from making campaign contributions to legislators or public servants. Andrew Ballard, “New N.C. Lobbying Restrictions Signed Into Law by Governor,” BNA Money & Politics Report, August 7, 2006. In an era of Abramoff investigation into already illegal activity and its concomitant legislative proposals for further “reform,” it is worth mentioning an oft unnoticed contradiction represented in Governor Easley’s recent enactments.
The prohibition against committing campaign funds to the personal use of any person, known as “the personal use doctrine,” is a little appreciated provision in campaign law and too often viewed as little more than a nuisance to lawmakers already subject to reporting requirements, press scrutiny, and dollar limits on the amount of influence any single contributor may lavish upon them. This nuisance does not go unnoticed by the Federal Election Commission, an agency understanding of the practicalities of office and of officeholders seeking advice on the use of campaign funds. See here .
But it is the contribution limit that yields Commission latitude, and it needs exploring. CCP believes, as does the Supreme Court, that campaign contributions are a form of protected First Amendment activity; protected speech and association of both the candidate and contributor. And CCP believes, as the Court does not, that contribution reporting and a well-policed personal use doctrine should make contribution limits unnecessary and problematic constitutionally.
Contributions are not only a form of association deserving of Court protection, they serve an instrumental value. Unrestricted and well-reported contributions provide more candidates with a public hearing. But they also induce a kind of political barometer and serve as a market measure; an indicator of the relative interest in participants in a political marketplace. The amount of a contribution is a measure of the contributor’s support. When aggregated, contributions serve as an indicator of political approval for any one candidate or party relative to another, no matter how concentrated the support from any one source; a variable ascertainable from contribution reporting. But this is also the stuff of press reporting: constant reports on an operating political market, distorted though it is by today’s contribution limits; the money chase and what it will mean for November. Note today’s BNA, which reports that “[a]n analysis of FEC data … found that Democrats in potentially competitive House districts are in their best financial position to pick up congressional seats in the last 6 years.” Kenneth P. Doyle, “Candidates Raising Record Donations While Total Party Money Down Slightly,” BNA Money & Politics Report, August 7, 2006.
Bribery is illegal. But bribery is tied to explicit or implicit understandings of quid pro quo, leaving untouched the candidate who hoards campaign contributions—and the contributors who know it—to bankroll a bungalow or frequent the Bahamas. The personal use doctrine ensures that all contributions go towards policy or politics. Without a personal use doctrine, it is unclear whether contributors are appealing to interests in platform and policy, or are appealing instead to the personal interests of the candidate. The mere possibility that campaign contributions legally could go to the personal use of a candidate can create market failure, a crack in the political barometer.
Current conjecture to the contrary, our system of private giving, of citizen participation in the political process, is not a form of legalized bribery, see Jeffrey Birnbaum, “The End of Legal Bribery,” Washington Monthly, June 2006, any more than philanthropists “bribe” the Red Cross to assist victims of Hurricane Katrina with donations for the victims of Hurricane Katrina. The personal use doctrine ensures that political contributions do not appeal to the personal interest of officeholders, but serve only to further the officeholder’s interest in policy.
This is why Governor Easley’s ban on contributions by lobbyists so contradicts his newly enacted personal use doctrine. Preventing lobbyists from making political contributions presumes, without more, that contributions made by lobbyists, no doubt because of lobbyist proximity to lawmakers, appeal in large measure to the personal interest of lawmakers. Banning gifts from lobbyists (or anyone else) makes sense because gifts appeal to personal interest. In signing into law a personal use doctrine, however, Governor Easley’s has made it legally impossible that a lobbyist’s contributions can appeal to the personal interest of lawmakers or public servants.
But there is no reason to suspect we will hear much complaining out of the lobbying class in Raleigh. With the ban on lobbyist contributions applying across the board, North Carolina’s lobbyists will return to their jobs in the same relative status they enjoyed on August 3d. And surely each in turn has realized that the Easley ban on lobbyist contributions to the candidates they lobby allows the lobbyist to avoid a nuisance of his or her own. While lobbyist reticence to challenge the Easley ban may with each passing year leave the rest of our rights in limbo, in the near term North Carolina’s remaining citizens may scarcely notice, or know where to attribute, the slight drop in barometric pressure, or downward trend in their political “Dow.”
