Spitzer v. The First Amendment

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The New York Sun

In a most unusual campaign promise, the state’s attorney general, Eliot Spitzer, said if elected governor he would try to pass legislation making it harder for anyone to challenge him. Or as he put it in a recent speech: “we should adopt a blanket ban on contributions to state candidates from those who do business with the state.” According to Mr. Spitzer this is to clean up politics. The real effect, meantime, is to ensure incumbents reign, or that only very wealthy challengers, like Mr. Spitzer, have a shot at office.


Along with gerrymandering, campaign finance laws are the best incumbent protection laws politicians have invented. Restricting donations and narrowing the pool of possible donors hampers challengers. Incumbents already have the advantage of name recognition and a high profile, and being a surer bet have an advantage in attracting donors. Banning anyone who does business with the state reduces the pool of donors, considerably so: The state is, regrettably, a huge employer and source of business. These contribution restrictions therefore make it harder for the ordinary American to enter politics. It means only those who’ve made money, or inherited it like Mr. Spitzer, will be able to mount a serious challenge. Mr. Spitzer’s 1994 Democratic Party primary campaign (which he lost), for instance, was financed by a $3.8 million loan from his father, a Manhattan landlord.


Moreover, a blanket ban of the type Mr. Spitzer is proposing would seem to forbid a deli owner who delivers sandwiches to state employees from donating to a campaign. The same goes for voluntary trustees on boards of hospitals that are reimbursed by the state for delivering health care to the poor. Their donations may have nothing to do with their business with the state, but may have to do with their personal political views. Alternatively, those doing business with the state are often best positioned to see the corruption and who deserves to be kicked out. Restricting their involvement in politics is an infringement of their First Amendment rights, and also of equal protection. Money is a form of speech and restricting some people from getting involved in a campaign is depriving them of the rights their fellow citizens enjoy.


If Mr. Spitzer and his fellow politicans always have the option of voluntarily refusing donations that they think could cause the appearance of a conflict or tend toward corruption. In some cases, voluntary refusals are admirable. Mr. Spitzer likes to tout, as he did recently, that “Since I took office in 1999, I have refused to accept campaign contributions from anyone with a pending business matter before my office.” But he’s nevertheless been accepting contributions from those in the financial industry that he has taken it upon himself to be a regulator of, not to mention the tort bar that has profited from his investigations. If Mr. Spitzer thinks campaign finances in the state are in need of reform, he could start voluntarily with his own campaign. It’d be a more constructive move than one that runs afoul of the Constitution.


The New York Sun

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