Reforms Needed to Eliminate Pay-to-Play Cases

Posted February 2, 2009 at 3:28pm

The prospect of free home renovations turns out to be a tempting item for politicians. Mere months after the conviction of one of the longest-serving Members of Congress for failing to report the gift of a gas grill and free wood flooring from a company seeking his favor, another politician was arrested last week on charges of bribery, corruption and fabrication of evidence.

The allegations — that Hartford, Conn., Mayor Eddie Perez accepted tens of thousands of dollars in home renovations as bribes for awards of municipal contracts — were sadly reminiscent of those that brought down former “Corrupticut” Gov. John Rowland (R) five years ago, as well as suspicions raised recently about actions by New Mexico Gov. Bill Richardson (D) and those in the indictment issued in January of former New York state Senate Majority Leader Joseph Bruno (R).

Recent reports also tie Rep. John Murtha (D-Pa.), the powerful chairman of the Appropriations Subcommittee on Defense, to an FBI and IRS raid on a defense contractor. And who could miss the embarrassing national soap opera that led to the impeachment and removal from office last week of Illinois Gov. Rod Blagojevich (D)?

Given this torrent of pay-to-play scandals, there is some comfort in a major decision by a federal judge in Connecticut. The opinion will help ensure that while there may still be a future Mayor Perez, Connecticut will never again have a Gov. Rowland.

In a decision in late December, Judge Stefan Underhill upheld a major part of the state’s groundbreaking campaign financing system, including one of the strictest pay-to-play bans in the country. The ban was enacted in 2005 in the wake of the Rowland scandal and other notorious instances of corruption among state officials. If upheld on appeal, the legacy of the Rowland scandal will be lasting and needed reforms.

Under Connecticut’s rules, state contractors and prospective state contractors are prohibited from making contributions to certain candidate committees for legislative and statewide offices, candidate political action committees and party committees. The law also set up a comprehensive public financing system for state executive and legislative offices that saw nearly 80 percent participation in its first election cycle in 2008. Together, the pay-to-play bans and the public financing system are a one-two punch designed to knock the corruption out of Connecticut’s state government and serve as a model for clean government in other states.

Unfortunately, however, the path to reform can be a rocky one, and these kind of reforms always face further obstacles. They inevitably incur the wrath — and legal challenge — of lobbyists and libertarian interests flying the flag of the First Amendment. In a spate of lawsuits challenging campaign finance reforms, the argument is that money is the equivalent of speech and that contribution limits unconstitutionally burden First Amendment rights — an argument to which the Supreme Court under Chief Justice John Roberts has been troublingly receptive.

Yet as Underhill’s opinion recognized, the First Amendment provides a more flexible set of possibilities than the absolutists would recognize, and should not prevent state and federal legislatures from taking reasonable steps to prevent pervasive corruption.

In a crucial insight, the court took note of the many alternative avenues for communication that remain open despite the pay-to-play bans, none of which raise the specter of corruption. From get-out-the-vote volunteering to posting yard signs, there are many ways that lobbyists and state contractors remain free to show their support for a candidate or political agenda. And as we have seen in the last election, these forms of political engagement can be just as meaningful, if not more so, than mere money.

Connecticut’s pragmatic approach is a model for both state legislatures and judges trying to balance a healthy respect for First Amendment rights against the need to combat the recurring corruption that appears to be epidemic in our democratic institutions — local, state and federal.

The federal stimulus bill will give state and local governments billions of dollars to add to state budgets. We should not need a continuous spectacle of politicians auctioning off public goods to remind us that there is a high price to pay for corruption — in both wasted tax dollars and heightened public cynicism about government. Both strong pay-to-play restrictions and public funding are crucial reforms to ensure that it’s the people’s house that will matter most to our public officials.

Monica Youn is an attorney in the Democracy Program at the Brennan Center for Justice at New York University School of Law, focusing on campaign finance reform.