Many years ago, waiting in the anteroom of Dr. Howard Dean's office, I struck up a conversation with Al Gore.
Each of us was under the misimpression that the other was there for a medical checkup. The reality was quite different. Al was, of course, quite a powerhouse in Democratic circles. I was, immodest though it may sound, a mover and shaker in libertarian ranks. Both Al and I were sufficiently prescient to know that Howard would likely be the Democratic front-runner for the 2004 nomination. Ergo, we both wanted to help formulate his views on the major issues.
I had the earlier appointment with Dr. Dean. It went like this:
Howard: "Hi, Bob. Nice to see you. Any particular ailments?"
Me: "Howard, let's not beat around the Bush--the guy you'll be running against in 2004. Here's the deal. I'd like access, influence and input. In return, I'll have my corporation spend $250,000 on "issue ads" (search) supporting you just before the New Hampshire primary. By the way, I ran into Al Gore in your waiting room. He doesn't have the money I have, so he'll probably offer to endorse you. Believe me, his endorsement translates into less than a $250,000 value."
Howard said he'd think it over.
Right after I departed, Al had his appointment. I later learned from a secret source that it went like this:
Howard: "Hi, Al. Nice to see you. Any particular ailments?"
Al: "Howard, let's not beat around the Bush--the guy you'll be running against in 2004. Here's the deal. I'd like access, influence and input. In return, I'll endorse you just before the New Hampshire primary. (search)By the way, I ran into Bob Levy in your waiting room. He's got a bundle of money so I suppose he offered to have his corporation spend about $250,000 on "issue ads" that support you. Believe me, my endorsement translates into more than a $250,000 value.
Well, we now know which deal Howard picked. In retrospect, that choice was lucky for him and for me, because on Dec. 10 the U.S. Supreme Court decided that my deal--exchanging something worth roughly $250,000, shortly before an election, in return for political access and influence--is a crime. By contrast, Al Gore's deal--exchanging something worth roughly $250,000, shortly before an election, in return for political access and influence--is perfectly okay. Undoubtedly, somewhere in the Court's 300-page opinion, Justice Sandra Day O'Connor explains that apparent paradox.
Then again, maybe not. Sad to say, only Justices Antonin Scalia and Clarence Thomas seem to grasp that politics is essentially a bargain between the candidate and the electorate. From a constitutional perspective, there should be no distinction between each of these "political deals:" (1) I promise to vote for a candidate if he promises to take positions that favor me. (2) I promise to help convince my friends to vote for a candidate if he promises to take positions that favor me. (3) I promise to write letters to the editor in support of a candidate if he promises to take positions that favor me. (4) I promise to pay for an ad that supports a candidate if he promises to take positions that favor me. (5) I promise to donate money to a candidate if he promises to take positions that favor me.
Nor should it matter if the candidate's end of the bargain included a commitment to meet with me, listen to my views or, to put it crassly, give me access, influence and input.
Whether the voter pledges a single vote, a public endorsement, payment for an ad, or a contribution of money so the candidate can pay for his own ad, each of those acts has the same end: getting the candidate elected. And each act operates through the same means: political speech. The exchange of speech for promised conduct by the candidate if he's elected is not corrupt. It is democracy at work.
What, then, should be illegal? Payoffs to a candidate--secretly contributed and received, then spent on personal pleasures like a new car. Those are corrupting and they should be illegal. But something of value provided to a candidate, where the value is fully disclosed, then set aside in a segregated fund that can be used only for constitutionally favored political speech, should not be illegal. The First Amendment does not allow treating the second as if it were the first. If that's too much for the Court, perhaps Congress can get it right.
Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.