Introduction.

AuthorConnor, Martin E.

Contributions of huge amounts of money by wealthy individuals and corporations to American political campaigns have a long and sordid history. For example, in 1860, New York Democrats put together a Fusion slate so voters could vote against Lincoln without dividing their votes among the three Democratic opponents. (1) New York merchants contributed substantial funds. (2) Reports stated that William Astor had given $1 million to the campaign. (3) This was $27,780,000 in 2013 dollars, at a time when there was no radio or television on which to spend it. (4) The campaign was for New York State presidential electors only. (5)

In 1896, Mark Hanna was widely reported to have raised and contributed $3.5 million to elect William McKinley to the Presidency. (6) This was equivalent to $94,605,000 in current day dollars. (7) That amount was solely for the national effort.(8) State party committees at the time bore the major burden of raising and spending for the Presidential campaign. (9) Where did the money come from? All banks and large corporations were assessed a percentage of their profits. (10)

How and where was it spent? With no TV or radio, one can only imagine the payoffs that were made.

In the 1960 presidential election, it was an open secret that Joseph P. Kennedy spent millions of dollars to make his son the President. (11) The exact amount is uncertain since no disclosure was required. There are many stories of the bundles of hundred dollar bills used in the 1960 campaigns. (12) Both contributions and expenditures were commonly made in cash. (13)

The lack of disclosure of campaign contributions and expenditures in the first 160 years or so of our Republic does not mean there was no recognition of the potential for corruption. Indeed, succeeding to the Presidency upon the death of McKinley, Theodore Roosevelt led the successful charge to pass a ban on corporations contributing to federal campaigns. (14)

However, the realization that money was corrupting elections went back further than the early twentieth century. The earliest casebook on American election law of which I am aware is A Collection of Leading Cases on the Law of Elections in the United States. (15) In its 766 pages, there is but one mention of campaign contributions. (16) It arose in the context of a suit for a debt for rent. (17) In 1840, the plaintiff had erected a log cabin on Broadway in New York City at the request of the defendant. (18) The log cabin was intended for public and other meetings of the Whig Party and for the sale of refreshments. (19)

In August of 1840, the plaintiff announced that he would be taking down the log cabin because he was losing money. (20) It cost the plaintiff $1,600 or $1,800 to build the cabin. (21) A subscription was opened and $200 was raised. (22) The defendant told the plaintiff that he wanted the cabin to be kept open until after the election and that he "would not permit the whig flag across Broadway to be struck." (23) He promised to raise the balance of $1,000 or pay it out of his own pocket. (24) The plaintiff kept the log cabin open until after the election. (25) The plaintiff sued the defendant in New York City Superior Court for the promised amount. (26) The defendant alleged that the contribution of $1,000 for a campaign headquarters was illegal and thus his promise of payment for such was unenforceable. (27) After the trial judge denied the defendant's motion to find the contract illegal, the jury found in favor of the plaintiff. (28) On appeal to the Supreme Court of New York, the judgment was reversed on the grounds that a contribution for a campaign headquarters was illegal under an 1829 statute. (29)

In an effort to ensure the "purity of elections," the New York Legislature had enacted a statute making it unlawful (a misdemeanor) for any candidate or any other person to pay for, or contribute any money for any "purpose intended to promote an election of any particular person or ticket, except for defraying the expenses of printing, and the circulation of votes, handbills and other papers, previous to any election." (30) Interestingly enough, this statute more or less banned campaign expenditures toward any sort of "get out the vote" operations. Since the purpose of keeping the log cabin open was clearly to promote the election of "Gen. Harrison" for President and the Whig ticket in general, the expenditure was illegal and the promised payment was unenforceable. (31)

The court rejected the contention that the statute was intended only to forbid the contribution of money for corrupt purposes. (32) The court stated that "[t]he legislature evidently thought that the most effectual way 'to preserve the purity of election,' was to keep them free from the contaminating influence of money." (33) It should be noted that the court also commented that "[t]here can be little doubt that large sums of money are expended upon elections for other purposes; but the statute says, 'it shall not be lawful' to do so, and the enactment should either be enforced or repealed." (34)

While the statute in question seems shocking to us in its lack of concern for free speech, it must be remembered that the Fourteenth Amendment had not yet been passed (35) and that the First Amendment then applied only to the federal government. (36) Obviously, New York State's constitutional guarantee of free speech (37) was not seen to cover campaign contributions and expenditures.

Modern day reformers are prone to advance proposals to define exactly what constitutes the legitimate use of campaign funds, and many states have already done so. Aside from concerns about candidates' use of contribution funds for expenditures that are clearly personal, some laws on expenditures obviously impede legitimate political strategies employed by candidates. Local conditions can make gestures like sending flowers, perhaps to important constituents who are hospitalized or to the funerals of those that have passed away, a wise and necessary political expenditure--and one a candidate should be no more expected to pay from her personal funds than a businessman who makes such gestures to purely business acquaintances.

Does anyone who has ever examined the 1960 presidential campaign doubt that John F. Kennedy chose wisely when he engaged his brother Robert as his campaign manager? Of course, no one knows how the manager's expenses were paid since that was in the "cash and carry" era. In my opinion, campaign finance restrictions against employing relatives are overreaching. A relative just might be the best person for the job. However, that does not mean funneling campaign funds to a relative for "no-show" employment should be tolerated.

In my first foray into politics, following my graduation from law school and move to New York, I joined a local "Reform" Democratic club in 1971. The club had no relationship to the official Democratic Party organization; indeed, it usually opposed the regular party's candidates. The major issue for the club's members was opposition to the Vietnam War. Dues were $5.00 per year ($7.00 a couple). The annual fundraiser that year was $10.00 per person. At club meetings, we passed around a hat to raise money for planned activities.

In 1972, the club's major mission was to support George McGovern for President and to oppose our incumbent Representative who supported the war effort. The...

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