It's not the money, it's the subterfuge

July 14, 1996|By Peter A. Jay

HAVRE de GRACE -- Everybody except perhaps his lawyers seems to agree that Joe De Francis, the racetrack mogul, did a bad thing. He persuaded three relatives to contribute $4,000 each -- under Maryland law, the legal maximum an individual can give to a candidate -- to Governor Glendening's election campaign in 1994. That in itself was OK, but then he reimbursed the contributors, and now he faces misdemeanor charges of exceeding the limits on campaign contributions.

There has been a chorus of clucking over the incident, some of it from the governor, who says he is shocked and intends to give the money back. (A refund will be handy for Mr. De Francis, who can use it to pay his lawyers.) And there have been the usual calls for new laws on campaign spending.

Mr. De Francis, a well-heeled businessman whose success and perhaps even whose survival is determined by state regulation, is the quintessential political sugar daddy. In 1994, before Mr. Glendening became the Democratic nominee for governor, Mr. De Francis and his relatives poured money into the campaigns of Democrat Mickey Steinberg and Republican Helen Bentley.

If all that money was really Mr. De Francis', as seems likely, he does seem to have winked at the law, which in addition to the $4,000 per-candidate limit sets a maximum of $10,000 in total political contributions from an individual. But on the earlier contributions, the statute of limitations has run out and no prosecution is possible.

The campaign-reform movement can't seem to get through its well-meaning head that spending isn't the problem. Disclosure is. What's sleazy about the De Francis caper isn't the money, it's the effort to hide where it came from.

Candidates can be easily required to identify, probably by Social Security number, the source of every individual's contribution, no matter how small. Unidentified contributions should simply be turned over to the state.

But limits on the amount of individual Americans' campaign contributions are not only next to unenforceable, they're clear restrictions of freedom of speech and political expression. They ought to be, and eventually will be, declared unconstitutional. And they're undemocratic and may produce undemocratic results.

Putting the chill on, legally

There are various Maryland examples of the use of

campaign-spending laws to freeze out competition, but one stands out. Those who equate spending limits with ''reform'' ought to take a moment to recall it.

Back in 1970, in office for less than a year after the legislature chose him as Spiro Agnew's successor, Gov. Marvin Mandel held a major $1,000-a-table fund-raising dinner in order to finance his campaign that fall. Maryland law at that time limited an individual's total contributions to $2,500 in a primary election.

The people at the dinner, for which the tickets were sold out, were mostly state employees and political nonentities. But the tickets had been bought in bulk by a handful of heavy hitters, the Joe De Francises of that day, and then passed out to the faithful.

That 1970 dinner dried up the money pool. And later that year, when Sargent Shriver considered challenging Mr. Mandel in the Democratic primary, there was no more major money available, and the challenge was stillborn. Plenty of Maryland Democrats that year would have preferred voting for Sargent Shriver rather than Marvin Mandel, but they were never offered that option.

It was just 20 years ago that the Supreme Court, in Buckley v. Valeo, made the point that restricting the money that a person or group may spend on political communication also restricts expression. A few years later the court affirmed that point when it held proposed limits on spending by political-action committees to be plainly unconstitutional.

Since then, advocates of spending controls have argued, as Justice Byron White did in dissent, that ''the First Amendment protects the right to speak, not the right to spend.'' That those rights are inextricably intertwined in a free society seems not to have occurred to those backing ever greater powers for an ever-larger election-regulating bureaucracy.

If all contributions are disclosed, voters are smart enough to make up their own minds about the candidates who receive them. And if they're not disclosed, and journalists don't ferret them out, political adversaries and anonymous tipsters like the one who blew the whistle on Joe De Francis probably will. Surreptitious efforts like Mr. De Francis' to sneak money into Maryland campaigns are certainly offensive. But it's the sneakiness, not the money itself, that really smells.

Peter A. Jay is a writer and farmer.

Pub Date: 7/14/96

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