Representative Bob Barr *
"Exposing" the influence of "big money" in
politics has become a virtual cottage industry in Washington. From
Common Cause to Public Citizen, groups dedicated to disclosing the
nefarious influence of campaign cash on the political process abound.
While these groups have found a message that sells, their rhetoric
frequently obscures the fact that we already have most of the tools
we need to clean up our campaign system.
Such groups thrive on stumping for campaign finance reform as the
panacea for everything that ails our political system. Unhappy with
your high phone bill? Blame contributions by telecommunications
companies. Concerned by the failure of environmental advocates to
restrict the distribution of certain pesticides? You can thank contributions
by the "chemical lobby" for that. Of course, contributions
from "big tobacco" companies are so suspect, they can
and are blamed for anything and everything.
This approach makes for good soundbites, but overlooks the obvious.
There are numerous ways for one person, or a group of people, to
acquire a level of influence over the political process that far
exceeds their actual numbers. For example, organizations such as
the National Rifle Association are able to influence the process
because its membership is ready and willing to actively engage in
grassroots politics. Another group might succeed in securing the
support of a particular respected former House or Senate leader
who moves its cause to the forefront. Still another association,
such as groups that campaign against tobacco, may wield disproportionate
influence because the news media flagrantly supports their goals.
In a very real sense, what I have just described is exactly what
makes the American political system so effective. Political speech
is one of the most cherished rights Americans have. That speech
may take the form of wearing an elaborate costume and picketing
the White House, or it may take the form of financially supporting
a candidate who agrees with your views. For some, writing a check
is a favored method of political speech. Others may prefer to fold
and stuff mail or put up yard signs. Generally, those who complain
about the process do so because they have been beaten at it, not
because they truly believe the system is broken.
Of course as the classic example of yelling fire in a crowded
movie theater points out all types of speech run into legal
limits at some point. What then, should those limits be for political
speech, such as making a campaign contribution? And, where those
limits exist, who should be responsible for enforcing them?
First, it should be an ironclad rule of the American political
game that only our citizens are allowed to play it. Fortunately,
it already is black-letter law that foreign nationals cannot make
campaign contributions in America.Under current law, it is illegal
for a foreign national to contribute to federal political candidates.
Unfortunately, laws that ban foreign nationals from making contributions
have been enforced only sporadically by the Department of Justice
("DOJ") and the Federal Election Commission ("FEC").
Even worse, the laws against American citizens soliciting or receiving
contributions from foreign sources have been virtually ignored by
both agencies. Based on this record, for all practical purposes,
it is still a crime to offer, but not to accept or solicit, a foreign
Secondly, federal bribery and extortion statutes can and do make
a clear and sensible distinction between acceptable political speech
and illegal attempts to influence government decisions. Essentially,
our bribery laws turn on the presence or absence of a specific quid
pro quo. When a government action such as a vote or contract
award is made in return for a campaign contribution or other
favor, a quid pro quo has occurred, and the law has been violated.
However, if someone makes a donation hoping the favor will be returned,
no law has been violated.
This legal structure appropriately punishes illegal actions where
they actually occur, while resisting prosecution based solely on
the appearance of impropriety. Since their enactment, bribery and
extortion statutes have been interpreted by the courts to outlaw
more subtle forms of influence peddling than blatantly offering
cash in return for a favor. When both parties understand the rules
of the exchange, they can be prosecuted regardless of whether they
negotiate an explicit arrangement. The resulting legal structure
can be a powerful tool against political corruption if it is wielded
Under current law, failure to combat illegal influence rests not
with an inadequate legal structure, but with weak enforcement of
those laws. The FEC is crippled by partisan deadlock and a lack
of resources. Furthermore, it enforces a Byzantine system of law
and regulation that creates a minefield for candidates to negotiate.
The result is that the Commission polices the campaign system in
such a way that relatively trivial and technical matters become
the target of massive inquiries, while far more significant violations
go unpunished due to a lack of time, will, and resources. FEC enforcement
becomes the all-too familiar regulatory game faced by all businesses
in this era: come in and agree to a fine, because if we proceed,
we can always find some technical violations.
Therefore, if we want to get serious about cleaning up campaign
finances, it makes far more sense to focus our resources on areas
where they can make a significant impact. The best way to do this
is to aggressively enforce our laws against soliciting or receiving
bribes. When an official takes a contribution in return for an official
action or decision, a criminal law has been broken. In such cases,
both the recipient and the donor of the bribe can and should be
prosecuted. The Department of Justice already has the capability,
resources, and legal structure it needs to accomplish this task.
Further complications of existing law proposed by many proponents
of "campaign finance reform" would only detract from this
core mission, by turning attention away from direct quid pro quos,
and toward an ill-advised campaign to make a traditionally rough
and tumble electoral system appear clean.
When it comes to preventing the appearance of impropriety, no legal
structure is an adequate substitute for prompt disclosure, an aggressive
press, an opposing campaign, and an interested public. For this
reason, campaigns should be required to disclose contributions and
expenditures on a real-time basis. Modern technology, such as the
Internet and accounting software, would allow for this change without
any major bumps. The resulting constant disclosure would be a far
more powerful incentive to discourage contributions that don't meet
the public's "smell test" than cumbersome new campaign
regulations would be.
In the final analysis, our legal arsenal against public corruption
is already extensive. Before we take steps that could make our election
laws even more unenforceable than they already are, we should closely
examine whether our existing laws against bribery, extortion, and
foreign contributions are being consistently and effectively enforced.
* Congressman Barr represents Georgia's 7th Congressional District.
Before being elected to Congress he served as a United States Attorney
under Presidents Reagan and Bush. He is a member of the House Judiciary