Lincoln Journal Star
July 3, 2001
Nebraska Should Stand Up for Integrity
By Deborah Goldberg
Just last Monday, June 25, the U.S. Supreme Court went on record for the second time in two years reaffirming the importance of integrity in our elections. Both the recent case, FEC v. Colorado Republican Federal Campaign Committee, and the case decided last year, Nixon v. Shrink Missouri Government PAC, addressed the potential for corruption in federal elections. But the controversy surrounding the 2000 campaign of University of Nebraska Regent Drew Miller suggests that the corruption identified in the federal cases must be addressed in Nebraska as well.
The Nebraska Campaign Finance Limitation Act establishes a system whereby candidates in state elections may voluntarily agree to limit how much they spend on their campaigns. The limits help to guard against corruption and the appearance of corruption by reducing the demand for money from donors seeking special favors. A candidate who voluntarily agrees to abide by the limit, as Regent Miller did in his last election, is allowed to spend up to the cap and no more.
The law also allows outside groups to make independent expenditures to advance a candidate’s campaign. Indeed, under the First Amendment, such independent spending cannot be limited. The Supreme Court has ruled that independent expenditures do not carry a serious potential for corrupting candidates because, absent20coordination with a campaign, there is no guarantee that such spending will be helpful and thereby earn the candidate’s eternal gratitude. According to this logic, the government has no justification for limiting expenditures that carry little threat to the integrity of the process.
But the Court’s reasoning applies only if spending by supporters is genuinely independent. If a group secretly coordinates with a campaign, the group’s expenditure benefits the candidate just as if the spending were the candidate’s own. Surreptitious coordination is therefore a well-known way of circumventing campaign finance limits. When candidates and their supporters claim to be operating independently, but they are really working together, they violate the law.
Evidence made public about Regent Miller’s 2000 campaign strongly suggests that he and his supporters were circumventing Nebraska’s campaign finance law in precisely this way. Regent Miller has reportedly admitted sending an e-mail asking that an “independent” group “Defenders of Medical Research” be set up to support him. The e-mail explained how to set up the group, how much money it would need to raise, and how the funds should be spent to benefit Miller’s campaign. Then, to cover up the trail, the e-mail recipient was told three times not to send the e-mail to anyone else.
Defenders of Life Saving Medical Research was set up, and it did spend money that helped Regent Miller win re-election. The amount that the group spent, together with the amount spent by Miller’s campaign, exceeded the spending limit that Miller had accepted. This activity certainly looks like a clear-cut case of intentional evasion of the law.
If such circumvention did occur, enforcement action should be swift. As the Supreme Court stated in Shrink Missouri: “Democracy works only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities that arouse suspicions of malfeasance and corruption.” The public is entitled to assurance that office holders and candidates will not be allowed to evade the law with impunity especially laws that are specifically designed to promote governmental integrity.
The fact that other candidates may have illegally coordinated spending without being caught is no excuse. In Colorado Republican, the Supreme Court recognized “the practical difficulty of identifying and directly combating circumvention under actual political conditions.” But the e-mail from Regent Miller, explicitly coordinating with an outside supporter, has radically reduced the difficulty of establishing circumvention in this case. It is now up to the authorities in Nebraska to ensure that high officials are not held above the law.
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ABOUT THE AUTHOR
Deborah Goldberg is an attorney at the Brennan Center for Justice at NYU Law School, which is defending Nebraska’s campaign finance law in court.