Human Rights
Volume 25
Number 1
Winter 1998
Ending Pay-to-Play: What are the ethics issues when lawyers contribute to political campaigns?
By Ky HendersonIn 1971, with the Watergate scandal just around the corner, Congress tried to curb corruption in political campaigns by passing the Federal Election Campaign Act (FECA), which among other provisions set limits on the amount of money individuals could contribute to political campaigns. While FECA had noble aims, opponents challenged its constitutionality, arguing that the contribution limits violated the freedom of speech and association clauses of the First Amendment.
Five years later, FECA went all the way to the Supreme Court. In 1976, the Court ruled in Buckley v. Valeo that limited restrictions on campaign contributions in fact did not violate the First Amendment. In the written opinion, the Court asserted that limits simply sought to enhance the "integrity of our system of representative democracy" by guarding against corrupt practices. But corruption has an insidious way of popping up in politics, and today, more than 20 years after Buckley, lawyers and judges are once again taking center stage in the reinvigorated debate over campaign finance reform.
Only this time, the issue is hitting a little too close to home.
In September, ABA President Jerome J. Shestack appointed a blue-ribbon task force to study ethics issues created when lawyers contribute to political campaigns. The Task Force on Pay to Play will focus on exactly what its name implies -- the "pay to play" scenario, in which lawyers contribute to politicians with the express purpose of later being considered for government contracts. The task force is scheduled to report its findings to the House of Delegates in August 1998, establishing the need, if any, to revise or supplement professional standards, laws and procedures governing campaign contributions by lawyers.
The House directed creation of the task force in response to a proposal from the Association of the Bar of the City of New York that was headed by Securities and Exchange Commission Chair Arthur Levitt. John Martin Jr., vice president and general counsel of Ford Motor Co., chairs the task force, which is composed of 12 lawyers and judges from all over the country.
"The impeccable credentials of the members of this panel assure both the public and the bar that any recommendations it produces for new controls will focus on the public good, integrity in government and high standards of ethical conduct," Shestack says.
The New York bar's proposal dealt specifically with bond lawyers, causing some to charge Levitt with trying to engineer an ABA prohibition on lawyers being retained as bond counsel if they make political contributions. But the House amended the proposal and widened the final resolution's scope. Instead of focusing only on bond lawyers, the task force will examine campaign contributions by any lawyers to any political campaigns, including those to judicial candidates the lawyers may appear before at a later date.
Task force members know that with an agenda that wide in scope, they'll have their work cut out for them.
"It's a pretty big undertaking, and we've only got less than a year," says task force member David E. Cardwell, an Orlando, Fla., lawyer who is a member of the House of Delegates and former chair of the Finance Committee of the Board of Governors. "There's lots of anecdotal evidence, but no academically acceptable, comprehensive study."
The task force held its first meeting Oct. 1, at which it laid out a general strategy on how it will attack the issue. In addition to searching through literature that deals with paying to play, the task force will invite several individuals to provide their views on political contributions from lawyers. In December, it will meet in New York City to discuss with the bar its reasons for submitting the original proposal. And in 1998, it will assemble at the Midyear Meetings in Nashville, where it will invite any ABA sections that have an interest in the pay to play issue to present their ideas.
"It's a process of gathering the substantive facts relating to the practices that are the subject of the resolution and making sure that everyone who has a point of view on the issues has the opportunity to express those views to us," Martin says.
While Buckley allowed for a limitation on campaign contributions, it also made clear that those limits could not be so severe that they hindered one's right to express political preferences. Currently, laws and prohibitions vary from state to state, but instances in which lawyers are absolutely prohibited from donating to campaigns are rare. In Florida, for instance, Cardwell's firm serves as bond counsel to the state on certain issues, and therefore members of the firm have severe limitations placed on them by administrative rules on contributing to any candidate for statewide office. A family member of a lawyer in the firm may contribute no more than $100, while a member of the firm can't contribute at all to candidates for governor because the governor chairs the committee that selects bond counsel.
And in New York City, the bar got the SEC to adopt a rule making lawyers and their firms ineligible for government finance work for two years after making or soliciting contributions of more than $250 to candidates for whom the lawyers are eligible to vote.
But the task force will not only be looking into the conduct of individual lawyers who pay to play. It will also investigate political committees and advocacy groups who contribute to judges. For instance, if a group of plaintiff's lawyers get together and form an advocacy group, they could very well contribute to judges whom they believe will be sympathetic to large recoveries. While it doesn't qualify as an instance of paying to play, it certainly represents an instance of trying to unethically influence the system.
Depending on the task force's recommendations, the House could amend the Model Rules of Professional Conduct. If states adopt the changes, lawyers would essentially be removed from the campaign contribution cycle. Whether this will happen or not, however, remains to be seen. There is a great deal of debate over the issue within the ABA, which leaves some analysts doubting wondering which side will win out. In addition, each state's attorney-regulatory authority will be able to supply its own amendments to the final rule changes.
But the task force won't worry about these concerns for almost a year. For now, it must deal with the problems at hand - how prevalent the pay to play practice really is, what can be done about it without violating lawyers' rights, and what should be done to effectively enforce the eventual decision.
"Where is the line between where you contribute to Mr. X because you hope you can get hired by the city where he'll be one of seven Council members, and where you contribute to Mr. X because you think he's an upstanding citizen who'll be a good City Council member?" Cardwell asks. "It's one of the difficulties we recognized at our first meeting, and because of it I don't know if anyone can quantify the (pay to play) problem."
Ky Henderson is a writer in Chicago.