Donation bans restrict speech

In the wake of the corruption scandal surrounding Illinois Gov. Rod Blagojevich, some are proposing to ban so-called “pay-to-play” donations from government contractors. Advocates of a pay-to-play ban fear elected officials will exchange campaign contributions for contracts instead of awarding them to the best qualified or lowest bidder.

Such a ban would impose a solution in search of a problem and represent a clear danger to the First Amendment freedoms of speech, assembly and petition.

The restrictions would prevent individuals at companies with government contracts from donating to candidates for public office. Limits vary among other state and local governments that have adopted these bans, but most cover no-bid as well as competitive contracts, some set a minimum contract value triggering the limits and some restrict not only the contracting group but also shareholders, related labor unions and relatives of contractors.

These pay-to-play bans are often discriminatory, applying only to businesses that sell goods to or perform services for the public while allowing unions that negotiate contracts with elected officials to continue contributing. Is it really fair to single out contributions by a business, whose only “crime” is fulfilling a government contract to print envelopes or repair sidewalks, while ignoring contributions by others with just as great an economic interest?

Others with meaningful economic interests are often left out of such bans. Doctors, nurses and hospitals all have an acute financial interest in how much, for whom and how quickly the state reimburses for Medicaid patients, for example. Is Georgia going to say that doctors, nurses and hospital employees aren’t allowed to contribute to candidates they want to see elected?

Exploring such questions quickly shows such bans to be largely unworkable, at least if the goal is to somehow end or noticeably limit the supposed problem of pay-to-play. More important, however, it violates fundamental First Amendment rights.

Contributing to a candidate is an important way of engaging in political speech, as millions just proved with their support for President-elect Barack Obama. The U.S. Supreme Court has ruled that limiting citizens’ right to contribute is an infringement on the First Amendment and must be done narrowly and cautiously. What’s narrow and cautious about stripping possibly tens of thousands or more citizens of the right to contribute to candidates who share their perspective and priorities?

It’s also important to note that officials willing to exchange contributions for contracts are unlikely to stop there. Blagojevich is alleged to have tried to secure a cushy job from a union as well as lucrative corporate board seats for his wife as part of his corruption scandal — something pay-to-play would not affect.

The era of McCain-Feingold campaign restrictions, another supposed effort to root out corruption in public office, is also the era of imprisoned former U.S. Rep. Duke Cunningham (R-Calif.), convicted Sen. Ted Stevens (R-Alaska) and indicted Rep. William Jefferson (D-La.). These bribery and graft scandals could not have been prevented by any sort of campaign finance law.

Meanwhile, according to Governing Magazine, Utah and Virginia ranked as the best managed states in 2008. Both states resisted meaningless campaign finance “reform” and allow unlimited individual, corporate and union contributions. Clean, honest and effective government doesn’t depend on restricting who can contribute to campaigns.

Georgia requires competitive bidding and online posting of contracts over $5,000. Companies must possess a valid business license and meet bid requirements while government vendors are required to disclose any gift over $250 to state employees. These rules provide transparency and help to ensure a minimal amount of impropriety in Georgia’s contracting system.

Georgia should avoid the same mistake other states have made in passing campaign finance restrictions as a Band-Aid on the festering sore of government corruption. The best solutions, though imperfect, are providing transparency and competition in contracting, enforcing existing corruption laws, and promoting the eternal vigilance of a free press and free citizens. All of which can be done without stripping away the First Amendment rights of tens of thousands of Georgians.

• Sean Parnell is president of the Center for Competitive Politics in Alexandria, Va.