An Appearance of Impropriety

I am a lawyer, licensed in Texas in 1977.  When in law school, I first learned of the concept of “appearance of impropriety.”  My professors indicated that attorneys are held to a higher standard of ethics than the general public.  This notion has particular application when lawyers practicing before a particular Judge have interactions with that Judge outside the courtroom.  Certainly, conferring with a Judge regarding a matter pending before that Judge, without the presence of the lawyer for the other side, is clearly inappropriate. Such conduct is known as an “ex parte” communication, a phrase meaning that it took place without the other side being present.

Beyond that is the need to avoid even the “appearance” of impropriety.  This is because those who are being judged by others must have the utmost trust in the impartiality of those who are to decide their disputes.  Without this trust, the integrity of the system is in question, and the willingness of the public to submit their disputes to judges for decision, without resorting to “self-help”, is diminished.

Campaign finance restrictions grow out of this concept, in my view.  The laws governing contributions to candidates are intended, at their core, to get at our desire that those who make our laws not be unfairly influenced by those who contribute money to their campaigns.  Since we all know that “money talks”, the issue for all voters is that the interest of the general public should not become less important than the interests of some voters with money to spend on campaigns of public officials or candidates.

Recent Supreme Court decisions have recognized that the rights of “free speech” inure to the benefit of corporations, and also extend to the right to freely express one’s thoughts (spend money) in support of a particular candidate or position.  This notion has been used as a sword to strike down laws which attempt to provide public funding to candidates.  The idea of the current Supreme Court majority is that if a law provides that public funds are made available to candidate A, when the private funds spent by candidate B reach a certain level, then such a law is an unconstitutional restriction on the right of candidate B to spend his/her money.  Why? Because candidate B will not want candidate A to receive money for free, so candidate B will necessarily limit his/her expenditures of private money so candidate A will not get more free money.
See how this works?  Since the people with money might be less likely to spend their money on a campaign if it results in another candidate getting money for free, then this is an unfair restriction on the people with money.  In other words, the Court strikes down an attempt to limit access of candidates to money by holding that such attempt reduces the advantage of the people with money to give money to candidates.  The answer to this argument of course is: obviously it does just that.  The point of the laws restricting campaign expenditures is to STOP the flow of private money to candidates, because, as we all know, money corrupts.  At a minimum, the money flowing to candidates from private interests, WHOEVER THEY ARE, improves the chances those who write the checks will get influence over, or at a minimum, ACCESS to the candidate.

This access is the very thing such laws seek to reduce. To use a phrase not often used by lawyers, but commonly used by laymen; DUH!

Back to my original point: at a minimum, our system should be run by leaders who are not beholden to a particular donor or interest; rather, our representatives should seek to find what is in the public interest, and make laws consistent therewith.

Long ago the Supreme Court decided a free speech case, making clear that laws can limit speech in certain instances, such as when one yells fire in a crowded theater.
The idea: speech that is harmful or dangerous to the public, simply by its utterance, can be constitutionally prohibited.  Speech that in itself causes there to be a “clear and present danger” to the public can be prohibited.

Restricting the flow of money to those who make our laws is laudable, and as the loss of faith in the impartiality of our leaders so painfully shows, such restrictions would contribute to the integrity of our system.  Assuredly, the “clear and present” danger we face is that without such laws, our citizens lose faith that our government is on the “up and up”.  Once that is lost, we lose our essence, which is that the government be “of the people, by the people and for the people.”  Surely this is not really debatable, is it?

More to come re: the solution to this problem – a Constitutional amendment which will insure that laws restricting speech (spending) in political campaigns cannot be struck down as unconstitutional.

By Mike Holloway.  Mike grew up in a family immersed in Austin politics; educated in government and law at UT-Austin; disturbed by influence of money in politics, interested in increasing the influence of ordinary citizens on our government; says he loves America as much as those who constantly are trumpeting how much they love it.  He wants to prove it by working on clean elections.

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