State Awaits Ruling on the `King-Maker Rule'

by Deborah Povich
Executive Director
Common Cause/Maryland

When my colleague in Virginia argues for campaign and lobbying reforms, legislators there dismiss the need with, "This isn't Maryland, you know."
Actually, we are way ahead of Virginia in the areas of election and ethics laws, but vigilance is needed to protect our fledgling reforms.
Since 1991, Maryland lobbyists have been prohibited from serving as chairs or treasurers of political committees, and from soliciting and transmitting contributions to candidates for legislative offices. Just this year the General Assembly extended that prohibition to candidates for state-wide offices.
Almost six years after the original law took effect, a suit was filed in Federal Court that alleges a lobbyist's First Amendment rights are violated by this prohibition. The party suing, Maryland Right to Life, claims their registered lobbyists must choose between their right of free speech and their right of association.
Often campaign finance issues are fought on the front pages of the newspaper, with changes enacted only after scandals are brought to the public's attention. But this issue is being battled out in court. The decision could reverse, or affirm, reforms passed by the Maryland General Assembly that prohibit lobbyists from bank-rolling state candidates' campaigns.

Maryland has a long and sordid record of mixing money with politics. In an effort to change the state's reputation, some legislative leaders have made a concerted effort to move the funding of campaigns from the wealthy and well-connected to a broader base of small donors. These leaders recognize that campaigns that rely on funding by a few allow those few to have a disproportionate impact on the state's agenda.

Money Equals "Speech"
In the 1990 election, an overwhelming majority of legislators received campaign funds from Maryland's highest paid lobbyist. Because state law sets an aggregate limit on the amount of money one individual can give to all candidates ($2,500 per election at the time; now up to $10,000 in a four-year cycle), much of the money was funneled through political action committees (PACs) controlled by that lobbyist. By bundling other people's money, this lobbyist, and others, amassed an enormous amount of power and influence. In 1989, a full 18 months before the election, a Common Cause/Maryland study revealed 116 of the 188 members of the legislature had received campaign contributions from PACs controlled by one lobbyist, Bruce Bereano.
After the election, the President of the Senate, Mike Miller and then-Speaker of the House Clay Mitchell proposed several campaign reforms which included setting the first-ever limits on PAC contributions in Maryland, and prohibiting lobbyists from fund-raising for General Assembly candidates. These proposals had been recommended by an election law commission in 1987 but met with legislative failure for years. It took the spectacle of witnessing a lobbyist-as-king-maker to produce the momentum needed to remove lobbyists from exercising undue influence in election funding.
With the support of the legislative leadership, lobbyists' role in fund-raising changed.
Protections were put into the law that allow registered lobbyists to fully participate in elections by making their own contributions. (Money is considered "speech" in politics and thus is constitutionally protected.)

Reining In Influence
In the case now pending in Federal Court, the state argued in defense of Maryland's law, noting that the law is narrowly tailored to serve a compelling interest-preventing corruption and the appearance of corruption. That's the issue in a nutshell. The Supreme Court has allowed limits on constitutional rights if they target a specific compelling interest in preventing corruption and the appearance of corruption.
It is no surprise that the plaintiffs asked to suppress documents about Mr. Bereano's criminal conviction for illegally billing clients for what were in fact campaign contributions. A criminal conviction makes a strong case for corruption. At the hearing the judge said that since the lobbyist's conviction occurred in the same circuit where the case was being heard, the Court could take note of the conviction.
Obvious conflicts arise when the very people paid to influence legislation are the ones making decisions about where a PAC will invest its money. When lobbyists control the purse strings of PACs, their influence increases. The potential for quid pro quo abounds.
We lobbyists are regulated in many ways. Despite our private sector status, our salaries are public information. So are our gifts to elected officials. They should be. The public has a right to a government free of the undue influence of money. Though this is not the government we have now, Common Cause and reform-minded legislators are taking steps to make it a reality. A court decision reversing the important reforms Maryland has enacted would be a move in the wrong direction.
The consequences of a campaign funding system that favors special interests are public cynicism and distrust of government. Limiting a registered lobbyist to "only" making $10,000 in political contributions in a four-year cycle, without being able to bundle other people's money, is a small price to pay for a little trust. If the state doesn't win this case, the public will lose.

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This story was published on August 6, 1997.