When the Law is Used to Stifle Competition

August 10, 2006   •  By Brad Smith   •    •  
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One of the serious problems with campaign finance laws is that they quickly become campaign weapons. Candidates, parties, and outside groups all routinely file charges against their opponents, often over minor or technical violations or on the thinnest of legal grounds. The goal is less about finding of a violation or any concern about preventing “corruption” than it is about harassing the opponent, making him spend money on lawyers instead of campaigning, and forcing him to waste time and look bad answering vague charges that few voters understand, but that may sound bad in the abstract. This inevitable use of the law as a campaign weapon doesn’t mean that the laws should be repealed, but it is a real cost that must be considered when the subject of campaign finance regulation is raised.

Increasingly, we are seeing that other election laws can be put to similar use, reducing competition and depriving voters of choices. For example, in Texas, former House Majority Leader Tom DeLay, caught up in a variety of scandals, chose not to seek re-election. Moving his residence to the Washington, D.C. area, Representative DeLay withdrew from the race for his House seat, and Texas Republicans sought to replace him. However, Texas law makes it difficult to replace a candidate nominated in a primary, and Texas Democrats successfully sued to prevent the Texas GOP from naming a replacement candidate. The end result is that voters in the District will not have a Republican on the ballot in November.

Similar things are now happening in Ohio, where another scandal-plagued Republican, Bob Ney, last week dropped his bid for reelection. Republicans immediately moved to replace him with popular State Senator Joy Padgett, but Democratic lawyers are already considering ways to keep Padgett off the ballot, and news coverage has focused less on the election than on whether Padgett can be kept off the ballot. The ostensible grounds for keeping Padgett off? In the primary, she ran for Lieutenant Governor and lost. Ohio has a “sore loser” law intended to keep losing candidates from running in the general election. Though clearly not intended to apply to situations such as this, some Democrats are arguing that it does prevent Padgett from running.

Of course, Democrats are not the only ones who can play this game. Also in Ohio, Congresswoman Deborah Pryce faces a tough race against Mary Jo Kilroy in a district that George Bush barely carried in 2004. Charles Morrison, a conservative businessman who had twice challenged Pryce in the Republican primaries in the past, sought to get on the ballot this year as an independent. The Republican Party petitioned the state elections board to keep Morrison off the ballot on the grounds that he is not an independent, but a Republican! The Secretary of State ruled in the Party’s favor – the matter is now in the courts.

Another example comes in Pennsylvania , where the state Democratic Party is challenging the signatures submitted to get a place on the fall ballot by Green Party candidate for U.S. Senate Carl Romanelli. Even though the Greens are a qualified “political party” under Pennsylvania law, they are required to submit 67,000 signatures to gain a place on the ballot. Romanelli has submitted over 90,000, but Democrats are arguing that many of these are fraudulent. Democrats fear that Romanelli will take votes away from their party’s candidate, Bob Casey, in his race with incumbent Rick Santorum.

These are only the most prominent examples of efforts to use the law to reduce or eliminate electoral competition this year. We will not voice an opinion here as to who is right or wrong, as a legal matter, in any of these disputes (although I have told reporters that I believe that Ohio’s “sore loser” law does not in fact prevent Padgett’s candidacy – see also Ohio State Moritz School of Law Professor Dan Tokaji’s thoughts). For example, if in fact many of the signatures Romanelli has submitted in Pennsylvania are fraudulent, then as a legal matter he would appear not to be entitled to a place on the ballot. We do not advocate ignoring the law.

Rather, our point is that most of these laws are needlessly strict. There is no need for Texas to make it so difficult to replace a candidate who chooses to withdraw from the race. Ohio’s sore loser law serves little purpose – Connecticut law, for example, allows Joe Lieberman to run as an Independent after losing the Democratic primary, and this hardly seems destructive of the state’s election process. Similarly, what state interest is served by keeping Morrison off the Ohio ballot? In Pennsylvania, election fraud, if it exists, should not be tolerated. But is it really necessary to require so many signatures for a third party or independent candidate to get on the ballot in the first place? We think not. Indeed, there is little reason to think that more than a few hundred, or at most a few thousand signatures are needed to address any concern that the state has about assuring orderly ballots. See Bradley A. Smith, Judicial Protection of Ballot Access Rights, 28 Harvard Journal of Legislation 167 (1991). To turn once again to the current example of Connecticut, Joe Lieberman needed just 7500 signatures to run as an independent.

One goal of an electoral system, we think, should be to have elections decided by voters, not legal teams and judges. One way to assure that voters make the decisions rather than courts is to make sure that campaign finance and other election laws are truly necessary, and no more extensive in their reach than absolutely necessary.

Brad Smith

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