Introduction

Article excerpt

Contributions of huge amounts of money by wealthy individuals and corporations to American political campaigns have a long and sordid history. For example, in 1860, New York Democrats put together a Fusion slate so voters could vote against Lincoln without dividing their votes among the three Democratic opponents. (1) New York merchants contributed substantial funds. (2) Reports stated that William Astor had given $1 million to the campaign. (3) This was $27,780,000 in 2013 dollars, at a time when there was no radio or television on which to spend it. (4) The campaign was for New York State presidential electors only. (5)

In 1896, Mark Hanna was widely reported to have raised and contributed $3.5 million to elect William McKinley to the Presidency. (6) This was equivalent to $94,605,000 in current day dollars. (7) That amount was solely for the national effort.(8) State party committees at the time bore the major burden of raising and spending for the Presidential campaign. (9) Where did the money come from? All banks and large corporations were assessed a percentage of their profits. (10)

How and where was it spent? With no TV or radio, one can only imagine the payoffs that were made.

In the 1960 presidential election, it was an open secret that Joseph P. Kennedy spent millions of dollars to make his son the President. (11) The exact amount is uncertain since no disclosure was required. There are many stories of the bundles of hundred dollar bills used in the 1960 campaigns. (12) Both contributions and expenditures were commonly made in cash. (13)

The lack of disclosure of campaign contributions and expenditures in the first 160 years or so of our Republic does not mean there was no recognition of the potential for corruption. Indeed, succeeding to the Presidency upon the death of McKinley, Theodore Roosevelt led the successful charge to pass a ban on corporations contributing to federal campaigns. (14)

However, the realization that money was corrupting elections went back further than the early twentieth century. The earliest casebook on American election law of which I am aware is A Collection of Leading Cases on the Law of Elections in the United States. (15) In its 766 pages, there is but one mention of campaign contributions. (16) It arose in the context of a suit for a debt for rent. (17) In 1840, the plaintiff had erected a log cabin on Broadway in New York City at the request of the defendant. (18) The log cabin was intended for public and other meetings of the Whig Party and for the sale of refreshments. (19)

In August of 1840, the plaintiff announced that he would be taking down the log cabin because he was losing money. (20) It cost the plaintiff $1,600 or $1,800 to build the cabin. (21) A subscription was opened and $200 was raised. (22) The defendant told the plaintiff that he wanted the cabin to be kept open until after the election and that he "would not permit the whig flag across Broadway to be struck." (23) He promised to raise the balance of $1,000 or pay it out of his own pocket. (24) The plaintiff kept the log cabin open until after the election. (25) The plaintiff sued the defendant in New York City Superior Court for the promised amount. (26) The defendant alleged that the contribution of $1,000 for a campaign headquarters was illegal and thus his promise of payment for such was unenforceable. (27) After the trial judge denied the defendant's motion to find the contract illegal, the jury found in favor of the plaintiff. (28) On appeal to the Supreme Court of New York, the judgment was reversed on the grounds that a contribution for a campaign headquarters was illegal under an 1829 statute. (29)

In an effort to ensure the "purity of elections," the New York Legislature had enacted a statute making it unlawful (a misdemeanor) for any candidate or any other person to pay for, or contribute any money for any "purpose intended to promote an election of any particular person or ticket, except for defraying the expenses of printing, and the circulation of votes, handbills and other papers, previous to any election. …