Behested Contributions: Good, Bad or Ugly?

While we have campaign contribution limits in California, there are plenty of ways to spend substantial sums of money in an attempt to gain access to, or influence over, elected officials or candidates. Individuals and groups can, for instance, spend unlimited sums on advertisements supporting a candidate or denigrating her opponent, as long as those advertisements are not coordinated with the candidate's campaign.

Individuals and groups can also give so-called "behested contributions." These are contributions have been widely publicized lately. They are made to outside organizations at the behest (or request) of a candidate or elected official. This undoubtedly provides individuals or groups who have already given the maximum campaign contribution to a candidate with an avenue to attempt to curry favor with that candidate. In this way behested contributions can be seen as an end-run around contribution limits.

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But behested contributions can do more than make a candidate look with favor upon a particular contributor, they can do a great deal of good to very needy and worthwhile causes. Officeholders and candidates form and support nonprofits and charities that provide scholarships, funding for schools, food to food shelters, and assistance preparing taxes.

As long as these charities are legitimate charities serving worthwhile causes it is difficult for me to argue that these contributions should be curtailed. If contributors are truly giving just to influence politicians and we decide to curtail the amount they can give to charities at the behest of those politicians, then contributors may simply start making independent expenditures instead. I would far prefer this money go to charities and nonprofits. Particularly now, in these difficult economic times, charities need all the money they can get.

The question is a bit more complicated when politicians themselves found a charity. In those cases we must make sure the charity is a bona fide one, and not in a way for the politician to simply raise additional campaign funds.

One solution may be to provide disclosure regarding these behested contributions.
There is no doubt that allowing behested contributions raises concerns about contributors attempting to gain access to and influence over politicians. However, in an era in which it is so easy to spend large sums to support candidates, and so difficult for charities to get the funding that they need, I believe we must live with the less-than-ideal decision that behested contributions must be allowed.

Jessica Levinson writes about the intersection of law and government every Monday. She is a Visiting Professor at Loyola Law School. Read more of her posts here.

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