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Wednesday, December 16, 2009

Federal Investigation of New York's Working Families Party: Is This Suppression of Political Speech?

Here's a story that has possibly major and adverse implications for anyone involved in American politics.

The Working Families Party (the "WFP") is under federal investigation and received a subpoena this past Monday regarding its operations and those of a for-profit organization called Data and Field Services.  (Read this New York Times story from Wednesday, December 16th here.)

There have been allegations from private parties --- political opponents and such -- that Data and Field Services charged discounted fees to candidates endorsed by the WFP.  The implication is that there has been some sort of illicit arrangement because the discounted fees provide an unfair, if not illegal, advantage to WFP-endorsed candidates.  

This is more critical than one might suspect at first glance, because of the public financing of qualifying campaigns for city offices from Mayor down to City Council.   The public financing system gives complying candidates a "match" of up to six dollars for each qualifying dollar raised from people residing within the candidate's district.   However, the system comes with some strings attached; one of these strings is a restriction on the total expenditures a candidate can make.   As a result, discounted fees would provide a benefit to a candidate.  

This investigation raises some questions.   Should service providers be required to charge the same amount to all candidates?   Aren't there differences in the types of services that may be provided?   Some districts may be different, some races may be different, and that could affect -- by a great deal -- the type, quality and magnitude of the services.  Besides, what business is it of any state or federal prosecutor what a service provider charges a client?   And, if price discounts are considered illegal (which is the suspected premise behind the investigation, although we cannot be sure yet), aren't we moving dangerously close to a point where the prudent service provider must get some sort of "government clearance" (similar to the pre-merger clearance the Justice Department gives to certain corporate transactions with respect to antitrust laws) before rendering services to political candidate clients?  

This investigation might be moving us dangerously close to a point where the Justice Department is essentially engaging in ad hoc rulemaking to govern political players.   If indications prove correct, the use of the government's investigative and prosecutorial powers to engage in what is, at best, government oversight and, at worst, outright government intimidation, of certain political parties strikes this corner as profoundly anti-American and plainly contrary to basic Constitutional principles.  

The WFP investigation, if taken to its logical extreme, may send a message that any political consultant, mass mailing consultant, fundraiser or election lawyer (just to name a few groups of service providers) may have their operations scrutinized because of who their clients are.   How different is this from rank state intimidation of political opponents as occurs in Iran, Pakistan and a host of other non-democratic nations?   Who would blame these service providers from staying away from future political work in order to avoid the hassle of getting embroiled in a criminal investigation?   Merely complying with a subpoena is a thankless and time-consuming effort.   Many service providers will say they don't need the headache and stay away from political clients in the future.    Is it so out of this world to suspect that someone at the Justice Department doesn't have this precise desired outcome in mind? 

The investigation could chill political speech by candidates, parties and other associations.   The First Amendment implications are obvious and very troubling.   We should be very vigilant about this type of case. 

How does an innocent, politically active person avoid becoming embroiled in a criminal investigation?   What activities should the totally risk-averse person avoid?   Now, here's the problem as I see it: One cannot see where the "line" is.   Hence, the cautious approach must be to totally avoid political involvement, as no other course of action carries an assurance of personal safety.

Now do you see where the problem lies?   Is this investigation going too far?   Aren't we criminalizing politics -- or political / electoral success -- a little too much? 

By the way, if the WFP is under investigation, depending on the theory of criminality, how many other parties -- if not all of them -- also warrant investigation?  is it just the minor parties like the controversial Independence Party?   Do candidates get investigated for their contributions to political parties?   Do parties get investigated or prosecuted for their endorsements of candidates, suspiciously after receiving contributions from those same candidates?   Where is the "line" separating the permissible from the illegal?   And, who draws that line?

At this point I fail to see where the criminality is.   Perhaps time will tell -- if charges are filed -- what the theory of wrongdoing is.   However, even if there is wrongdoing (as defined by a grand jury), the supervising prosecutors at Justice and the Manhattan U.S. Attorney's Office should be very mindful of the First Amendment implications of such a case.  

Eric Dixon is a New York lawyer and strategic analyst who engages in crisis management and other matters. Mr. Dixon cautions readers that this article is not legal advice. Mr. Dixon may be contacted for further comment through, or at 917-696-2442. 

1 comment:

  1. I hope that the WF party gets what they deserve and then some. DID you even read the 5 part investigative story by City Hall News, by the time I got done reading that I was about ready to forward all the articles to the authorities myself. If mainstream political parties cant get away with these clear ethical and legal violations what makes you think its ok for the WF party? Oh your probably a Democrat.