Hofmeister indictment highlights need for better campaign finance laws (Capitol Updates)

Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1991. He currently practices law in Tulsa and represents clients at the Capitol.

Almost everyone seems to agree that excessive money has fouled our politics in this country, but no one can figure out what to do about it. The latest manifestation of the problem is the surprise filing of felony counts by Oklahoma County DA David Prater against State Superintendent Joy Hofmeister, the leaders of two respected Oklahoma education organizations, and two Republican political operatives.

The shocking case is a tragedy for those charged, their families and close friends, and the entire state, especially public education. It will also be a negative influence in the lives of those close to the situation who were not charged but whose actions will be scrutinized and who will be witnesses at trial. No matter the eventual outcome, a tremendous amount of time, energy, and money will be expended by everyone involved. Looking at the charges and the affidavit accompanying them, it seems unlikely the case will go away quickly or inexpensively.

Some will likely question the motives of the District Attorney in filing the charges. The fact is that filing charges like this against good and well-respected people is probably the last thing in the world Prater wants to do. It’s a lot easier and less risky to prosecute people charged with murder, rape, and robbery. You can be a hero for taking these folks off the streets. Remember, Prater is required to face a trial jury with these charges and prove them with competent evidence beyond a reasonable doubt. And no doubt the defendants will be well represented, as they should be. No matter what the facts show at trial, Prater will be the bad guy to a lot of people.

So why does a case like this happen? It goes back to the money. Someone challenging a well-financed incumbent in an uphill battle is always told they’ll need a ton of money to win. To keep excessive money and influence out of politics, lawmakers have limited the amount a single donor can give. And, under the theory that the public should know who is giving the money, lawmakers have passed disclosure laws. But those with an intense interest in an office or an issue, often for right reasons, sometimes want to find a way to give more than the limit. And those taking the risk of supporting an underdog don’t want it known because if the challenger loses, as they usually do, the donors fear retribution.

Where there’s a will there’s a way. Candidates who can “self-fund” part of their campaign are often recruited. Political Action Committees (PACs) are created so people can legally give more than their individual campaign limit. And now, after some U.S. Supreme Court rulings, there’s a perfectly legal kind of organization where donors, including corporations, can give all the money they want to and keep it a secret, regardless of state law. It’s what they call “dark money.” The limitation here is that those organizations cannot “coordinate” with the candidate or campaign. If they do, all the money given over the limit is considered an illegal campaign donation. That’s what is alleged in the Hofmeister case. Usually the donors aren’t guilty of wrongdoing because they have no way of knowing the coordination is happening. But the people doing the coordinating are in trouble.

It’s a shame, but the only way we’ve found to deal with this mess is to criminally charge people suspected of violating laws that even the best and most engaged among us don’t seem to think are the answer. We need to find a better answer soon.