Could be shorter.

Source: Library of Congress

Pay Candidates to Drop Out? That Should Be Legal

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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What if Donald Trump took the money and ran?

The money to which I refer is $150 million -- the amount that an unnamed former Trump adviser, probably in jest, told Politico it would take to get the presumptive Republican nominee to drop out of the presidential race. The candidate responded that the notion was ridiculous: “I will never leave the race, nobody has enough money to pay me to leave the race, and if they did, it would be totally illegal anyway.”

Of course anybody can pooh-pooh an offer that is not actually on the table, and I doubt that anyone will come up with the cash. But suppose someone did. There’s precedent. In 1884, worried supporters of James G. Blaine, the Republican presidential nominee, tried to bribe former Kansas governor John St. John, candidate of the Prohibition Party, to leave the race. St. John refused. (Blaine would probably have lost to Grover Cleveland anyway.) If some group of wealthy Republicans decided to follow the 1884 model, is Trump right that any bargain would be illegal?

Probably. The laws exist, and they’re enforced. Just last month, a city council candidate in South Carolina was arrested on charges that he had solicited bribes to drop out of the race. Similar prohibitions are common in other states. Utah, to take one example, even highlights the point in a leaflet advising candidates about election law: “You also cannot bribe other candidates to drop out of the race, to stay in the race, or to perform any other action.”

But should it be a crime to pay a candidate to leave the race? I vote no. Individuals are usually the best judges of their own preferences, and if a particular individual decides that he prefers a sum of cash to the rigors and risks of the campaign, it’s hard to see why the state should interfere. The candidate is better off because he gets what he wants. The voters are better off because they get to choose among people who actually want the job.

We rightly make it illegal to bribe voters.  Similarly, we punish candidates who make certain types of promises in return for contributions. I might wink and nod, but if I explicitly offer to vote for your highway project in exchange for campaign funds, I can go to prison. The theory behind such prohibitions is that promises of money should not influence a candidate’s performance once in office. That theory would hardly seem to cover a decision on whether to stay in the race.

Absent infringement of a fundamental right, it isn’t the state’s business how parties winnow the field. Rival candidates often negotiate over what it would take to get one of them to drop out – and not only by offering plum jobs or speaking slots at the convention. When a leading fundraiser for Barack Obama told a reporter in 2008 that he might be willing to help Hillary Clinton pay down her campaign debt but “first she has to drop out,” it would have been absurd to investigate the implicit offer as a violation of election law. He was just doing what supporters do.

After Scott Walker ended his campaign late last year, Ted Cruz offered to raise money to help pay off his debt. A few months later, Walker endorsed Cruz. Maybe there was no quid pro quo. But even if there was, no state interest would be served by banning the practice.

Why not? Consider. Most candidates enter the race believing that they have fair prospects of winning. No doubt many of them lack a rational basis for this belief. But although each candidate presumably enters the race preferring to be the nominee, each also knows from the start that the voters might choose someone else. If this is so, then the knowledge that in the right circumstances another campaign will help pay off campaign debt operates like an implicit subsidy, increasing the supply of candidates. The more candidates, the greater the chance, to paraphrase the political scientist V. O. Key, that voters will find the one who’s not a rascal.

Of course there may be an optimum number of candidates, and having too many can distort the normal flow of information to voters, as seems to have happened to the Republicans this cycle. But nobody knows what the optimum number is, so there is no reason for the state to prohibit such bargains and thereby remove the implicit subsidy.  The same reasoning would seem to apply to paying a candidate, even the front-runner, to drop out.

In the Politico piece, the legal scholar Jim Fishman offered a clever way to circumvent existing laws by structuring a hypothetical payment to Trump as an interest in a hedge fund. I am sure Fishman is right that the plan wouldn’t violate the law. But there should be no law here to violate. If a candidate is willing to leave the race in return for money, we’re all better off letting him go.

  1. It’s illegal under federal law to intimidate or coerce a candidate into dropping out (18 U.S.C. §245(b)(1)(A)), but the Justice Department’s guidelines for prosecuting election crimes do not even mention paying a potential nominee to step aside. Almost the entire volume is devoted to efforts to influence voters, not candidates. The only exceptions involve restrictions on campaign finance.

  2. Here “rightly” doesn’t mean bribery will succeed. The voter bribery problem is generally regarded as computationally complex -- that is, in most cases it’s difficult for the would-be briber to predict whether the scheme will work.

  3. I pass the point that reducing the numbers makes it less likely that an outsider will win the nomination, because one’s view of the matter depends on whether one has a general view that the handful of outsider nominees were better than those expected to contend.

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