By Jeremy Berry
“Good government” Democrats have wavered into the peculiar spot of defending former Rep. Aaron Schock, the Illinois Republican who left office last year amid a federal corruption probe, from a bizarre class action lawsuit alleging the ex-lawmaker defrauded the public and campaign contributors through false campaign representations.
Now, Schock’s precipitous fall from establishment graces and the cover of healthy living magazines after appointing his congressional office in the gaudy manner of “Downton Abbey” wasn’t a scandal that kept us awake at night: he was, after all, a strong GOP voice in a blue state.
But this suit, brought by a disaffected former donor who said he was misled by Schock, sets a wildly dangerous precedent for campaign donors to pursue punitive lawsuits to chasten public officials of whose actions, public or private, donors disapprove.
These are the facts: In 2012, Howard Foster made a lone $500 contribution to Schock’s re-election campaign because, he said, the Republican represented himself as “ethical, a breath of fresh air in Illinois politics, and had a bright future in Congress.” But after Schock lavishly spent public funds to redecorate his congressional office and improperly seeking taxpayer reimbursements, the honesty façade fell—for Foster, at least.
The suit Foster brought earlier this year alleges claims against Schock for racketeering, fraud, promissory estoppel (that contributions were predicated on the promise of integrity), and unjust enrichment.
Attorneys for Schock moved to dismiss the suit, arguing in new court filings this month that Foster’s “unprecedented theory would open up a bonanza of fraud claims against politicians by disaffected donors who claim to have been misled by campaign speech.”
Sure, a Democratic campaign finance attorney like me isn’t a natural ally to a Republican who abused his office and the public trust. Whether he formally violated campaign finance law, he leveraged public office for private gain in a manner that plainly violates the spirit of good government.
And yet Schock’s legal team is right: this suit is incredibly dangerous. In practice, such lawsuits would legitimize pay-to-play politicking whereby donors contribute to politicians on the strict condition the politicians satisfy some obligation.
Just imagine the outlandish consequences: contributors could sue law-and-order governors who aren’t perceived to be tough enough on crime, or even austere lawmakers who haven’t erased the federal debt and deficit like they promised in a campaign stump speech.
Donors should give to candidates because they believe in them as agents of positive change—not because they expect some legislative payoff. Like the stock market, there is no assured return on investment: so, too, is there no assurance that a candidate will, or indeed even can, make good on a campaign pledge.
Public officials are already held liable for their actions—that’s the point of elections, after all. If a public servant’s behavior in office falls short of campaign speech, even when that campaign speech was used to solicit contributions, the best recourse for citizens is not litigious but political: vote elected officials out.
Aaron Schock must give an accounting for his actions to the public he served—and also possibly federal authorities—but this dangerously retaliatory suit isn’t the appropriate mechanism to achieve that. That’s called voting. Let your feet, and your wallet, hold candidates and elected officials accountable.
Jeremy Berry, a partner in the Atlanta office of Dentons US, represents elected officials, campaign committees, businesses, and political action committees regarding campaign finance laws and ethics issues.