Suppose a Maryland politician were to advocate passing a new law that would make it a criminal offense for attorneys to volunteer more than a couple of hours of their legal services on behalf of their favorite candidates in this year's election. Would that strike you as outrageous? Surprise! That is the proposition currently being advanced by the Maryland State Board of Elections.
Who else would qualify as a professional? No one knows because the only source authority is the 1992 private letter ruling, and it only discussed graphic designers. Certainly attorneys and CPAs are professionals. This is significant because, in many political campaigns, CPAs volunteer as campaign treasurers. Other people serve as volunteer fundraisers, volunteer strategic advisers, volunteer finance committee chairpersons and volunteer office managers. Are these people also considered "professionals"? The question is important, for a violation of the election laws by a "professional" could earn the unfortunate volunteer up to six months in jail. And, as more and more volunteers are characterized as "professionals," the greater is the likelihood that the "professional exception" announced in the 1992 private letter ruling will overwhelm and entirely swallow up the clear statement of the law in Section 13- 233.The Maryland State Board of Elections has recently sought the advice of Attorney General Douglas F. Gansler on this issue. In light of the fact that the 2010 campaign is already well under way, we urge Mr. Gansler to complete his analysis quickly. The 1992 private letter ruling was incorrect and unconstitutional when issued and remains so. The attorney general should promptly acknowledge this fact and thus relieve attorneys as well as all other "professionals" in Maryland from any anxiety that they might face imprisonment if they volunteer their time this year in support of their preferred candidates for public office.Editorial Advisory Board members Elizabeth Kameen and Donna Hill Staton did not participate in this opinion.First Amendment issueMaryland's campaign laws prevent anyone from contributing more than $4,000 to any single candidate or more than $10,000 to all candidates over the course of the four-year gubernatorial election cycle. Thus, the 1992 ruling would mean that any attorney who volunteers his or her services on behalf of a candidate for more than a couple of hours each year has, over a four-year period, violated the state's election laws and is subject to being sent to jail for up to six months.In this regard, one obvious question is, "Who is a professional?" The 1992 private letter ruling suggested that a graphic designer performing voluntary work designing a campaign's literature would be considered a "professional." Recently, the Maryland State Board of Elections relied on the 1992 private letter ruling in suggesting that a person serving as a voluntary "spokesman" for a candidate would also be considered a "professional."In ruling that the contribution limits challenged in that case were constitutional, the Supreme Court explicitly stated, "The Act's contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates."End the anxietyRecently, the Board of Elections pulled out of its file drawer an unpublished private letter ruling issued by an assistant attorney general in 1992, which stated that a "professional" who provides voluntary professional services to a political candidate will be deemed to have made an in-kind contribution to that candidate. In such a situation, the value of the in-kind contribution will be computed by multiplying the number of hours spent by the professional times the professional's hourly rate.Who's a professional?The more recent Supreme Court decision in Meyer v. Grant is even more directly on point. In that case, a Colorado law made it illegal to pay people to circulate petitions seeking to amend the state constitution. Stating that such a restriction requires "exacting scrutiny," and finding the rationale for the law proffered by Colorado to be without justification, the Supreme Court overturned the Colorado law as unconstitutional.In light of the fact that it has been held unconstitutional to prohibit paying people to work for a political campaign, isn't it clear that it is equally unconstitutional to prohibit professionals from volunteering their time on behalf of a political campaign? At least in the Meyer case, Colorado had relevant legislative history that it could point to as a means of trying to justify its law; in this case, there is no legislative history on point because the restriction on professionals was entirely the creation of an assistant attorney general in 1992, and the private letter ruling contains no clue as to the basis for the ruling.In its seminal Buckley v. Valeo decision, the U.S. Supreme Court held that the process of electing candidates to public office is integral to the operation of the system of government established by the Constitution and that "legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment."Now the Maryland Board of Elections seems to be determined to not only place limits on campaign contributions but in addition to place narrow restrictions on the rights of professionals to assist personally in the campaigns of their favored candidates.Even more important than the utter lack of statutory support for the proposition advanced in the 1992 private letter ruling is the obvious First Amendment issue inherent in any attempt by the State of Maryland to restrict the right of its citizens to volunteer their time and talents to assist in the election of their favorite candidates.
Editorial Advisory Board members Elizabeth Kameen and Donna Hill Staton did not participate in this opinion.
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