Mimesis Law
19 September 2019

Keep Big Money Out of Local Prosecutor Races

November 18, 2016 (Mimesis Law) – The general consensus is that elections are a good thing. Sure, banana republics and dictatorships worldwide have elections, but they don’t count. Western-style elections do count and are better, so we say, because they are considered free, fair, and open. But elections in the U.S. may not live up to the advertising. Consider the following.

American elections are racist. Voters only have two parties, which is thought to be destructive. This year in particular, voters had poor candidates from which to choose. Many local races are uncompetitive. Elections cost both the candidates and the counties too much. Congress even tried to eliminate free speech in elections because of critical advertisements. No wonder that a third of people don’t register and roughly half that do register still don’t vote. It’s such a democratic paradise some have suggested compulsory voting. No doubt the required fashion of the day will be a Chairman Mao jacket.

While we tell the world the wonders of elections and democracy, we have slowly edged away from direct elections of certain public offices like judges. Many cities have decided that unelected professionals are better than some person who must face the voters. We’ve even added an entire branch of the federal government that is largely insulated from the results of elections. But every celebrity, elected official, and social media company reminds us every November of the importance of voting because that’s how your voice is heard—except all the times it is not.

George Soros likes to make his voice heard, by benefit of wads of cash. Over a decade ago, Soros set up the PAC Moveon.org to influence elections. He then turned his attention to getting Democrat secretaries of states elected. It appears that like the Koch Brothers, he figured out that spending millions on presidential and high profile races often bears little fruit. This is because even a figure like $10 million is relatively insignificant in a two billion dollar presidential race. On the other hand, $147,000 donated to a county-level race is usually a significant sum.

That’s the amount a Soros backed group gave to Democrat Darius Pattillo to defeat Republican Matthew McCord. The race was not the typical high profile position like state legislator—it was for Henry County district attorney. Faced with a 12-to-1 fundraising deficit, the Republican dropped out, leaving the Democrat unopposed.

This was not an isolated incident. Over the past two years, Soros has dropped $7 million into 11 prosecutor races, winning 9 of them. In two of the nine wins, the Republican dropped out rather than face the oncoming train. In addition to the money, the PAC brought in professionals to help get out the vote and support the candidate. Frankly, it seems miraculous that any of the Soros-backed candidates managed to lose.

Soros is a fascinating person. First surviving Nazi-occupied Hungary by posing as a Christian (he was a non-practicing Jew),he then immigrated to England and made himself into a billionaire. He’s a fan of Karl Popper and fancies himself a philosopher, with a unique view on finance and money. While he’d probably maintain that he sees the financial markets more clearly than others, his approach has led to some friction with regulators.

In any event, Soros is an American citizen with a keen interest in America and the means to have his voice heard. And so long as we continue to view political contributions and political spending as protected speech, he has the right to spend money to get his views and candidates in front of voters. Strictly speaking, the issue isn’t that his money entitles him to such a loud voice that is it forces a candidate to withdraw and leaves his candidate unopposed.

There are at least two things of concern by Soros’ action here. First, is that county elections are generally thought of as local elections, though a bit less local than township or municipal races. The general theory of democracy is that the pool of voters are entitled to decide their own representation and pursue their own interests. Technically, Soros placing his thumb on the scale does not change the local nature of the election, it does in reality.

Consider a county with a relatively even partisan split. Large sums of money and get out the vote efforts can tilt the outcome, which it appears to have done in 7 of the 9 contested races. This victory does not represent a win on the merits of policy positions or even the relative suitability of the candidates, but rather on who did a better job of getting their partisan voters to vote in a specific race.

There are no tears shed when this sort of thing happens, but the difference is Soros is not from these communities and has little to no connection to them. He’s an outsider with no real stake in the outcome, who is trying to pick winners and losers. And he can do so without any ownership of the result or living with the consequences of either the campaign or the outcome. Soros may have the free speech right to spend money on these races, but it is anti-democratic when he does so.

The second reason is the office of prosecutor itself. While in most states it is a partisan office, like judicial officeholders, the better prosecutors tend to view themselves as from politics but not of it. Charging decisions should not be based on what political party the accused is or whether it will help or hurt the political machine. When prosecutors lack independence, their decision-making should be questioned.

Although most prosecutors are elected and are partisan offices, they can and do lose primary elections. This suggests that voters can consider performance issues and boiling the race down to an R v. D is unnecessary and possibly counterproductive to maintaining prosecutor independence. Outside of the partisan nature of Soros’ spending is that it appears to be rooted in policy matters, such as the issues raised by Black Lives Matters.

This appears to be an end run around the system. Prosecutors, by and large, are not policy-making positions. Certainly, as is the case at the federal level, broadly written statutes and numerous criminal statutes vest prosecutors with charging discretion, but it’s not the same thing as true policy making. For example, an office may not have enough funding to aggressively prosecute low-level drug possession, but it is not the same thing as a bill decriminalizing small-quantity-drug possession. And prosecutors who unilaterally decriminalize conduct by not charging it violate their oath and upset the separation of powers.

Further, it is not clear why Soros is targeting prosecutors rather than sheriffs. While it has been argued that prosecutors are the key to reform, they operate downstream from law enforcement. The hiring, training, discipline, and policies are controlled by the law enforcement executive, such as the sheriff. Thus, they are in a much better position to stop police use of lethal force than prosecutors.

Similarly, judges—not prosecutors—impose the sentence. And mandatory minimums are set by the legislature. So, if the complaints about over-criminalization are to be addressed, it will have to be through other offices. Unless, of course, the hope is these prosecutors will charge misdemeanors instead of felonies, or agree to made up charges to avoid the prison time the legislature has set for the conduct at hand.

Soros, like the Koch brothers, is painted as the bogeyman. But he has the right to be as concerned and involved in politics as your barber. Along with that comes the right to spend money on campaigns. But that does not mean that Soros is making the right decision here on how to achieve criminal justice reform.

His methods threaten the independence of prosecutors, and invites policy-making by an executive branch official that should not be directly setting policy for the county or state. But the cost/benefit says it is easier to cherry-pick prosecutors, invite them to engage in mischief, than it is to achieve real reform with a legislative majority and governor.

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