Maybe Politicians Should Have Employment Contracts

(Bloomberg Opinion) -- As calls mount for New York Governor Andrew Cuomo to resign, the law professor in me wonders impishly why he's still in office. After all, as critics have pointed out, were Cuomo a CEO, he'd likely be on his way out. But he's not a CEO; he's an elected official; and he has no written contract with any sort of morals clause, or, as has become fashionable, a clause in which he promises not to bring his employer into disrepute.

The question is ... why not?

Well, because elected officials don't sign contracts. Maybe this flows from the separation of powers, but maybe it's simply a matter of historical tradition, the way we've always done things. The protection against malfeasance or misfeasance is, with rare exception, the judgment of the voters at the next election.

But elected officials do make promises. Their campaigns are all about two free chickens in every pot while keeping the barbarians (the opposition party) away from the gates of the shining city on the hill. Okay, this isn't the sort of serious language courts look for in binding people to their words. Yet, with a little help from Ross Perot, maybe we can find a way to use the fluff of campaign rhetoric to construct an employment contract.

It's true that judges have long treated lawsuits to enforce campaign promises as nonsense. In 1914, for instance, a court dismissed a claim for breach of promise against John Purroy Mitchel, the reform mayor of New York, because a candidate's pledge doesn't “give a voter a right to restrain the promisor” from breaking his word.

Such lawsuits are still filed today, with the same result. Remember the Contract with America, the sweeping platform on which the Republicans regained control of Congress during the Clinton administration? In 2006, a federal court dismissed a suit against one of the signees for supposedly breaching it.

Although the cases abound, I've turned up not a single one in which a court enforced a campaign promise.  Why not? Because, as the Louisiana Supreme Court wrote in 1926, “promises made to the uncertain voter cannot be accepted in law as binding. Such a commitment, the justices explained, “is mere political propaganda at best.” Charges of breach are “to be reckoned with at the ballot box and not in the courts.”

“Mere political propaganda.” Suggesting, perhaps, that nobody takes the candidate's promises seriously. Or at least that nobody should.

Yet evidence continues to mount that voters take a candidate's promises quite seriously indeed, particularly when the candidate is viewed as a person of honesty and integrity. An experiment reported in a 2017 paper suggests that voters tend to take explicit pledges more seriously than they do policy positions, because a promise signals the candidate's determination. (This finding might help explain why extreme candidates tend to defeat moderates: The extremist is much more willing to make promises.)

The judges seem to sense this. Even in that 1914 suit against Mayor Mitchel, the court expressed the wistful hope that “some legal method” might one day be developed “for compelling public officials to live up to the platforms of principles upon which they were elected.” And in 1996, a federal court provided a smidgen of wiggle room even as it dismissed yet another suit charging a candidate with breach: “A political campaign promise is legally insufficient to create a binding contract unless it is so intended by the promisor and promisee.” (Emphasis mine.)

Good thought. If we can't impose an employment contract, can we find a way to bind candidates to at least some of their promises? Maybe so — if the candidate also promises a consequence should the promise be broken.

Perhaps the most famous of contract cases is Carlill v. Carbolic Smoke Ball, an English decision from 1893. The defendant promised a reward to anyone who used its product and contracted influenza. When the plaintiff used the smoke ball and got sick, she sued. The defendant replied that the promise wasn't seriously meant. The court ruled that the defendant was liable because the consequence of breaking the promise was so clearly spelled out.

If advertising, why not elections? Sure, most of what candidates say is mere puffery. But it's possible to frame a campaign promise in a way that states a clear and unambiguous consequence for its breach.

Which brings us to Ross Perot. Back in 1992, “Saturday Night Live” did a series of sketches satirizing the billionaire's quixotic run for President. One involved a bet that went something like this: If the economy grew by a set amount, Perot would get a billion dollars. If it grew by less, he'd give the U.S. a billion dollars of his own money.

Although the skit was meant to be funny, it also represents exactly what I'm talking about: an explicit promise of the consequence of breaking his campaign promise. It was about as Carbolic a moment as politics produces.

 That's what we should be looking for and encouraging: Not the promise itself, but the candidate's pledge of what will happen if the promise isn't kept. That's the part that a court might feel comfortable enforcing.

The pledge needn't be as extreme as “If more than two individuals accuse me credibly of sexual harassment, I'll quit” — although such a stance might be welcome. Nor need the promise be to pay billions for breach of contract. Equally intriguing would have been a promise by Donald Trump on the stump in 2016 to give the Treasury, say, $10 million if investigators turned up serious wrongdoing in his administration.

But consider these: “If economic growth in my first year is less than 2%, I'll reduce by senior staff by a third.” Or: “If any of my top advisers is convicted of a crime, I'll give half my salary to charity for the rest of my term.”

That these examples seem farfetched is a part of the problem. Yet the times are crying out for serious accountability. So if we can't make elected officials sign contracts, pressuring them to make enforceable campaign promises might be a useful substitute.

I did find one older case in which the Colorado supreme court ruled that keeping a campaign promise can be wrongful. A defendant was sentenced to prison rather than probation for stealing and killing a cow moved move to disqualify the district attorney, because as a candidate, the district attorney had pledged to members of a local “livestock association” that he would never recommend probation for that crime. The disqualification was proper, wrote the court, because the promise had the effect of surrendering the district attorney's “official prerogative into private keeping.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion 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 his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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