The Al Smith Dinner: Overthinking Campaign Intervention

At the Al Smith Memorial Dinner, 1960

The Alfred E. Smith Foundation throws a big dinner party every four years around this time.  It invites presidential candidates from both parties.  Individual tickets for the cheap seats start at $5000 and tables can cost upwards of $250,000.  It’s all deductible though, less the cost of what is probably way more than a burger and fries.  This year’s tickets sold out months ago when people thought Biden would be the candidate.  The whole event is a big mutual roast, where the candidates, as invited guests, tell good-natured jokes about the other in friendly rivalry and everybody has a good ol’ time.  There is not much politicking, at least not explicitly. 

Except this year Kamala Harris can’t make it and her absence will be the first time a candidate declined since Walter Mondale back in the 1980s.  The Foundation is sort of an integral part of the Catholic Diocese and the Archbishop has offered only that Harris’s inability is “disappointing.”  Still, the tickets are sold out and Trump said he’ll be there anyway.  Trump is much more NY high life than he is Arkansas back wood.  He just plays an angry redneck on TV so he can win the election and get those indictments fixed. 

So this made me wonder whether it might not be campaign intervention if the Foundation went ahead with the dinner anyway.  It’s mostly just a thought exercise because (1) the prohibition is unconstitutional, though no court has said so yet if you ignore Citizens United, (2) the Service is too smart to ever aggressively enforce an unconstitutional prohibition and (3) even if it is constitutional, it is not capable of reasoned enforcement.  One person’s dinner, drinks, and laughs could be another’s campaign intervention.  We can’t ever really tell, and that sort of chilling indefiniteness is not conducive to free speech. 

Our cousins over at the Nonprofit Law Blog have a real good post summarizing the rules relating to exempt charities hosting candidate forums and debates.  The post doesn’t specifically mention dinner, drinks, and laughs, but its probably enough that the Foundation invited both candidates.  And that it has a history with this sort of thing in which it has never explicitly endorsed or opposed a candidate. Not even when Catholic JFK, Jr. and Protestant Richard Milhouse Nixon appeared.  At a dinner celebrating Al Smith because he was the first Catholic person to run for President.  Imagine that.  What if only JFK attended that time?

This time is a little different though because Trump will be there all by himself hogging all the laughter and “he’s actually a cool dude” adulation. Still the Foundation invited both candidates.   Revenue Ruling 2007-41 has some other boxes to check just to be sure.  The Foundation can’t pass the hat for the candidate and it can’t introduce him as “the next President of the United States.”  But except for Kamala’s absence there is not likely to be an obviously implicit endorsement or opposition. 

A law professor’s best weapon in the classroom are the three words “what happens if.”  And this, by the way, is my point about unenforceability.  What happens if two organizations, one rabidly and stupidly conservative, the other sensibly and smartly progressive invited both candidates.  What if the People for the American Way and Philanthropy Roundtable invited both candidates to their separate events, knowing that one or the other would always decline because the hosts were irredeemable anyway?  Both candidates would get a frosty reception at one or the other events.  I didn’t say which was which, so save your hate mail. But knowing which was which, Trump would always decline one and Harris the other.  Would it be enough to say that both candidates were invited if the organizations carried on anyway with just one candidate? Even if we knew that every Tom, Dick, and Harry organization invites candidates every four years expecting that one will decline, and then in some manner facilitates financial and voter benefits for the one that appears? Or an organization wanting to low-key host its favorite candidate but not the other invites both candidates just for cover, knowing that one will decline.  Context has a lot to do with it.  And we can’t ever really know whether its just dinner, drinks, and laughs, or campaign intervention. 

Maybe I am overthinking it.

darryll k. jones