Reconsidering Corruption

Yesterday, to much fanfare and/or outrage, the U.S. Supreme Court ruled against aggregate campaign spending limits in a case called McCutcheon v. Federal Election Commission. The short of it is that no longer will there be restrictions on how much money a donor can contribute in total to all candidates or political action committees to which he or she wishes to donate. However, the "base limits," which restrict how much money a person can give to an individual candidate or committee, remain in place (for now). In other words, while Bob Donor can only give a certain amount of money to each candidate or committee he likes, he can give to as many candidates or committees as he likes.

The justification for the now-defunct limits on aggregate campaign spending was the same as the justification for the remaining limits on individual campaign spending: the prevention of corruption. The logic is that if a rich donor is allowed to give as much money as they like to a candidate, that candidate will become beholden to the donor, and therefore unresponsive to those who he or she actually represents.

In order to defeat the aggregate limits, the Supreme Court has to do two primary things: 1) perceive monetary campaign donations as "political speech" (and thus protected by the First Amendment); and 2) minimize or invalidate the underlying justification of preventing corruption so that it fails to overcome the high burden of the First Amendment. The Court in McCutcheon does both.

For the sake of discussion, we will assume that the Court is correct (and they are, technically speaking, if and until they later change their minds) that money equals speech. This is a legal fiction, of course, because handing somebody a check or a wad of cash is not the same as saying something out loud, or holding a sign on a street corner, or burning a flag. But money plays a key role in the political process, according to the Court:

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate's campaign.

There are lots of very different activities included in the Court's summary. Voting is not the same as giving a candidate money, nor is it even really the same thing as "urging others to vote," though the candidate may use the money to do that himself or herself. But, all technical nitpicking aside, let us assume that money does in fact equal political speech that may be protected by the First Amendment.

First Amendment protection means the government must have a really good reason to curtail a person's speech or expression. As the Court admits in McCutcheon, preventing corruption is still, theoretically, a "permissible goal" for the government, and therefore a good reason to curtail or limit political speech. But what qualifies as corruption? That definition seems to become less certain the more the Court writes its opinions. In the words of Chief Justice John Roberts, writing the plurality decision of the Court:

We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. "Ingratiation and access . . . are not corruption." Citizens United v. Federal Election Comm'n, 558 U.S. 310 , 360 (2010). They embody a central feature of democracy-that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

There is a reason the Citizens United case is still quite controversial. Though "corporate personhood" and "money as speech" are the common sources of ire for critics, what really matters from Citizens United is its concept of corruption. The only true form of corruption that the Court perceives is "quid pro quo corruption," "a direct exchange of an official act for money." "The hallmark of corruption is the financial quid pro quo: dollars for political favors."

So, in the Court's mind, exchanging money for political favors is corruption, but exchanging money for "ingratiation and access" is not corruption, though, at least conceivably, such ingratiation and access could certainly lead to political favors. It seems unlikely that if political favors were to be doled out, they would go to anyone to whom an office holder wasn't ingratiated or to anyone who didn't have access to that officer holder.

The U.S. District Court for the District of Columbia initially rejected the challenge to the aggregate limits because it envisioned an easily-corrupted world in which aggregate limits were removed. While donors could only give a certain amount directly to a candidate, they could set up dozens or even hundreds of committees that would funnel money to that same candidate. So Bob Donor might be limited to giving $5000 to Sally Candidate herself, but he could give $5000 to forty different committees that all then gave that amount to Sally Candidate, meaning Bob Donor would actually be able to give $205,000 to Sally Candidate. Since few others would have the resources to give so generously, it is not a mental stretch to assume Sally Candidate may feel ingratiated - or more - toward Bob Donor. And Bob Donor would probably feel quite entitled to favors in exchange for his generosity.

While this scenario made sense to the District Court, it made no sense to the Supreme Court because the Court simply does not view giving a lot of money in general as a form of corruption. Though copious examples abound of ingratiation suspiciously leading to political favors, the Court viewed the analysis quite narrowly:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner "influence over or access to" elected officials or political parties...

And because the Government's interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.

One might ask why someone would want to spend large sums of money "in connection with elections" in the first place. Pure generosity? A love for the democratic process? A selfless desire to enable ambitious future leaders? Maybe certain donors feel so strongly about a certain issue or ideology that giving large sums of money to an individual candidate who claims to embrace that issue or ideology just makes emotional sense. I suppose these are all plausible scenarios, but more realistic people might disagree.

It's a tricky subject. It would be folly to argue that every political campaign donation is made with the express purpose of having a candidate do exactly what that donor wants him to do. Sometimes, donors just want to stack Congress, or a state legislature, or the White House, with people they feel will best represent their shared ideology or political goals. That's certainly the case for the vast majority of donors. But the majority of donors couldn't give beyond the now-defunct aggregate limits even if they wanted to. Only a small percentage of our population can do so. Are their massive donations free of corrupt motives? Maybe, but why can't Congress avoid that risk entirely by capping donations in the aggregate?

Because the risk to political speech in general is too great, the Supreme Court now says. And the fact that a wealthy donor might try to gain direct influence over political decisionmaking is "mere conjecture:"

[T]hat an individual might "contribute massive amounts of money to a particular candidate through the use of unearmarked contributions" to entities likely to support the candidate is far too speculative.

We already know that individuals contribute massive amounts of money through the use of unearmarked contributions to entities likely to take specific ideological positions or oppose candidates and sitting politicians who disagree with them. We also know that while Super PACs aren't allowed to give money directly to candidates or coordinate with candidates, they can certainly take "independent" positions in support of those candidates. Is it truly "far too speculative" to predict that this same process of massive donation will be used to benefit specific candidates?

I suppose the real question is, does any of this qualify as "corruption" or is simply result in "ingratiation and access," something less sinister in the collective mind of our Supreme Court? Maybe the Court is correct. Perhaps it is not corruption to let our political system be dominated by super rich interests able to donate massive sums in support of political causes and candidates they support. Perhaps the only behavior that truly qualifies as corruption is bribery - the direct exchange of money for explicit political favors.

In dissent, Justice Stephen Breyer disagreed with the Court's narrow conception of corruption, and argued that a broader conception does not run afoul of the First Amendment:

Corruption breaks the constitutionally necessary "chain of communication" between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress' concern that a few large donations not drown out the voices of the many.

Corruption is more than just bribery. All that "ingratiation and access" Chief Justice Roberts dismisses off hand is in fact "undue influence" that shuts out the majority - increasingly financially weak, and thus "quieter" in the money-as-speech framework - while it elevates the voices of the wealthy minority.

The Supreme Court had previously embraced a wider conception of corruption in a 2003 ruling called McConnell v. Federal Election Commission. In that case (to which there were three separate majority opinions on various issues of campaign finance), a majority led by former Justices John Paul Stevens and Sandra Day O'Connor wrote:

Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.

540 U.S. 93, 153. Thus the Supreme Court has before embraced a larger conception of corruption than mere bribery. To this past precedent Justice Breyer appealed, but to no avail. Today's Court is dominated, at least arguably, by voices more sympathetic to a concept of liberty that conveniently elevates the rich and powerful over the poor and marginalized. The elevation of those with the loudest monetary "voices" to the detriment of the economically quiet is just the price we must pay for constitutional freedoms.

The question that persists in my mind in the wake of McCutcheon is how the government can still prohibit even bribery. If the Supreme Court, dedicated to protecting sacred political speech, is willing to shrink the concept of "corruption" down to bribery alone, why not do away with bribery prohibitions entirely? Is this an absurd logical extension of the Court's reasoning? If political speech, in the form of monetary contributions, is truly so worthy of protection, how can we possibly curtail it for any reason? We do not prohibit a person from verbally asking a candidate - without any monetary exchange - to give them political favors, do we? We also do not prohibit people from working on a candidate's campaign staff in exchange for favors, do we? Even if we did, it would be quite difficult to prove unless money exchanged hands, right? So why prohibit bribery if money is the same as speech or some other form of "participation" in the political process?

If money is speech, then perhaps bribery is nothing more than a very eloquent request for favors. Or maybe it's just a request for ingratiation and access. These terms are tough to keep up with.