Whose corruption is it anyway?

Last week, the Supreme Court struck down federal limits on aggregate campaign contributions by large donors. The case, McCutcheon v. FEC, concerned a Republican contributor who wanted to make donations of $1,776 to as many congressional candidates as possible. The aggregate limit law, however, prevented him from donating to more than sixteen candidates. He sued, claiming that this law violated his right to unencumbered political speech. While the outcome of the case was never in doubt after the Court dismantled other campaign finance regulations four years ago in Citizens United, McCutcheon nonetheless raised important questions about what kind of corruption we want to defend our democracy against.

The Supreme Court has recognized that donating to candidates is protected political speech under the First Amendment. But this does not create an absolute bar on government regulation over campaign finance. The government can override the individual’s liberty interest in free political speech in order to regulate against potential corruption.

The key question in McCutcheon, then, was what constitutes corruption. Conservatives and liberals have different understandings of what corruption means, and are specifically concerned with fundamentally different conceptions of what is being corrupted.

To conservatives, corruption means moral and ethical corruption of the individual officeholder. They believe that government intervention is justified to prevent bad acts by officeholders that violate a representative duty to their constituents. This focus on the individual’s ethical integrity narrows corruption to conscious decisions to accept goods in exchange for specific political or policy favors – a quid pro quo.

Liberals hold a broader view of corruption. While they too abhor individual corruption, liberals see equally grave harm in systemic corruption of our democratic process. They worry about distorted constituent voice and unequal representation in our political process, believing that government should be able to regulate against such constitutional harm. In McCutcheon, liberals feared that lifting the aggregate contribution limits would lead to party-wide dependence on a narrow band of wealthy donors, skewing our politics.

According to law professor Lawrence Lessig, the Constitution’s Framers largely agreed with the liberal view. Lessig researched the Framers’ written and oral statements about corruption, and determined that they held a concern about corruption that reached beyond a blatant quid pro quo. Instead, the Framers worried about an “improper dependence” on political benefactors. The Framers, then, supported a broader view of what kinds of corruption our Constitution should guard against.

The Supreme Court itself has also previously adopted the liberal view of corruption in judicial elections. Election law professor Rick Hasen explains that, in the 2009 case Caperton v. Massey, the Court agreed that corruption (or the appearance thereof) can sweep beyond an explicit quid pro quo. In that case, a wealthy CEO bankrolled the campaign of a candidate for a judgeship in West Virginia. After being elected, the judge refused to recuse himself when his CEO benefactor appeared before his court with a $50 million lawsuit. The judge then ruled in favor of the CEO. The Supreme Court determined that the CEO’s “pivotal role” in electing the judge meant that the judge should have recused himself – even though “no[] . . . bribe or criminal influence” took place.

I myself find the liberal view of corruption convincing. Sure, unethical corruption of an individual officeholder is bad, but we really only give that ethical wrong constitutional weight because of the distorting effect it has on our democracy as a whole – it leaves a constituency underrepresented and our system of government delegitimized. If it’s the political system that we care about, then I don’t see why the government couldn’t be similarly concerned about the harm flowing from a freewheeling campaign finance regime that leads our political process to over-represent the wealthy and under-represent the many to degrees even greater than ours already does today.

None of this reasoning stopped the Supreme Court from choosing, for reasons largely unstated, the conservative view of corruption. This definition is too narrow to sustain any campaign finance regime that goes beyond regulating against a blatant bribe.

With this regulation brought down, what does McCutcheon portend for other campaign finance rules, such as base campaign contribution limits? Federal campaign finance law limits individuals to donating $2,600 to any one candidate per election cycle. McCutcheon in part suggests that this cap is a linchpin against corruption – that the Court could confidently remove the aggregate limits without unleashing a wave of corruption because the individual contribution limits prevent a single donor from gaining excess influence over a politician.

However, McCutcheon refers to the individual limits as “prophylaxis” – excess protection against the government’s interest in guarding against quid pro quo corruption. In the criminal procedure context, we know that when the Supreme Court labels a rule prophylactic, it means that the rule is not part and parcel of our constitutional protection – the Supreme Court doesn’t see it as being necessary or essential to upholding the Constitution. For example, the Supreme Court had said that the Miranda warnings were not constitutionally required, but were prophylactic protection for the constitutional right for a criminal defendant to avoid self-incrimination. Likewise, the individual cap on political contributions is prophylactic protection for prohibited quid pro quo corruption. There may, then, be ample space yet for the Supreme Court to attack these contribution limits.

But for now, McCutcheon’s direct effect is to expand the project started in Citizen’s United: unlimited spending by the wealthy. Within hours of the decision, political leaders were redialing rainmakers who had maxed out their aggregate contributions. The campaign finance arms race spirals evermore.

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