Based on the speech of Campaign Legal Center President Trevor Potter at the “Ending Institutional Corruption” Conference at the Edmond J. Safra Center for Ethics at Harvard University
For the last forty years, the U.S. Supreme Court has grappled with perceived tension between the First Amendment’s Free Speech Clause—which it has interpreted as including the right to spend money to influence elections—and the regulation of political corruption.
This tension has caused the Supreme Court’s positions on campaign finance to swing dramatically through time. Over most of the last forty years of modern campaign finance jurisprudence, the Court has held that corruption, the appearance of corruption, the corruption of “influence” and “gratitude,” even the “appearance of influence” justifies limitations on money in politics. For the last eight years, however, the pendulum has swung the other way in a series of 5-4 decisions, with the new majority limiting “corruption” to the quid pro quo sale of official action, and suggesting that gratitude and access are not corrupt but rather are inherent in representative government.
Indeed, the current Supreme Court majority has gone so far as to redefine how a democratic system should operate, recasting what many previous courts deemed “corruption” as unexceptionable officeholder “responsiveness.” In its 2003 decision in McConnell v. FEC, the Court stressed that lawmakers should remain relatively objective on matters of policy—guided by the concerns of their constituents, but not responsive to their donors. Campaign finance regulation was deemed necessary to avert “the danger that officeholders will decide issues not on merits or the desires of their constituencies, but on the wishes of those who have made large financial contributions valued by the officeholder.” But eleven years later in McCutcheon v. FEC, the Supreme Court expressed a significantly different take. As was the case in McConnell, officeholders were to remain responsive to their “constituents,” but now the Court appeared to include in an officeholder’s “constituents” his donors, such as Mr. McCutcheon. The aggregate contribution limits at issue in McCutcheon were unconstitutional, according to the Court, because:
Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns.
Of course, the aggregate limits did not prevent a “constituent” from “supporting” a candidate—they limited only big donors from making six-figure contributions to a candidate and her party, raising the question about who exactly the McCutcheon majority viewed as a lawmaker’s true “constituents.” Finally, in the Supreme Court most recent decision concerning campaign finance, Williams-Yulee v. Florida Bar, the Court dropped the pretext of “constituents” and suggested that political officeholders can and should be expected to be responsive to their “supporters,” such as donors. In reviewing a restriction on solicitation by judicial candidates, the Court distinguished between judicial and political elections, noting that “[a] State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections, because a judge’s role differs from that of a politician.” The Court then went on to note that “[u]nlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a judge in deciding cases may not follow the preferences of his supporters or provide any special consideration to his campaign donors.” (Emphasis added.)
Why is this debate about the meaning of “corruption”—and the degree of appropriate officeholder “responsiveness”—so important? It occurs because of the Court’s holding in Buckley v. Valeo that regulation of political contributions and spending may only be justified under the First Amendment if it has a tight nexus to the prevention of corruption and the appearance of corruption. The government may not regulate to “level the playing field,” or to limit spending so that “too much” money is not raised and spent in elections, or for other public policy reasons. So if a campaign finance restriction is unlikely to prevent “corruption,” it is likely to be struck down as unconstitutional.
To fully appreciate the transformation in campaign finance jurisprudence on this point, it is useful to review briefly the Court’s journey through changing definitions of “corruption” and the “appearance of corruption” in several key decisions over this period:
Buckley v. Valeo – 1976
In the seminal Buckley case, the Court explicitly rejected the argument that anti-bribery laws provided a sufficient alternative to the contribution limits in the Federal Election Campaign Act. The Court recognized the dangers posed by wealthy individuals gaining influence over politicians through large donations, even if this activity did not fall under the strict definition of bribery:
The primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.
The prevention of the mere appearance of corruption resulting from large, influential donations was declared by the Court to be a compelling interest to limit contributions.
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. (Emphasis added.)
Finally, the Buckley Court stated that disclosure of donors was not enough to eliminate the risk of corruption or the appearance thereof:
[L]aws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed. (Emphasis added.)
McConnell v. FEC – 2003
In McConnell, the Supreme Court upheld the Bipartisan Campaign Reform Act almost in its entirety, and in so holding, affirmed the principle that the danger of undue influence of large donors is not limited to the basic definition of quid pro quo bribery. A powerful corporation or individual need not buy votes outright, but rather can buy influence and access with the same result: preferential treatment from those who write the law of the land. The Court noted:
[I]n speaking of improper influence and opportunities for abuse in the addition to quid pro quo arrangements, we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliance with the wishes of large contributors.
. . .
More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing undue influence on an officeholder’s judgment, and the appearance of such influence. Many of the deeply disturbing examples of corruption cited by this Court in Buckley to justify the contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. Even if that access did not secure actual influence, it certainly gave the “appearance of such influence. (Internal quotations and citations omitted.)
The Court’s majority took on Justice Kennedy’s interpretation of the First Amendment expressed in his dissent, stating that it failed to take into account the undue influence that wealthy interests can wield beyond direct bribery.
Justice Kennedy’s interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. 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. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation.
Significantly, the 5-4 majority of Justices that upheld this reform law included Sandra Day O’Connor, the last Justice to have run for elective office or served in a legislative body (and thus to have known first-hand how the sausage was made).
Citizens United v. FEC – 2010
In Citizens United, the Court took a sharp turn away from its traditional jurisprudence on corruption. Instead of viewing access and influence as the corrupting factors, the Supreme Court under Justice Roberts shrank the definition of corruption down to the explicit exchange of money for votes.
Justice Kennedy’s opinion stated that the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt:
Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness. (Quotations omitted.)
Justice Kennedy then concludes with an unsubstantiated statement of fact clothed as a legal finding: “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
McCutcheon v. FEC – 2014
In McCutcheon, a challenge to the federal aggregate contribution limits, the Roberts Court continued to narrow the definition of corruption, reiterating that only quid pro quo exchanges are to be considered corruption. With this conception of corruption as the backdrop, the Court came to the conclusion that the aggregate limits were not justified by any important governmental interest and consequently are prohibited by the First Amendment:
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. (Internal quotations omitted.)
Key to understanding this debate about what is and is not corrupt is that the Supreme Court’s interpretation of “corruption” will ultimately completely determine the parameters of permissible regulation of campaign finance speech under the First Amendment.
It is clear that “corruption” is being narrowly defined to avoid providing a constitutional basis for regulating money in politics. This was confirmed by Justice Roberts’ opinion last week in Williams-Yulee out of Florida. There he held that judges are not “politicians,” even if they run in elections. The state has an interest in preventing the appearance of the sale of access by judges through their solicitation of campaign contributions, he wrote, because judges are supposed to be impartial and be seen as impartial. The converse is that mere politicians are expected to be “responsive” to their donors—that is the nature of our political system, in the perspective of the Chief Justice. Good news for those concerned about corruption of our judicial system—less heartening news for those concerned about the other two branches of government. Thus, while the Court’s conception of corruption may have remained constant in connection to judicial elections, its understanding of corruption in connection to political elections is considerably narrower today, and its acceptance of political “responsiveness” at an all-time high.