In McConnell v. Federal Election Commission (2003), Justice Anthony Kennedy wrote: “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.” (emphasis added) That is a striking choice of words.
Why the two categories? Is the phrase “voters and contributors” just a legal redundancy like “cease and desist”? Or does it describe distinct, albeit overlapping, categories? To the extent that they are merely overlapping, is a contributor someone or something entitled to the same constitutional solicitude as a voter? Or, to the contrary, does the Constitution reflect a concern for limiting the influence of wealthy contributors as Professor Lawrence Lessig argues in his amicus brief?
The answers to these questions matter for how we think of “corruption or the appearance of corruption,” which is, the parties agree, the principal legitimate basis for governmental regulation of the electoral process, including the aggregate contribution limits at issue in McCutcheon v. Federal Election Commission. The background precedent however, provides conflicting guidance.
Public confidence in electoral system
On the one hand, ever since Buckley v. Valeo (1976), limitations on campaign expenditures have been subjected to strict scrutiny review. This standard makes it harder to impose limits on expenditures. Predictably, expenditures have soared to the billions of dollars. Moreover, in Arizona Free Enterprise Club v. Bennett (2011), the Court expressed disapproval of any goal of “equalizing electoral funding,” and in Citizens United it held that restrictions on corporate expenditures were not consistent with the Constitution. Finally, in Randall v. Sorrell (2006), the Court struck down contribution limits it thought were too low. Taken together, these cases suggest that perhaps contributors are just like voters for constitutional purposes.
On the other hand, Buckley itself recognized that limits on contributions may be important to reduce “the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual contributions.” And in subsequent cases the Court has continued to adhere to the distinction between contributions and expenditures, observing that the expressive interests of contributions are minimal compared to those of expenditures, while the potential for the appearance of corruption may be substantial with contributions that do not have the offsetting benefit of constituting speech to voters. This suggests that a restriction on contributions is necessary, lest the public lose confidence in the integrity of the system.
Unfortunately, it appears that the public already lacks confidence. The evidence, adduced in the various amicus briefs supporting the Federal Election Commission, suggests there is a low level of public confidence in the integrity of the electoral system and a generalized dissatisfaction with the influence of money.
Professors Nathaniel Persily and Kelli Lammie note in their 2004 study of public perceptions of electoral and governmental corruption: “[W]e must admit that large shares of the American population distrust their government and believe the campaign finance system is a source of undue influence.” Yet, they also observe that even in countries with much stricter campaign finance regimes people express a similar distrust of government. Accordingly they conclude: “For those who would look to campaign finance reform to restore ‘confidence in the system of representative government,’ they may be disappointed by the intractability and psychological roots of that lack of confidence.”
Given the level of spending in the last election cycle, it is hard to believe that the aggregate contribution limits are doing a great deal to boost public confidence, let alone that they are a “bulwark” against the appearance of corruption, as House Democrats claim. The problem may be that expenditures are alone sufficient to generate the appearance of corruption.
However, it does not necessarily follow, because the existing laws are not as effective as we would like them to be, that we might as well get rid of them or that significantly relaxing limits on contributions will not exacerbate perceived problems.
Moreover, as Persily and Lammie observe, “proving actual corruption is very difficult.” A strict scrutiny standard would presumably compound the difficulty. It is worth considering that these laws are intended to prevent corruption, not merely to punish it after the fact. Almost by definition it will be difficult to draw a causal link between a preventative law and some phenomenon it is intended to prevent. The better it works, the less evidence of a problem there will be.
Lifting aggregate limits on contributions or subjecting restrictions on contributions to strict scrutiny would seem to pave the way for even greater influence for contributors than they currently enjoy. And they already enjoy quite a bit. Many in Congress complain that they must spend more time raising money than in lawmaking. While some may believe that this keeps them out of mischief, there is much mischief to be had in too assiduously courting donors.
Deference to Congress?
Arguing for deference to congressional judgments is challenging when the current Congress is seemingly unable to do much beyond launching yet another quixotic quest to repeal the Affordable Care Act (in its own legislative version of Groundhog Day). Of late, the actions of Congress do not seem characterized by the sort of sober statesmanship that might inspire confidence or deference.
Still, it may be worth considering the possibility that the current dysfunction in Congress may be a product of the excessive influence of contributors and to remember that the statute in question is the Bipartisan Campaign Reform Act. Although the RNC is urging the Court to set aside the aggregate limits on contributions and some House Democrats urge their retention, regulation of campaign finance has long enjoyed bipartisan support. The steady increase of the influence of money in campaigns may play a role in generating that support.
When lawmakers must devote more time to contributors than to voters, it raises the specter of a way to bypass the democratic process. Dennis Thompson, the former director of the Edmond J. Safra Center for Ethics at Harvard, has described this as institutional corruption. In his paper Two Concepts of Corruption, Thompson argues that if private interests “are promoted in ways that bypass or short-circuit the democratic process, they become agents of corruption.” He adds: “A one-time favor may produce serious injustice,” but a continuing relationship or practice corrupts the institution itself. The suggestion that we should view the BCRA with suspicion because it was crafted by sitting members of Congress seems to be an admission of hopeless institutional corruption. That level of distrust may be unwarranted.
Despite the assertions by some amici that legislation passed by sitting members of Congress is intended to benefit incumbents, the evidence suggests that limits on contributions, particularly very low ones like those the Court recently rejected in Randall, actually make elections more competitive. In a report for the Brennan Center, Ciara Torres-Spelliscy, Kahlil Williams and George Mason economist Dr. Thomas Stratman discuss their findings that low limits and public financing of elections contribute to more competitive elections. Rejecting congressional judgments about how to prevent the appearance of corruption might well make things worse, not better.
Many members of Congress are on record as critical, not to say despairing, of the ways in which the need to raise money for reelection undermines their ability to do their job. The question is – should they be responsive to voters or to contributors? It does not seem unreasonable to suggest that they give priority to voters. Keeping the aggregate limits in place may be one encouragement for them to do so.
Tamara Piety is the Phyllis Hurley Frey professor of law at the University of Tulsa College of Law.