To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. 

Buckley v. Valeo, 424 U.S 1, 27.  

This was the magnitude of the conclusion that the Supreme Court drew about the prevalence or appearance of corruption when it upheld the contribution limitations of the Federal Election Campaign Act. The corruption problem was “not… illusory” but its scope could ‘never’ be pinned down.  The Court then cited to the decision of the court below that had offered a few example of pernicious behavior with campaign funds in the 1972 presidential election. That was enough.

In the years following, enough has not proven to be as good as a feast.  And in search of the feast, anyone with a point to make about the campaign finance laws has been pursuing conclusive data to support it.  Corruption, or the absence of corruption, or the different definitions and measures of corruption, have all occasioned argument about the evidence, as has the related but different project of proving the “appearance” of corruption.  Argument about the evidence has yet to be settled and there's every reason to believe that they never will be.

The related but still distinguishable argument about political inequality has meant the same search for clinching proof that policy follows money and makes for a “rigged” system.  This week, the Center for Competitive Politics took after a widely reported paper about the correlation between the aspirations of the wealthy and the manufacture of public policy.  Noting that Rick Hasen and Larry Lessig had made use of the paper in arguing for a political equality theory of regulation, the CCP cited to critics of the scholarship and its conclusions.  In this critical view, which CCP evidently favors, there is substantial agreement across income groups about policy.  So the study that purportedly shows that we have a democracy of the rich cannot survive close scrutiny. CCP suggests that this should bring sharply into question the “lofty solutions” of reformers.

Louisiana is arguing with the help of the indefatigable Jim Bopp that McCain-Feingold cannot limit “federal election activities”, such as GOTV and voter registration, that state and local parties conduct independently, without coordinating with their candidates. Democracy 21, the Campaign Legal Center and Public Citizen reply in a brief filed as amici that this claim is clearly foreclosed by existing precedent: the soft money limits on state parties under McCain-Feingold are contribution limits, not spending limits, and there is no protection gained from claiming to conduct independently the activities paid with these contributions.

The litigating team representing these leading reform organizations is top-notch, and so it is not a surprise in reading their brief that they do a fine job with the materials at hand. But one also sees that there is a problem—not with the advocacy, but with the state of the law.

One prominent scholar recently suggested on the election law listserv that the poor returns on Jeb Bush’s campaign spending tell us something about how unreliably money “talks” in elections.  Another prominent scholar replied, saying that this remark "completely missed the point” about the power of money in politics.

As the presidential election year moves along, it is natural for the debate to crank up over whether assumptions about money and politics, particularly in the era of Super PACs, have proven to be facile.  Among the various, conflicting views are those that surfaced in this list serv exchange.  The position dismissed as completely simplistic holds that money has been shown to be a weak factor in competitive elections.  The other, opposing view counters that the role of money in politics, while highly significant, has to be more discriminately analyzed, in more nuanced fashion.

The nuanced theory avoids some of the problems of overstatement but falls potentially into the risk of being both highly nuanced in its content and yet rhetorically bold in its presentation.  The argument takes various forms, but one is found in an article Rick Hasen wrote not too long ago in The Washington Post, entitled "Money Can't Buy Jeb Bush the White House, but It Still Skews Politics."  There, Hasen argues, that money is “key,” but when it is key, and how, all depends on the circumstances.  In high salience presidential campaigns its effects might be less powerful than in elections down the ballot, where interest is less intense and voters more weakly informed. Its effect, where it has one, is a “skew”, and it may be "subtler” in impact than reformers claim, but it is “equally pernicious” in advancing the interests of donor class.

There is a shift here to more careful claims about what money buys and when: that it counts for more in some races than in others; that it is not all that effective if the candidate is a “bad product”; that money’s effects are more of a “skew” than a power play; and that those effects are not always all that obvious unless you look closely.  But there is little change in the statement of campaign money’s impact: it is large, pernicious and pervasive, and it accounts for “the rise of a plutocratic class capturing private benefits for personal gain.”

Now this position may sound like the long-standing corruption argument now having to straddle the line between its empirical and moral foundations—having to concede after all this time the complexity of money’s effects while insisting that the corruption remains as bad as ever.  But Rick is not an anti-corruption theorist of the old school.  He is arguing for campaign finance regulation as an antidote to extreme political inequality, a position forcefully and skillfully laid out in his new book, Plutocrats United.

This argument based on considerations of political equality can gain force from a “skew” resulting from superior resources.  But it is not dependent on it. And it also does not require claims about the extent, significance or political bias of the “skew.”

One line of argument in the McDonnell case briefing accepts that supporters might expect some preferential treatment—“procedural access,” like a meeting—but not official influence to carry the supporter’s case on the merits.  This is one way that routine politics would be distinguished from corrupt politics.

Professor Jeffrey Bellin, thoughtfully but also passionately, says that this won’t do, and that routine politics, including rewarding supporters with access, ought to be criminalized.  Getting any preferential consideration for money is quid pro quo corruption.  If the Court will establish and hold this line, Professor Bellin argues, it will reduce the significance of money in politics and “the big money will dry up.”

One question is how the Court would fashion a workable rule along these lines.  Without a “per se rule” barring an elected official from ever scheduling meetings with a contributor, or making similar accommodations, the approach Bellin favors would require scrutinizing the motives, often mixed, of politicians.  A politician might schedule a meeting requested by a contributor because she has given, but also because she has something to say that the elected official would like to hear.  Or the politician might even have something to say to the donor—something she, the politician, would like to have understood by the industry or interests that a donor might represent.  The contributor might also have provided other forms of support that the officeholders might wish to recognize—like help on the campaign trail.  It is difficult to say where the raw politics end and the rotten, corrupt kind begin, and no easier to believe that prosecutors and courts are in the best position to judge the question.

But there are additional problems with this emphasis on money. Supporters who deliver votes, endorsements or favorable media commentary are also banking plenty of goodwill with an elected official, and they will also expect that their calls will be returned and that their requests for meetings will be answered affirmatively.  They are being recognized for their political speech (and other actions that are expressive in character). Why would giving money, within the legal limits of the law, be treated as somehow so different that we would deny these speakers comparable treatment, then subject them to the criminal laws if they get it? In what way is money different?

How far the politician can go in accomplishing political aims, or in meeting political obligations, without being corrupt is implicated in a case like McDonnell, now to be decided by the Supreme Court.  On questions like this, there is a tendency to avoid coming to terms with the element of self-interest as a feature of a political career.

The politician who holds public office can be expected to make the most of official position to advance the prospect of reelection or advancement, and this will mean special handling of political significant matters or the interests of political supporters. The Supreme Court in Citizens United and McCutcheon has concluded that the “ingratiation and access” associated with political support are not a problem of corruption.

But the case law and commentary sometimes dress up the politics in claims about the importance of freeing politicians to have contact with voters and constituents-- to learn from them, to stay close to the people etc.  It is suggested that what is at stake is democracy.  The complexities of the political art, which include what it takes to be a successful politician, are delicately kept out out of the discussion.

The government’s brief in McDonnell acknowledges that there is some room for politicians to reward friends and refers to the common case of special access afforded political allies and supporters.  The line it draws is between this “procedural” access – – the opportunity to get the politician’s ear – – and the further step of exercising influence on the supporter’s behalf: “influence [of] the disposition of governmental matters by others.”  Brief for the United States in Opposition, Robert F. McDonnell v. United States of America, Docket No. 5-474 (U.S. 2015), at 25 n.9.

This seems like a sensible solution.  Offering an audience for a request is one thing; it is not the same as taking action, or exercising influence so that others act, to grant the request. But the application of the distinction is challenging.