Opening the political money chutes

By Richard L. Hasen
April 7, 2014

The headline about a new Supreme Court opinion rarely tells the whole story.  Rather, the detailed reasoning of the ruling often reveals whether a decision is a blockbuster or a dud.

When the court writes broadly, it can eventually remake entire industries, government practices or areas of the law. Lawyers and lower courts scrutinize an opinion’s every line and footnote, pouring over the legal reasoning and noting subtle changes from the court’s earlier decisions in the same area.

This is why it is fair to call last week’s Supreme Court ruling in the campaign finance case McCutcheon v. Federal Election Commission a blockbuster case. In McCutcheon, the court struck down limits on the total amount that an individual could give to federal candidates, parties and certain political committees in an election cycle.

The ruling is itself significant, and will channel a great deal of money into the hands of party leaders — opening up new ways for big donors to buy access to elected officials. But just as significant is the court’s reasoning — which could well lead to courts striking down what remain of campaign finance limits, including limits on contributions to individual members of Congress. We could be on our way to politicians accepting multimillion-dollar contributions from a single donor.

Elsewhere I have explained many of the subtle but significant shifts in reasoning and definitions that turn McCutcheon from a narrow holding on “aggregate limits” into a broadside against most campaign finance limits. This led Justice Stephen Breyer, in his dissent, to say that Chief Justice John Roberts’ majority opinion “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

Among the most important changes in Roberts’ opinion was the court’s defining “corruption” narrowly as akin to bribery — which makes it difficult to justify any challenged campaign finance limit.

While McCutcheon’s narrowing definition of corruption has gotten attention, a related change by the court majority in McCutcheon has been all but ignored: the virtual disappearance of the “appearance of corruption” as a basis for limiting campaign contributions. Its troubling disappearance demonstrates the extent to which the Supreme Court majority is willing to ignore political reality for the sake of its extreme free speech views.

The Supreme Court’s 1976 opinion in Buckley v. Valeo for the first time set out the basic ground rules for determining when campaign finance limits are acceptable under the First Amendment’s right of free speech and association. It held that contribution limits (which it said only marginally impinged on free speech rights) could be justified by the government’s interests in preventing either “corruption” or the “appearance of corruption.” On the latter, the court explained, “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.”

Writing in Buckley, the court drew an analogy to its earlier decision rejecting a First Amendment challenge to a law barring federal employees from engaging in partisan activities: “Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.’”

In the years since Buckley, the meaning of corruption has wavered between a narrow concern about bribery and quids pro quo on the one hand and broader concerns about “undue influence” on the other. Before Roberts and Justice Samuel Alito joined the court, a number of opinions on contribution limits defined the term “corruption” broadly, and the term “appearance of corruption” even more broadly. As Justice David Souter wrote in a 2000 case, Shrink Missouri: “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”

Appearance of corruption, then, worked as a stand-in for the absence of direct proof of money buying votes. The “appearance of corruption” recognized the public’s broader concern that money can skew legislative outcomes.

More recently, as the court has narrowed the meaning of “corruption,” the appearance of corruption interest became even more critical. With the term “corruption” limited to something like actual bribery, “appearance” acted as a stand-in for a broader concern about undue influence and fairness in a system of pay-to-play politics.

In McCutcheon, the appearance of corruption interest all but disappears — collapsing into a concern about actual bribery. The court writes that “the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, [and therefore] the Government may not seek to limit the appearance of mere influence or access.” Never mind that Buckley spoke not of an “appearance of quid pro quo corruption” but instead of the broader “appearance of improper influence.”

The court doesn’t actually look to any evidence as to whether campaign contribution limits work to promote public confidence in our system of representative government. It just assumes that the far bigger contribution limits cannot influence public perception of congressional corruption.

In the past, there has been no good evidence that campaign finance laws have affected public perceptions of corruption. The public is very concerned about corrupt politicians, but that has been true regardless of our campaign finance laws.

The Supreme Court’s opinions are themselves actually promoting the appearance of corruption. On the day McCutcheon was decided, I spoke at a luncheon honoring the California Supreme Court and criticized the U.S. Supreme Court for failing to pay attention to facts and evidence in election cases. I quoted from Justice Anthony Kennedy’s majority opinion in Citizens United, the earlier Supreme Court case that allowed corporations to make significant contributions to elections. Kennedy wrote: “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Further, “[t]he appearance of influence or access…will not cause the electorate to lose faith in our democracy.”

Kennedy’s remarks were huge laugh lines in my speech. No one in the public is buying what the court majority is selling anymore. People have become cynical about the role of money in politics.

We will now learn what happens to public confidence in an era of big money going into politicians’ pockets. The court may not call it “appearance of corruption.” But to the general public, that’s just how it looks.


PHOTO (TOP): The exterior of the Supreme Court is seen in Washington March 5, 2014. REUTERS/Gary Cameron

PHOTO (INSERT): Chief Justice of the United States John Roberts arrives at a George Washington University law students moot court competition in Washington, February 9, 2006. REUTERS/Jim Young


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