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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I think the SC just said that we all know that the system is corrupt, so why not go for it.

Posted by euro-yank | Report as abusive

Campaign finance reform and term limits for congress must be in a constitutional amendment. To get that, we need a national public referendum vote on the next presidential ballot as obviously the politicians will not do it on their own. Once it is an amendment the SCOTUS is rendered basically ineffectual in changing it as long as it is clear enough that they can’t “interpret” it correctly.
Once this is accomplished, all those other issues and problems of the country will start to be addressed. It would only takes six years to get rid of all of them and replace them with patriotic people.

Posted by tmc | Report as abusive

it certainly cannot escape SC awareness that the public’s last non-legislative line of defense, the media, will be immediately made complicit via a huge profit motive. This decision is more akin to making kings than supporting democracy

Posted by auger | Report as abusive

This decision doesn’t really change much for me. Representative “democracy” was a scam before and is now just a slightly more transparent scam. I’ll continue to vote only if there are amusing candidates available though I’m not sure how I can top my vote for the Prohibition party.

Posted by roboticowl | Report as abusive

Surely everyone can see the disaster that’s just happened to the American Government, whether they’re Republican or Democrat. The doors have just been legally flung wide for the appearance of corruption, actual corruption, the appearance of influence or access, actual influence or access…Next stop Congress, governors, mayors, dog catchers.

This is a bad SC decision.

Posted by JL4 | Report as abusive

McCutcheon was, indeed, an absurdly bad decision. But it’s done. So we know our government is corrupt and we are stuck with a Supreme Court that sanctions our government’s corruption, at least until we can get a majority of liberal Justices on the Court. The next move is up to the American people. Now we’re going to see just how much the American people love liberty, freedom, and democracy. It’s up to us now to demand that our elected Representatives end the corruption. Any politician running for office should be made to state what he or she plans to do to end government corruption, and if they don’t, vote them out of office. If the American people don’t do this and choose to keep the corrupt politician in office, then we deserve our fate.

We need to march on Washington and every single American has a responsibility to participate. This is the defining issue of our time. We either must force a Constitutional Convention where we amend our Constitution to place limits on campaign contributions and to decide how we should finance our elections, or we have to keep a Democrat in the White House at least until we have a majority of liberal Justices on the Supreme Court. Then we have to force our government to pass serious campaign finance reform.

Either route will be extremely difficult, but given the intransigence of the Republican Party, I think a Constitutional Convention is impossible. It requires 3/5ths of our states to ratify it.

But we should work on both routes. Either way, we need to march on Washington like Washington has never seen in this nation’s history. If it’s too much trouble for people to attend, then we deserve the loss of our government and our country.

Posted by carnivalchaos | Report as abusive

@carnivalchaos, I don’t believe a march on Washington will change anything. Don’t get me wrong – - I wish it would. At best it will be amusing to Congress because they only give lip service to the American people. I mean, just how many politicians can write on their glossy little flyers we all get in our mailboxes that they’re for “Family Values” and be taken seriously? How many can stand up and say in front of the TV cameras, “I’m going to see to it that the American people prosper” and call it an economic recovery plan? And finally, how many and how long are average Americans going to buy into the drivel?

My point is we can interrogate politicians and demand to know their intentions to repair our government, but to what end? What will they tell us?…”I’m going to see to it that the American people prosper, because I believe in Family Values!”

What will likely happen is this country will finally polarize into two distinct and profound socio-economic classes: those who have and those who don’t. It’s already happening.

All that said, I agree with you. I just wish it were as easy as one massive march on Washington.

Posted by JL4 | Report as abusive

Concern for “corruption” and “the appearance of corruption” are legitimate. Worse will be the issue that inevitably goes hand in hand, which is “legal bias” and the “appearance of legal bias” as affects recusal in American courts.

Already judges have been freed of meaningful accountability under their oath(s) of office to do pretty much do as they please regarding “interpretation” of relatively clear wording of regulations and legislative wording of statutes. Who’s “out there” protecting “we, the people” from increasingly self-serving political and legal interests?

Posted by OneOfTheSheep | Report as abusive

JL4: “I just wish it were as easy as one massive march on Washington.”

Did you really think I was suggesting that all we had to do was have us a march on Washington and the corruption would evaporate? There’s only two ways to really have an impact on the corruption in Washington, have a Constitutional Convention at which we amend the Constitution in a way that redefines how we pay for our elections (either through public financing or placing strict limits on the amounts we’re allowed to donate) or we get a sane majority on the Supreme Court and get Congress to pass comprehensive campaign finance reform. Either route will be very difficult.

A march would do a few things. For one, it will show us and the world if the American people give a dam about practicing democracy any more. Sometimes I wonder. If we don’t, then it doesn’t matter. End of story. The minority who do still care can survive and grumble. If we demonstrate that we DO still care about this Republic and its democratic principles, a successful march will unite the American people; put this issue on the front burner, thus igniting an education drive on what is really happening to our government; and it will put our politicians and their benefactors on notice. A successful march would make it a lot easier for us to accomplish what I stated in the first paragraph of my other post, demanding accountability on this issue or voting the unaccountable out of office. It would also encourage new politicians to run on the issue of ending corruption. First we have to see if we’re serious about this and then we need to show our elected officials that we’re serious. We HAVE to do SOMETHING.

Posted by carnivalchaos | Report as abusive

Well you know I would be there carnivalchaos. Maybe it would wake up more people to the need. But then again, I doubt it would get much press coverage, and what it did get would be negative. Freedom of the press belongs to those that own one.

Posted by tmc | Report as abusive

I would love to be around when the majority of the electorate wakes up and recognizes how they are being abused. This occurrence with the SC and the “Obamacare” fiasco is just the beginning. The common good for the citizens of this country might be a thing of the past.

Posted by rikfre | Report as abusive

@carnivalchaos, no. You misunderstood. I didn’t mean that your idea was simplistic. I meant exactly what I wrote – that *I* just wish it were that easy.

A Constitutional Amendment, as you pointed out, is next to impossible now. It would take an act of Congress – and there’s the rub, the intended pun, and the irony, all rolled into one.

My opinion is that for the average American, things will have to get a lot worse before they get better. I think the Republican voters are going to have to realize they’re being deceived by their own party as well, otherwise it will be just more of the “us against them” mentality that we see now.

But I believe government reform will come to pass, and not a moment too soon. I’m in my 50s. Hope I live to see it.

Posted by JL4 | Report as abusive

[…] have adopted strict scrutiny to apply to contribution limits.  Nonetheless, as I showed at Slate, Reuters, and the Daily Journal right after the opinion came out, McCutcheon was pretty darn bad. I rate it […]