Out of the Woods

Congress for Sale?

Until a few days ago, campaign finance law limited how much money altogether any campaign donor could contribute to political candidates in any given year. Yesterday the majority of the US Supreme Court declared that such a limitation "intrude[s] without justification on a citizen's ability to exercise the most fundamental First Amendment activities," namely expressing one's opinion about a political candidate.

The Court's opinion recognized that there is “only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption. Moreover the only type of corruption Congress may target is quid pro quo corruption. Spen- ding large sums of money in connection with elections, but not in the effort to control the exercise of an officeholder's official duties, does not give rise to quid pro quo corruption.”

This passage is a direct quotation from the Supreme Court decision issued on April 2, 2014. Let's look at it.

1. Campaign contributions can either be exercises of free speech—the donors state their political preferences (and put their money where their mouths are)-- or be Quid pro quo corruption when the campaign funds are given in exchange for the politician's vote in a specific case.

2. Quid pro quo corruption is further identified as wielding“ control over the exercise of the officeholder's functions.” One very important function of officeholders, elected representatives in federal, state, or local legislative bodies is to pass legislation. If a representative changes his or her votes to meet the desires of a large contributor to electoral campaigns, we have a case of quid pro quo corruption.

That's fair enough.

But the Court adds that

3. A campaign donor who gives generously to a candidate's campaign but does not ask for specific votes to meet the donor's political agendas is not engaging in corruption. The campaign donations should be counted as a case of speech protected by the Fist Amendment.

But how do we distinguish between a bribe I give to an elected representative and a campaign contribution? That is surely the key question here. We try to limit monetary contributions to political campaigns because we think that the large donors buy influence over the votes a representative will cast. Citizens widely believe that large campaign donations are, in fact, not expressions of political opinion but are plain and simple bribes.

The Court will have none of that. Unless the donor is buying the representative's vote outright, there is nothing to worry about.

But how do we know that?

Most obviously, rarely, if ever, are there explicit deals made, committed to writing-- unmistakable records of unambiguous corruption. It is, in most cases, very difficult to tell whether the donor is buying votes or just uttering political opinions. The court seems to believe that unless there is an unambiguous record of the representative promising to vote certain measures up and down in accord with the donor's demands, campaign donations are just expressions of political opinions.

But consider this. You are an elected representative. Campaigns are every year more expensive. You spend an inordinate amount of time fund raising. If it were not for a few individuals who contribute as lavishly to your campaigns as the law allows, you would not be able to get reelected. So if your big donor calls to have lunch, you will find the time. Just a friendly lunch; you talk family, you gossip a bit, and, yes, your donor lays out the case for some legislation he cares a lot about. Will you have time to listen to a lobbyist in the donor's employ who makes a very good case for this legislation? Yes, of course.

You vote as your donor had hoped you would. He may give you an investment tip or two. [Recent news stories had it that more than half the members of Congress are millionaires. How did they earn that much money?]

What happened to the other side in this issue? Did you have a chance to listen to people who oppose your donor's position? Too bad, that you were too busy but of course the demands on a politicians time are really crazy.

In the view of the majority of Supreme Court justices this is not corruption. It is constitutionally protected political speech.

Is that naïve . . . or corrupt?