Claims about Corruption in the Case for Political Equality

February 5, 2016
posted by Bob Bauer

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.”

Mrs. Holland’s (and Mrs. McIntyre’s) Complaint

February 3, 2016
posted by Bob Bauer

When Margaret McIntyre's case came before the Supreme Court in 1995, she had passed away.  Her executor was determined to prevail over the state of Ohio, which had concluded that she was properly held liable, on complaint by school officials, for distributing anonymous handbills opposing a proposed school tax levy.  The Court heard the case and held for the late Mrs. McIntyre.  In a somewhat unfocused opinion, Justice Stevens found that Ohio's campaign finance disclosure requirements could not be applied to a case like hers: he noted in part that Mrs. McIntyre spent only a modest sum, out of her own pocket, and only for personal, independent speech. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).  The opinion in part relies on the long and distinguished history of anonymous pamphleteering in the United States.

So now comes along Mrs. Tammy Holland, in a remarkably similar case. In this instance, once again in conflict with a school board, Ms. Holland placed ads in a local paper calling for close examination of the qualifications of candidates standing for election or reelection to the school board.  Her interest stems from her strong opposition to Common Core, which she has expressed in part by withdrawing her son from the school system.  A school official, on his own behalf and that of the entire board, filed the complaint, alleging that her advertisements triggered campaign finance regulatory requirements she did not satisfy. The complaint alleged that she had to register as a political committee and that her ads should have carried disclaimers.

Under Colorado's campaign finance laws, the case was referred to an administrative law judge and in defending herself, Mrs. Holland wound up spending $3500 on lawyers. She was successful and sought to recover those fees.  Another school official, also a candidate for reelection, threatened her with another complaint if she did not give up her claim for the money.  She didn't and was sued again, and the regulatory wheels turned once more.

The Ninth Circuit yesterday issued a decision on judicial campaign finance, Wolfson v. Concannon, controlled by and very much in the spirit of Williams-Yulee. Arizona may prohibit a judicial candidate from directly soliciting campaign contributions, and also from endorsing nonjudicial candidates and participating in their campaigns.  The Court found the State to have a compelling interest sufficient to cover all the prohibitions: “an interest in preserving public confidence in the integrity of the state’s sitting judges.”  After that, it was smooth sledding, courtesy of Williams-Yulee, and the Court batted away the plaintiff’s claims that the bans were both under-and over-inclusive, and that Arizona could have employed less restrictive means of satisfying its interest.

A concurrence by Judge Berzon adds a note of genuine interest to an otherwise predictable, workmanlike analysis.  She suggests that the prohibition on endorsements of and campaigning for other candidates was more correctly considered in relation to another interest, equally compelling, in the independence of the judiciary.  Williams-Yulee may well control the outcome on the question of personal fundraising, but “the bans on endorsements and campaigning for nonjudicial candidates and causes… are quite different.”  Supporting those bans is an interest in

society’s concern with maintaining both the appearance and the reality of a structurally independent judiciary, engaged in a decision-making process informed by legal, not political or broad, nonlegal policy considerations.
Berzon writes that prohibiting alliances between judicial and other candidates protects against “politicization” of the judiciary.  Her concern is not the risk of bias in particular decisions but instead preserving a “structurally independent judiciary. “

The “Access” Issue

January 26, 2016
posted by Bob Bauer

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?

The Van Hollen decision handed down yesterday, on a disclosure issue, is remarkable on a number of levels, none of which involve the precise issue before the court.  The United States Court Appeals for the District of Columia did narrow the disclosure required in connection with so-called “electioneering communications,” but as a practical matter, the damage done to transparency is probably of middling consequence.  As matters now stand, anyone wanting to spend substantial money to influence elections and keep much of it from detailed public view has a number of options.  The option that the appeals court ratified yesterday is just one, and probably not all that high on the list.

More important is the way the panel moved, to a new plane, the political case that critics of campaign finance reform have been building against disclosure.  The panel gave the Supreme Court a failing grade on its disclosure jurisprudence. It faulted the Justice for failing to weigh seriously the trade-offs between speech and disclosure, and it believes that it has launched them on an “ineluctable collision course.”  It also thinks the Court has compared constitutional apples and oranges. Speech is a right, and transparency is an “extra-constitutional value”: the appeals court panel evidently believes that, in locating the right constitutional balance, the Supreme has overvalued the extra-constitutional value.

The panel also strikes hard at the notion favoring regulation broad enough to block obvious cases of “circumvention”—cheating. On the issue before the Court, the FEC had concluded that a donation to an organization funding “electioneering ads” was reportable only if made for the precise purpose of paying for these communications. The plaintiff Van Hollen objected to the ease with which this rule can be evaded.  A donation can be made with no specific statement about its use; or maybe the trick is done with a “wink and a nod.”  Unless the regulators can implement a more sweeping requirement without attention to stated, demonstrated purpose, the statutes’ purpose can be “frustrated.”  The court is unimpressed: maybe so, it replies, but the likelihood that a rule will be ineffective is not enough to weaken the force of the constitutional concerns provoked by more muscular alternatives.