Theories of Corruption and the Separation of Powers

May 20, 2013
posted by Bob Bauer

In a policy paper just published by the Cato Institute, John Samples takes up the constitutional amendments proposed in response to Citizens United and attempts to expose their dangers. Samples, a distinguished scholar of campaign finance, has much to offer here, regardless of where a reader stands on the feasibility of these proposals. It may be true, as Samples writes, that the constitutional amendments he criticizes “provide answers to constitutional questions, not a means for courts to reconsider those questions.” John Samples, Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United (April 2013) at 9. They do provide a means for others to reconsider those questions. And, in fact, Samples’ analysis leads him to return to first principles and to ask the question: what control should we entrust to the government in matters of campaign finance, and on what theory?

In the prevailing theories of corruption Samples sees trouble; and most of all, he is concerned that elected officials in the grip of self-interest will misuse their power over spending to weaken the constitutional plan for “individual rights and limited government.” Id at 10. Yet within these competing theories there is found the seed of a concern with corruption as an assault on the separation of powers that might draw more of a sympathetic hearing from John Samples and others who are drawn to the libertarian vision.

This is the basic argument from a separation of powers perspective for measures to address campaign finance:

Each of the branches must hold fast to its separate and independent role in checking the others, and the Constitution in various places guards against the risk that one branch will weaken the independent standing, and hence capacity for checking, of another. For example, the Ineligibility Clause prohibits the Executive from employing Members of Congress because the intent or result may be the promotion of conflicting loyalties and an emasculated legislature. Art. I, Sec, 6, Cl. 2. It is not hard to see that money in private hands available for political expenditures can have similar effects. If the same interests funding Presidential elections (and lobbying the Executive) can court the Congress with offers of campaign cash, the legislature and the executive are at risk of answering to the same source and losing the constitutionally desired separation from each other.

This argument also seems to account well for the fundamental intuitions about judicial campaigns and the role of private financing. Judges reviewing legislative enactments face conflicts in the performance of their roles if dependent for their election on the same contributions that legislators accept for their own campaigns. In A.T. Massey Coal Company, Inc. v. Caperton, 556 U.S. 868 (2009), the Court considered the issue from inside the judiciary, weighing the impact of the judicial campaign spending on the due process rights of litigants. One could imagine a fact pattern in which the political spending is directed at all three branches, coordinated toward the same result: the Executive, Judiciary and Legislature coaxed into positions consistent with the private interests.

John Samples perceives themes of this form of corruption in the “anti-corruption principle” argued by Zephry Teachout, and he could find a strong trace of it as well in Larry Lessig’s “dependence corruption” theory. See The Anti-Corruption Principle, 94 Cornell Law Rev. 341, 359 (2009) (noting that separation of powers concern and her focus on “corruption” are related but not the same); Lawrence Lessig, Republic, Lost (2011). But he is troubled that whatever the source or form of corruption, the greater threat lies in the power conferred on elected officials to solve the problem. Politicians will inevitably impose their conception of the common good by suppressing spending from certain sources or not others, or they will bypass considerations of the good and do what their own political interests require. In The Fallacy of Campaign Finance Reform (2006), Samples’ history of officeholder motivation behind political reforms leaves little doubt that this is a fair concern.

But it cannot be dispositive. Courts review enactments for evidence of partisan or official self-dealing, and some laws have failed that test. Voters respond as well. Some of the time, these protections are effective, but not always. But the problem to which legislators respond in addressing money-in-politics issues are also weighty, particularly when considered within the framework of strains on the constitutional plan for truly “separated powers.” Urging inaction out of fear of misguided action seems difficult to defend. And while Samples is critical of the blunderbuss approach of a constitutional amendment, he does not fully acknowledge that the courts, by closing off avenues of legislative action, have forced a part of the debate in this direction.

The fear of officeholder self-interest is largely owing to the view that campaign finance legislation is suppressive in character, and that the steps law-makers take are coercive. Self-dealing is odious enough, but it becomes intolerable when the officeholders or parties’ good fortune depends on silencing others or limiting their capacity to organize for political purposes. This is a further reason why in the post-Citizens United era, the future of reform may productively involve expanding opportunities for citizen engagement so that the sources of support to which elected officials respond are many and varied and more democratic, consisting of “small” as well as “big” money.

From this point of view, and without slighting the problems presented by Citizens United, the Court has most handicapped the legislatures in crafting remedies with its decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011). There, the Court majority unaccountably wrested authority from law-makers in constructing viable public financing schemes. For example, it held that supplemental public funding for participating candidates facing independent expenditures compromised the free speech rights, even if it did not limit the spending, of the independent spender. Stephen Ansolabehere has written that this Arizona law roughed up by the Court could be fairly said, on the social science, to have served “the ultimate goal of the First Amendment of creating more speech and more robust discourse by providing public funds and leveling the playing field from the bottom up, rather than the top down.” Arizona Free Enterprise v. Bennett 2011 S. Ct. Rev. 39, 57-58 (2011).

One question then is whether, if we take institutional corruption on the separation of powers model seriously, but still we fear that elected officials given power over campaign finance will use it to muzzle disfavored points of view, why not look in the direction of reforms that work toward “leveling the playing field from the bottom up, rather than the top down”? It does not seem that this is necessarily a direction at odds with the libertarian project.

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