In the fight over contribution limits, litigants argue over how much money, given by whom and in which ways, can push normal politics into corruption or the certainty of its appearance. McCutcheon tests the proposition that corruption can be a byproduct of the total volume of giving, not just how much a donor hands over to a specific candidate or political committee. McCutcheon v. Fed. Election Comm’n, No. 12-536 (S. Ct. docketed Nov. 1, 2012). Other cases bring the courts into the dispute over the relationship between corrupt potential and the size of the contribution, the tipping point at which the sum given exceeds what it is safe to allow. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Threading its way through these arguments is the question of whether and how the identity of donors, such as political parties, should be weighed in the bargain. See e.g. Illinois Liberty PAC v. Madigan, Case:1:12-cv-05811 (N.D. Ill.).

These arguments are waged energetically but without much precision or consistency. Judging corrupt potential in part by the identity of the donor has proven challenging. Parties get the benefit of the doubt some of the time, and then, on other occasions, very little of it. See. e.g. McConnell v. Federal Election Commission, 540 U.S. 90 (2003). The arguments about how they should be treated are suspended between the view of them as agents of corruption—mere vessels for the corruption of candidates who control them—or as indispensable mediating institutions fully deserving of special treatment. The size of a “safe” contribution has also eluded sharp definition. The Court has given the legislature room to set the limits, but has sketched in vague terms the “danger signs” that they have been set too low. Randall v. Sorrell, 548 U.S. 230 (2006).

The campaign finance law that governs contributions is a unstable compound of these arguments and considerations and is likely to remain so. Yet it has consumed the better part of the attention paid to money-in-politics corruption. This has meant that reform energy is mostly invested in the electoral sector, where the money is solicited, given, and then spent on electioneering, and not as much in the field of government, where the inquiry turns to how we expect the legislator who has received the money to behave. In this field—and setting aside egregious misconduct punishable under the criminal laws—the issue is one of officeholder “ethics” and the regulators are the officeholders themselves, acting on their constitutional authority to establish disciplinary rules. Because it is widely supposed that Members cannot be trusted to exercise this power wisely, “ethics”—except on the occasion of scandal—receives but a fraction of the policy debate or scholarly writing devoted to campaign finance.

This is unfortunate. It has been too easy to miss the extent of the evolution in Congress’s definition and policing of ethical standards, or to understate its significance. Over many years, but still strikingly, the focus of legislative ethics has come to settle on personal misconduct or individual integrity, moving away from political or institutional offenses. Processes for adjudicating ethical transgressions have become steadily more institutionalized and decreasingly determined by majority party control. Charles Stewart III, Ain’t Misbehaving: Or, Reflections on Two Centuries of Congressional Corruption at 28-29 (1994) (unpublished manuscript) (available at (“Yet, although it is clear that both chambers continue to be reluctant moral judges at best, it is possible to build a case that Congress has become more vigorous over the years in acting where constituents have been even more reluctant to act, and have done so in a more judicious manner than in the past.”)

Of course, these changes are little recognized because they clash with venerable certainties about how “things work.” Members are supposed to follow an iron law of protecting their own, as a requirement of protecting themselves, unless political pressures to the contrary become irresistible. There is certainly truth to this perception, but it is not the whole truth. and the disinclination to keep in view ethical standards, as a critical complement to campaign finance controls, has ill-served the avowed goals of political reform. A closely related problem is the comparatively slow progress in the development of lobbying law.

This is not an argument against campaign finance regulation but a suggestion that it would benefit from more modest expectations in design and enforcement and that it should not bear the full weight, as it does today, of the policy debate over how best to check government corruption. If it is correct to see the regulation of contributions as “conflict of interest” regulation, see, e.g. Daniel Hays Lowenstein, On Campaign Finance Reform, the Root of All Evil is Deeply Rooted, 18 Hofstra L. Rev. 301, 323 (1989), then how officeholders manage their offices once the money is in the door—regardless the size, source or total volume of the contributions—becomes the urgent question.

Enforceable ethics standards and more creatively designed lobbying laws speak very directly to this question.

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