In a Washington Post piece, Rick Hasen argues that if the aggregate individual contribution limits fall in the McCutcheon case, the results could be both good and bad. To the good: parties could raise and spend more freely, and therefore would be strengthened when more vigorous parties are needed to temper polarization and alleviate governing gridlock. To the bad: “more” corruption would result from expanded large donor influence over the political process. Rick wishes that the two goals, clean but also functional politics, could be achieved in tandem, but with the Supreme Court’s limitation on Congress’s authority to prevent corruption, he is convinced that we might have to accept more corruption in return for possibly better government.
This is a surprising reading of the turns in Court’s jurisprudence affecting the influence parties might have. The older jurisprudence whose passing Rick mourns—the jurisprudence of the McConnell case—construed “corruption” so broadly and tied it so tightly to parties that it left little room for the party revival that Rick concedes may be salutary. And in any event, in forecasting “more corruption” in the event that McCutcheon is decided against the limits, Rick steps onto certain slippery ground he has warned others against entering.
Under the McConnell view of the world, when the conception of corruption was its most expansive, party campaign finance could be regulated extensively to address corruption, even of the most elusive kind. The Court conceded that the brand of corruption it was attacking was so evanescent that it was “neither easily detected nor practical to criminalize”; it was, the Court stated, a “subtle” form of “undue influence.” McConnell v. FEC, 540 U.S. 93, 153 (2003). This subtle variety of corruption was nonetheless dangerous enough to mark the parties as agents for wealthy donors looking to inculcate gratitude, a “sense of obligation,” in the officeholder. Id. at 144-45. And all this before any accounting of the appearance of corruption.
This theory of corruption was a theory of party corruption. Once adopted, the law stripping the parties of soft money, McCain-Feingold, could pass the constitutional test. The conditions were then set for the parties to raise money only within tightly compressed space. Reform advocates seized on the McConnell doctrine to argue for the extension soft money restrictions to other party activities, such as redistricting. Since then, as Rick points out, outside group activity has boomed, and their competitive advantage relative to the parties has grown dramatically.
So if Rick believes that the parties might function better with more leeway in raising and spending money, then nostalgia for the McConnell version of corruption is puzzling. This broader version of corruption subsisted on a rich diet of any-party animus and the consequences—weaker parties—have come clearly into view in recent years. This is a price some may be willing to pay for additional protections supposed to be necessary in defending against party-base corruption. One cannot, however, have it both ways: laud the very doctrine that has sustained legislation shackling the parties, but promote at the same time the virtues of more unshackled parties. Rick seems to suggest otherwise—that we can have stronger parties while holding fast to McConnell’s vision of their corrupt tendencies. But it is not obvious how, and he does not say.
Which brings up one more question about Rick’s presentation. He indicates that if McCutcheon results in the invalidation of the two-year aggregate limit, we will have “more corruption.” This prediction is based on the well-worn hypothetical of the donor giving the maximum contribution to candidates and parties around the country, totaling the millions of dollars. Some buy this, some don’t. But Rick argues that if he is right, we will have “more corruption.” What does he mean by “more”? If the corruption Rick has in mind is quid pro quo corruption—cash paid for legislative favors—years of research does not support the view that there is already a lot of it.
Rick is likely merging the term “corruption” into his different theory of campaign finance regulation as an answer to political inequality. In this view, if a contribution limit falls in McCutcheon, the wealthy will add to their opportunities to speak more audibly and powerfully than others. This seems to be what Rick has in mind when, in stating the goals of campaign finance, he refers to both preventing corruption and enforcing an “old understanding about the compelling need to prevent undue political influence by the wealthy.”
Many readers may agree that the definition of corruption includes the louder voice the wealthy can buy, but others will take the corruption he predicts to refer to the actual quid pro quo corruption that has long dominated campaign finance debate and jurisprudence. Corruption as a shorthand for the political equality argument as well confuses the issue—a point Rick has made before in questioning the “dependence corruption” theory that Larry Lessig has been advocating.