Rick Hasen has made an important contribution to the debate about McCutcheon by astutely identifying an issue that had gone mostly unremarked—the Court’s choice to reduce the doctrinal heft of the “appearance of corruption” in step with its narrowed view of “actual corruption.”  With the equation of “actual” corruption with quid pro quo corruption, Rick believes, the concern with appearances had to take up the slack in addressing “the public’s concern that money can skew legislative outcomes.”  Twice in his piece, Rick refers to a “stand-in” function for appearances—a role in standing in for the decimated actual corruption standard that is no longer capable of dealing with the “broader concern about undue influence.”

In his dissent in McCutcheon, Justice Breyer certainly agrees with Rick’s criticism of the plurality’s reading of “actual corruption” and also suggests in his dissent that the appearance of corruption actually “makes matters  worse.”  McCutcheon v. Fed. Election Comm’n, No. 12-536, slip op. at  7 (2014) (Breyer, J., dissenting).   On this view, the appearances problem cuts to the heart of—or cuts the heart out of—public confidence in the electoral process. An electorate convinced that government is bought may give up on it, putting at risk the legitimacy of democratic institutions.

Justice Breyer acknowledges that the courts have found no evidence of quid pro quo corruption.  Id. at 10.  So without it, corruption defined as “undue influence” (and even more generally through the lens of “active liberty” that Breyer champions) must do the work of justifying regulation.  Justice Breyer has so far lost his argument for building this undue influence into the standard for actual corruption; Rick would revive it in the guise of the appearance of corruption.

This is a large task. It is complicated to expect “corruption” to carry one meaning in its actual form and a different one when judging its “appearance.”  If the Court, rightly or wrongly, concluded that corruption is X, then it has to be explained why in its appearance, as perceived by the public, it is Y.  One answer is that the types of corruption and the harms they cause are not the same: Breyer maintains that actual corruption destroys governmental integrity, but unsavory appearances destroy public confidence in government, irrespective of the actual costs of campaign finance activity.  But if Rick takes this position, then it would be important to have evidence that public confidence is preserved or enhanced by various kinds of regulation.

But, to his credit, Rick concedes that we have no evidence that campaign finance laws have this salutary effect.  The electorate may routinely assume that, in raising and spending political money, politicians are generally up to no good; their confidence probably rises and falls in response to a number of factors, such as the quality of government performance. Campaign finance laws are not among these factors.

In the absence of support in social science, Rick then turns to polling that shows wide suspicion about the corrupting role of money in politics.   There will always be these doubts of course: so, even if  the case for regulation should rest on public opinion polling,  there remains the question of whether the regulation in the name of appearances that Rick favors will bolster public faith in their elected officials. There is no reason to believe that it will.   And it is not clear, at any rate, that Rick’s position depends on evidence of this kind.  He does not so much argue for his theory of appearances as powerful in its own right: it is a “stand-in,” a means of rescuing a vision of “actual corruption” that the Court now rejects.

In the end, Rick seems to argue, this is all we have to go on, and the rest of his piece is an appeal to public sentiment.  He asserts that “no one in the public” buys what the Court is selling. He speaks of the views of the “general public.”  But this is far from a sure thing.  Some do buy what the Court is selling: there is a segment of the public that believes that the same politicians whose behavior they scorn should not be trusted to write rules in the public, and not their own, political interest.  The Court is certainly focused on that problem.  See id. at 3 (Roberts, C.J.) (“Those who govern should be the last people to help decide who should govern”).  It is hard to imagine that “no one in the public” shares the concern.

Rick adds to his fusillade against the plurality the charge that its shrunken conception of “appearances” breaks with precedent, with Buckley.  That case, he argues, endorsed a muscular theory of corruption’s appearance, and the McCutcheon Court just threw it over.

But the Buckley Court, working under Watergate pressures, did not articulate its position so strongly.  For example, it certainly ranked actual corruption ahead of its appearance as a ground for regulation: appearances were “almost of equal concern” as actual corruption, but not quite.  Buckley v. Valeo, 424 U.S. 1, 27 (1976).   Rick would inflate the significance of appearances, making it a powerful tool for legislators crafting campaign finance rules.  He would have the appearance  of corruption address not only “undue influence” but also  “fairness,” which smacks of the “equality rationale” that Rick favors and that, except for the now over-ruled Austin, the Court has consistently rejected. This is all a consequence of Rick’s constitutional salvage operation, a wish to re-invigorate the corruption rationale, and not everyone will be convinced that Buckley is full authority for what he is seeking to accomplish.

For progressives, there is a further risk in taking up the appeal to appearances.  The conception has been put to questionable uses in voting rights cases, like Crawford v. Marion County Election Board and Purcell v. Gonzalez, where the Court has relied without foundation on a supposed relationship between “ID” and other anti-fraud measures and public confidence in the electoral process.  The best scholarship casts doubt on that link in the same way that it has cast doubt on   the connection between campaign finance law and public confidence.  It is hard to have it both ways.  Appearances cannot be the built up for one reform purpose while its use is vigorously disputed in another, comparable one, when the claims made for them  in both instances are dubious.

Category: The Supreme Court

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