The McCutcheon decision intensified the disagreement about when the use of money in politics is corrupt, and when it is just politics.  Chief Justice Roberts endorsed in general terms one bond that money creates—official “responsiveness” to constituents, whom he apparently took to include donors.  The Chief Justice ruled out legislative attacks on the “ingratiation” and “access” that contributions might buy.  McCutcheon v. FEC, 134 S.Ct. 1434, 1441, 1462 (2014).  Critics were appalled.  Yet, for all the excitement that followed, neither the few lines the Roberts opinion almost summarily devoted to the question nor much of the response to him helped clarify the critical issue: what is tolerable politics and what crosses the line?

Who is the “Constituent”?

One useful contribution came via a posting on Balkinization, from Professor Joey Fishkin. Fishkin picked up on Roberts’ use of the word “constituent” and  recognized that a politician’s constituencies might be varied. They include those who vote, those who give, and, within the ranks of givers, those who just want to have their say and those who expect something in return.  The politician might respond to all of them in different circumstances, but when she chooses to serve the wrong constituent, politics becomes corrupt.

An example Fishkin offers is the industry whose interests conflict with the formally represented “constituents,” but whose contributions it has made or will offer move the politician in its corner. Fishkin looks to Justice Breyer’s dissent in McCutcheon in defining this choice as corrupt because it ruptures the “‘chain of communication’ between the people and their representatives” that allows for effective self-governance.  McCutcheon at 1467 (Breyer, J. dissenting). Multiple constituencies are fine, Fishkin allows, but not all should count for the same in the officeholder’s priorities.  Roberts get this wrong when he conflates the donor, just one kind of constituent, with all the others.

This analysis has the virtue of bringing clarity to a topic clouded by strong feeling and confused use of terms.  It does not fully address another factor—the complexity of the political choices that elected officials make—though Fishkin allows for situations in which “no politically perfect answer” may be available.

There may be cases, for example, where the choice is not as stark as in the one Fishkin offers between the donors associated with a specific industry and the politician’s formal constituency, “the humans living in [her] district.”  There is often more grey than black-and-white. The industry may have a presence in the district and the public policy question could be viewed a number of ways. In the presence of these other factors in the industry’s favor, its significance as a source of financial support is an additional consideration that a working politician rarely ignores.

Political Tradecraft

This is what politicians do: apply political judgment in deciding on a course of action, balancing political self-interest against representational responsibility, looking for a “path” through the demands of conflicting constituencies, weighing short-term costs against longer-term gains and vice versa. For a public suspicious of politics-as-usual, it may not be an edifying calculation, and the politician will rarely admit what it is that she is doing.  And the explanation she offers will not go uncontested. The opposition will craft its own, unflattering explanation and the press will dig in.

The good politician handles this task well, the bad—meaning, incompetent—politician does not. One is an effective politician, and the other isn’t.  In performing poorly, the bad politician may appear corrupt when she is, in fact, a bad politician. She seems to have weighed and balanced the various factors foolishly, as in putting disproportionate emphasis on what she owes a contributor.

Election law and much of its scholarship struggle to take into account the essential characteristics of political tradecraft and often confuses corruption with failed politics. The voters can be savvier in this respect.  The good politician who is “political” to the core may be good at her job and rewarded with re-election.  The one who may be well meaning but inept will not be so well treated, and while he may be denounced as corrupt, it is ineptitude that accounts for his failure.

One interesting question is how a politician’s behavior is influenced by constituent expectation—by the interaction with those who in one form or another, within the Fishkin categories, offer their votes or financial support or both. The constituent who trades money for a legislative act is engaged in quid pro quo corruption; the one who offers a contribution with no such agreement and modest expectations, just satisfied that the politician will do the best she can, is not engaged in bribery; and perhaps others will express themselves with a contribution but do not believe that anything will come of it.  In each case, the donor establishes a different relationship with the politician that makes for more or less room for the politician to ply her trade.

That is the nub of the political offense committed by the briber and the willing politician. By the agreement that a specific act is paid for, the politician has to lay aside a range of choices in the performance of her office.  The politician cannot trade this act off against others, delaying its pursuit to another day. It cannot be bargained away in whole or in part, because the act the donor is seeking is bought and paid for, and must be delivered.  This is both corrupt politics and bad for politics; and it is bad politics because it shrinks the space for effective political behavior.

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