Oversimplifying Corruption and the Power of Disgust

April 8, 2015
posted by Bob Bauer

Has the Supreme Court created an environment “pregnant with possibility of corruption?”  The Washington Post Editorial Board makes this case, building it around the rise of super PACs, and it locates the problem in the Supreme Court’s reasoning in Citizens United.  The argument does not clarify especially well the choices ahead in campaign finances, or the role of Citizens United in shaping them, or the means of grappling with bona fide corruption.  The Post’s miscue is the insistence on keeping campaign finance reform tied tightly to the corruption debate—or, more accurately, tied up with it, with nowhere to go.

What the editorial has to say about Super PAC independent expenditures could be asserted about any independent expenditure.  The culprit, if there is one to be found, is Buckley v. ValeoCitizens United  followed its reasoning, perhaps more faithfully than some would like, but the 1976 Court rejected limits on expenditures made without the request or suggestion of, or in consultation with, a candidate. Super PACs are sophisticated consumers now of what the Court offered then.  The product for sale remains largely the same. Individuals giving to a Super PAC can go into business for themselves, spending independently without a PAC as go-between.  And as Michael Gilbert and Brian Barnes argue, anti-coordination rules won’t operate to limit the quid pro quo corruption believed to follow from unlimited independent spending.

The Super PAC is the latest in a series of developments in campaign finance that have been linked with considerable fanfare to the threat of corruption.  In the 1970’s it was the contribution programs of the political action committee (the regular PAC, not then so Super), and in the 1980’s, it was party soft money. In these different forms—through or outside the parties, through contributions or independent expenditures—the corrupt money was the money in most liberal or accessible supply that candidates were seen to be chasing.  And this is the point about campaign finance reform arguments centered on corruption: there is always the potential that a candidate in need of money will make an illegal trade for it, and yet no reform in a system of private fundraising, certainly none that will survive constitutional review, will eliminate that risk.

And the risk seems limited. Larry Lessig, a leading exponent of reform, says he does not take members of Congress as a class to be corrupt, and he reaches this conclusion at a time in electoral politics when candidates for both the House and Senate must raise millions for election or re-election. In a recent paper, Rick Hasen comes to a similar conclusion from a different direction, finding that the incidence of federal corruption prosecutions, considered state by state, does not appear related to the strictness of campaign contribution limits.

Most striking is Hasen’s suggestion that protections against rank sale of office might be devised outside the field of campaign finance.  He cites as one example the deterrent role of a vigorous media presence and asks whether we would do better in attacking the problem of corruption to shore up the resources for investigative journalism.

The Hasen line of argument usefully recasts the argument in two respects.  First, he is pressing the point that for all the passion expended on the corruption argument, the evidence may not bear out the link to campaign finance.  But, second, he is not asking that concerns about corruption be set aside, but instead that clear thought be given to the deeper causes of corrupt behavior and to legislative responses more precisely crafted to address them.

A refusal to heed this counsel could have perverse consequences. By regulating activity without reasonable expectation of attaining the desired end, the law can strike a blow for appearances, making everybody feel good all around. But this comes at a cost, because it is then imagined that the problem of quid pro quo corruption has been solved or meaningfully contained, when it has not, and the alternatives for dealing with corruption slide down the scale of priorities or disappear from active consideration.   This is a point about regulating “for the sake of appearances” made by Professor Adam Samaha, and Gilbert and Barnes touch on it as well.

The grip of campaign finance on discussions of corruption has a number of causes but one of them is plain disgust with the system of private fundraising.  Observers repelled by the money chase point to all of its undesirable features.  They rue the time expended by officials and candidates on “dialing for dollars.”  They are offended that donors or fundraisers, the political allies of the candidate, expect appreciative recognition and get it.  They dislike the uses of the money for heavily funded advertising appeal that are short on information and long on emotional appeals or substance.  It is all corrupt or corrupting, they believe, and quid pro quo corruption, among the other kinds, is to them at best a serious risk, and at worst inevitable.

These appeals for better, more rationally funded campaigns, and for protecting against the sale of office, are reasonable and worthy, but too often mixed together and argued under the heading “corruption.”   This has resulted in oversimplifying the problem and mistaking the remedy.

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