The “Access” Issue

January 26, 2016
posted by Bob Bauer

One line of argument in the McDonnell case briefing accepts that supporters might expect some preferential treatment—“procedural access,” like a meeting—but not official influence to carry the supporter’s case on the merits.  This is one way that routine politics would be distinguished from corrupt politics.

Professor Jeffrey Bellin, thoughtfully but also passionately, says that this won’t do, and that routine politics, including rewarding supporters with access, ought to be criminalized.  Getting any preferential consideration for money is quid pro quo corruption.  If the Court will establish and hold this line, Professor Bellin argues, it will reduce the significance of money in politics and “the big money will dry up.”

One question is how the Court would fashion a workable rule along these lines.  Without a “per se rule” barring an elected official from ever scheduling meetings with a contributor, or making similar accommodations, the approach Bellin favors would require scrutinizing the motives, often mixed, of politicians.  A politician might schedule a meeting requested by a contributor because she has given, but also because she has something to say that the elected official would like to hear.  Or the politician might even have something to say to the donor—something she, the politician, would like to have understood by the industry or interests that a donor might represent.  The contributor might also have provided other forms of support that the officeholders might wish to recognize—like help on the campaign trail.  It is difficult to say where the raw politics end and the rotten, corrupt kind begin, and no easier to believe that prosecutors and courts are in the best position to judge the question.

But there are additional problems with this emphasis on money. Supporters who deliver votes, endorsements or favorable media commentary are also banking plenty of goodwill with an elected official, and they will also expect that their calls will be returned and that their requests for meetings will be answered affirmatively.  They are being recognized for their political speech (and other actions that are expressive in character). Why would giving money, within the legal limits of the law, be treated as somehow so different that we would deny these speakers comparable treatment, then subject them to the criminal laws if they get it? In what way is money different?

Commentators intensely focused on money and what it can “buy” suggest that it is just that much more valuable to the elected official, that much more corrupting.  Yet the corrupting element has been supposedly accounted for, in part, in the structure of the campaign finance laws, as in the limits and disclosure requirements.  (And there is not much force in this context to the answer that campaign finance laws are failing: if that is the concern, it would be best addressed straightforwardly, not by adjusting the criminal laws to compensate for disagreements over campaign finance reform that remain unresolved.)

So the criminal laws are applied where there is a further and specific exchange of official favor for cash or other benefits promised or received, and they should apply equally to any quid pro quo exchange of value: there is also legal peril in conditioning an endorsement on an official act favoring the endorser.  The law would then prohibit an officeholder from agreeing readily to schedule a meeting with the head of an organization that provided a well-timed endorsement in the last campaign.

If that seems wrong, then it would be wrong as well to deny this preferential treatment to the donor of money.  Or if it is somehow right, the consideration given the supporter is presumably improper in both cases.

The novelist Julian Barnes recently told the Financial Times that “politicians are there to disappoint us.”  That could be going too far.  Where there is disappointment, however, it follows from frustrated expectations, and the expectations arise in political relationships between the politician and voters, or between the politician and his most active supporters.  Voters will expect fulfillment of campaign commitments or promises, and supporters will also expect that they will not be forgotten.

Dealing with the risk of disappointing others is the politician’s challenge, and he will need reasonable, manageable space within which to meet it.  He will have little chance of success if, because of the threat of criminal penalties, a supporter can’t reasonably expect favorable consideration of a meeting or the return of a phone call.  The problem is not solved by distinguishing between supporters and denying supporters who gave campaign contributions the recognition—in this instance, access—that may be appropriately granted to the others.

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