Selling the American Anti-Corruption Act

December 5, 2013
posted by Bob Bauer

Consider this program to—


Represent.Us is not just building a movement in support of the [American Anti-Corruption] Act, we’re going to use our collective power to stand against those who stand for corruption. If it becomes law, the Act will completely reshape American politics and policy-making and give people a voice.

This is a bold claim that the sponsors of the American Anti-Corruption Act have made. Perhaps “bold” is the wrong word; “audacious” might be more accurate. The sponsors declare that the adoption of their proposal will “completely” reshape American politics and that it will be “completely transformative” in giving the people a voice in their government.

There is much to discuss here, but the first question is how the sponsors make the case for their plan. The plan’s various provisions are by and large familiar—such as additional disclosure requirements, revolving door restrictions and public financing—but the sponsors claim that these parts have been stitched together into an omnibus package with sweeping effect and little risk of constitutional objection from the courts, “even…the current Supreme Court.”

Rick Hasen picks up on a long-running disagreement with one of the proposal’s sponsors, Professor Larry Lessig, and detects deceptive packaging. Lessig would claim that the proposal is built around a sophisticated view of what he calls “dependence corruption”—a bad system that draws good people into doing bad things. Hasen judges the anti-corruption rhetoric of the Act’s sponsors as indistinguishable from the kind that has been in use for decades in the campaign finance debate. So Hasen objects that whatever else one thinks about the proposal, the salesmanship is misleading. And, as he has before, he disputes whether the concept of dependence corruption adds anything new or useful to reform thinking, except that it shrinks from embracing the political equality rationale that Hasen favors.

Hasen’s argument goes beyond merely the deception that he believes is practiced here. He also objects to a line of argument that, in the name of restoring public trust, contributes to weakening it. Americans hear once again that their government is being stolen from them behind their back by all manner of illicit uses of money. While Hasen is certainly sympathetic to the overall political reform objective, he believes that this anti-corruption line of argument is unhealthy and a source of the very problem of public disaffection that reformers have dedicated themselves to solving.

A related concern is that the sponsors’ pitch for their product shares some of the less desirable characteristics of policy argument in what is often termed the “polarized politics” of the day. Here we have large, unqualified claims and oversimplified rhetoric to go with them. The sponsors believe that upon enactment of their proposed political reforms, the problems with government will somehow vanish into the night air. Politics will be completely remade. Gone will be starkly different constitutional visions, strong differences over policy, political struggle: and what will be left is a process at last freed from corrupt conduct to be productive. With the passage of the American Anti-Corruption Act, a new day will dawn and government will represent all the people. Apparently none of “the people” have been a party to the hard disagreements of American politics.

The presentation of this proposal does not acknowledge the slightest complexity. Are the proposed reforms, some involving significant restrictions on campaign finance and other political activity, constitutional? The sponsors answer in bold type: Yes, It’s Constitutional! The “constitutional attorneys” consulted on the matter “confirm” that the act is constitutional. That only confirmation was required suggests that all along the sponsors were secure in their constitutional judgments and constitutional lawyers have now confirmed them in their certitude. In any event, we can all be reassured and should be ready to go.

But wait: the sponsors also support a constitutional amendment to “get money out” of the political process. And their Act is merely another way to the same objective. The sponsors liken their approach to the multi-front assault on Mount Everest: different teams take different routes to “increase the likelihood of success.” But if the proposals made here are achievable under existing law and don’t require a constitutional amendment, why would those supporting the Act care about constitutional change?

One possible answer is that while the sponsors profess much confidence in the constitutional soundness of their proposals, they may not be as bullish about their prospects as they claim or as they urge their audience to be. They are right to harbor inner doubts. Here is one example. They would have the law changed to impose new, broadly drawn “coordination” restrictions on independent expenditures, one of which merits particular attention as going beyond what could be described as constitutionally safe, “even” from the current Court.

Provision seven of the proposed act would treat any expenditure as “coordinated” if “a candidate publicly or privately endorses or approves of an organization’s expenditure benefiting that candidate or any of the organization’s activities….” By this standard, the independent organization can operate completely independently but at no time, in any way, can the candidate observing the expenditures speak positively about them or about the committee’s activities—for if she does, the committee’s independence is lost.

The American Anti-Corruption Act’s lawyers believe that this is incontestably constitutional. Turning to the document they offer in support of their constitutional reasoning, described as a “detailed explanation,” one finds a single paragraph of three lines setting forth the proposition that “there is little doubt that tightening the coordination regulations is constitutional.” Why so little doubt? Because “the Supreme Court has stated that independent expenditures must be made “totally,” ”wholly” or “truly” independently.

Of course, as these and other constitutional lawyers know full well, the Court is here referring to an independence in the making of expenditures—an independence from the candidate in planning and making them. No one has ever seriously suggested that if a candidate is pleased with independent expenditure or expresses the view that they were helpful to his campaign, the spending organization surrenders its claim to independence and is limited in the amount that it can spend. Under this theory, an independent committee retains its constitutional protections at the mercy of a candidate who must disapprove of the spending or fall discreetly silent. Who among those at all familiar with the Court’s jurisprudence believes this?

Does it matter that the sponsors of these reforms have launched an aggressive marketing campaign that overstates the originality of the program, the transformative effect it would have, and the clear constitutional sailing that can be expected? Maybe not: the sponsors are undoubtedly committed to reform and convinced that their proposals will bring it about. But this kind of reform, political reform, is about improving on political practice and culture, as the sponsors freely acknowledge: “campaign finance is … about the quality, credibility and integrity of the issues that get argued, hashed out and decided every single day in Washington and in statehouses.” Judged by this standard, the selling of the American Anti-Corruption Act could also benefit from reform.

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