I have stressed throughout this volume that a patriotic movement should not, and need not, seek harmony and conformity, let alone suppress conflicts and differences in the name of unity. It “merely” needs to formulate and promote core values that can contain conflicts and provide criteria for their resolution. Jean-Jacques Rousseau refers to this challenge as a continual contest between the general will and “the particular and often contradictory wills of individuals in groups.”1
In most democratic societies, the national community and its core values have weakened as libertarian ideologies and narrowly based special interests have gained more power. The common good has been eroding. Assets intended to serve the whole community, or those most in need, have been increasingly diverted to the wealthy and the powerful. While this is true for most democracies, this is particularly the case in the US. Hence, this chapter focuses on the ways the common good is undermined in the US.
Democracy is premised on the separation of economic (and social) power from political power. Democracy can tolerate a fair amount of difference in the accumulation of economic power (although the current levels of inequality may pose a danger to democracy all of their own), but it requires that economic power will not be converted into political power—that in civic life equality will reign, that each person will have just one vote. In many democracies, especially in the US following several Supreme Court resolutions (discussed below), those who have amassed economic power are also concentrating political power. Concentration of political power undermines the social contract that is at the foundation of democratic regimes, rendering them less legitimate.
Among the factors that engender populism, few are as important as the failure of representation. America’s Founding Fathers were correctly worried about what they called the mobs, the masses, whose initial raw reactions to a national challenge can be very troubling. The Founders hence sought to set up political institutions that will absorb these raw expressions and—through deliberations in legislative bodies and the accompanying moral dialogues—transform these expressions into more reasoned and responsible positions.
However, as elected officials increasingly heed narrowly based special interests, the outcomes of their deliberations no longer serve to absorb raw protest and convert it into sensible policies. The masses may not always fully understand why and how the representation system is corrupted, but they sense that their values and interests are no longer heeded. As a result they have become prey to demagogues who use social media to give voice to the raw, unprocessed feelings of the masses. It takes years before people realize that these demagogues give voice but do not deliver. The people then turn to other such demagogues, maintaining populism. As the patriotic movement seeks to rejuvenate democracy, it must work to ensure that elected officials represent the people and not narrowly based special interests.
By far the most important tool that special interest groups use is providing large amounts of money to elected officials and those who seek public office. These payments very often amount to legalized bribery. A patriotic movement cannot succeed unless it seeks to limit the influence of economic power in shaping public policy and laws as a major part of its agenda.
Campaign finance reforms are said to be unappealing to the public, either because people are more interested in substantive than in procedural issues or because they believe politics cannot be cleaned. Given the massive harm caused by legalized bribery by special interests, however, the patriotic movement has no choice. It will either find a way to address this issue, and profoundly rather than at the margin, or it will be unable to protect the common good.
Many suggestions have been made on ways to limit the contributions donors can give. This chapter takes into account the Supreme Court’s rulings that these limitations tend to violate freedom of speech (roughly summed up in the phrase “money is speech”).2 Hence I suggest that instead of limiting what people can give, the law should limit what donors can get in return for their contributions. Many donors would not be motivated to make campaign contributions if they could no longer gain substantial material benefits unavailable to other parties with the same attributes. In effect, if contributors get benefits—denied to others with the same qualifications—in exchange for their contributions, they should be treated as if they had violated the law by giving a bribe. (The issues that arise in proving that indeed there was a quid pro quo are discussed below.)
At the same time, those who make contributions because they support the moral, philosophical, or ideological positions of elected officials, or strive to promote the common good—and hence neither seek nor gain any substantial material benefits for themselves in return—would continue to be free to make contributions.
To curb the corrupting effects of campaign contributions, Congress should enact a law, and/or the courts should interpret existing law, that would treat as a bribe those campaign contributions in which the contributors gain a substantial material benefit not granted to others under comparable circumstances. The text should state something along the lines of the following: anyone who “directly or indirectly gives, offers, or promises anything of value to any member of Congress or a person seeking to be elected as a member of Congress, for or because of any act performed or to be performed by such person, who in return modifies Congressional acts to provide a special substantial benefit to the contributor himself/herself or a corporation, will be charged with having offered a bribe.”3 The penalty for such a violation of the law ought to be the same as for bribes offered to those in the executive branch or to judges.
The benefits, under discussion, may include appropriation of public funds (as when Congress votes that public funds will be granted to a particular person or corporation, e.g., available only to car companies operating in Michigan); tax reductions (e.g., available only to managers of hedge funds); granting credit at favorable terms (e.g., below the market value); exclusive rights to provide a service or product (e.g., supplying food to troops in noncompetitive bidding); according exclusive access to valuable resources (e.g., rights to use a former military base in the heart of San Francisco); or otherwise ensuring substantial material benefit to some while not making these same benefits available to others with the same attributes.
The qualification “substantial” material benefits serves to prevent zealous prosecutors from going after people receiving minor benefits, for instance, free school lunches to children who are not entitled to get them. The qualification “material” benefits is included to avoid criminalizing contributions made in exchange for supportive speech, for example, a member of Congress from Indiana praising the Hoosiers. However, if the praise leads to considerable material gains, for instance, the elected official praises a product of the contributor—within a defined period before or after the donation was made—and the praise results in substantially increased sales, it would be considered a bribe. (These distinctions are important as similar concerns were raised by the Supreme Court in United States v. Sun-Diamond, which maintained that an overly broad interpretation of the federal bribery and gratuities statute “would criminalize, for example, token gifts to the President based on his official position and not linked to any identifiable act—such as the replica jerseys given by championship sports teams each year during ceremonial White House visits.”)4 From here on, the term “benefits” is used to refer to substantial material benefits.
All special benefits should be banned preceding or following contributions for two years for members of the House and three for members of the Senate. One may wonder how members of Congress are to know whether they will be rewarded with contributions upon granting a benefit to a given person or corporation. They may well not. The clause is still needed to prevent contributors from promising elected officials contributions after enactment of special favors. The onus is on the contributor, not on the member of Congress.
Some contributors argue that they give because they share the philosophical positions of the candidates. However, if they do not donate to other political candidates with similar views but only to those who reciprocate with special benefits, this defense should not stand. This argument is particularly indefensible when benefits follow contributions to elected officials with opposing philosophies. This nonpartisan opportunism is not uncommon. As Donald Trump revealed: “I give to everybody. When they call, I give. And you know what, when I need something from them two years later, three years later, I call them. They are there for me.”5
To illustrate: Senators Orrin Hatch and Tom Harkin cosponsored the Dietary Supplement Health and Education Act of 1994, which defined supplements as food rather than drugs, allowing the supplements to be marketed and sold without appropriate oversight and safety testing. Since that time, they have continued to mobilize senators to vote against legislation to regulate the supplements industry. They pressured the Senate to vote down Senator Dick Durbin’s amendment to the 2012 FDA Safety and Innovation Act, which would have required supplements with potentially serious side effects to be labeled, and Senator John McCain’s 2010 Dietary Supplement Safety Act, which would have required “manufacturers to register with the FDA and fully disclose the ingredients.” They also pressured FDA officials to weaken their draft “Dietary Ingredient Guidance.”
Harkin and Hatch’s efforts are a major reason that unregulated supplements suffer from poor quality control and inspection. A 2013 study found that herbal supplements often contain unlabeled fillers or contaminants and that fully a third showed “no trace of the plant advertised on the bottle.”6 The two senators have been the top recipients of donations from this industry for decades.7 There are numerous cases of such quid pro quo. One can argue that Senator Hatch, a conservative Republican, voted that way because he is opposed to regulation on ideological grounds. The same cannot be said about Senator Harkin, a liberal Democrat.
How is one to determine that the benefits elected officials grant, which follow or precede contributions within the defined period, are preferential to the contributor? Part of the answer is found in the defining attributes of the legislation. If the attribute is not impartial to the relevant constituency receiving the benefits (say, targeting all children, all farmers, or all exporters) but focuses only on the group related to the contributor (say, only children in private schools if the donor is an association of private schools), a bribe may be suspected.
Sometimes Congress members can and do define attributes of various benefits in impartial terms, but on closer examination, only one or a small number of chosen beneficiaries is found to qualify; for example, funds for a stadium are to be provided to a city a mile high and with a population of at least one million people. While the text does not single out a particular city, in effect only one city meets these criteria, Denver. The test lies in determining the relevance of the attribute. If it is true, in the case at hand, that football players cannot play in a smaller city at a lower altitude, then no bribe may be suspected. If not, red flags should be raised. One may argue that sorting out various attributes to determine whether specific benefits are related to specific contributions in partial terms is a messy and subjective task. However, there is considerable evidence from other areas of law to determine when the attributes are justified and when they are merely rationalizations for special treatment.
Thus, US employment law allows preferential criteria, that is, discrimination, based on bona fide occupational qualifications that encompass national origin, sex, and religion. Employers may use such criteria when “reasonably necessary to the normal operation of that particular business or enterprise.”8 For example, in Dothard v. Rawlinson, the Supreme Court ruled that although Alabama’s height and weight requirements for prison guards were unlawful because they disproportionately discriminated against female candidates, the prohibition of women working as prison guards in a male maximum security prison was justified under the bona fide occupational qualification exception out of security concerns. The Court reasoned: “A woman’s relative ability to maintain order in a male, maximum security, unclassified penitentiary of the type Alabama now runs could be directly reduced by her womanhood. There is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison.”9
Age can also fall under the category of bona fide occupational qualifications according to the Age Discrimination in Employment Act.10 In Western Air Lines v. Criswell, the Supreme Court ruled that the bona fide occupational qualification exception allowed for a mandatory retirement age of flight engineers for public safety reasons.11 In contrast, in Griggs v. Duke Power Co., the Court ruled that the power company’s requirement of a high school diploma for employment could not be upheld (i.e., it was not a relevant attribute) because the nature of the job did not require the skills and knowledge associated with such a degree. And the requirement discriminated against African Americans.12
One can further illuminate the difference between relevant and discriminatory distribution of benefits by returning to the vitamin supplements act. The question is whether supplements are foods or drugs. The fact is that people do not take them for nutrition and are not concerned about their calories, fats, or sugar. They take them, in small amounts, to improve their health. Classifying supplements as food obfuscates the relevant attribute in favor of an irrelevant, biased attribute in order to provide special benefits to the vitamin supplement industry not available to other drug makers. It is a skewed, unfair definition on the face of it.
If the Sierra Club made contributions to secure “untrampled ski slopes for its members,” as it was charged, these contributions would be a violation of the suggested law. On the other hand, contributions intended to protect the environment for everyone are not. If Emily’s List made contributions to politicians who secure abortion rights only for its members, it would be in violation of the suggested law; as long as it makes these only to politicians who support these rights for all women, it is not a violation—even if this right is not extended to men, because this discretion is based on a relevant attribute. Scholars tend to consider it a flaw if a definition is not airtight. However, in law there are always fuzzy cases. This does not mean that laws need to be abandoned; borderline cases can be decided by juries.
Note that the suggested approach expands the definition of quid pro quo in two ways. First, it does not require proof for an explicit agreement between the giver (the contributors) and the provider of special benefits (the member of Congress whose campaign received the contribution). That is between the Give and the Get. There are many situations where the connection between the donations and the allotment of benefits is obvious, so that any reasonable person would see that corruption was taking place. A criterion often used by the courts, “reasonable person” is defined as “a hypothetical person in society who exercises average care, skill, and judgment.”13
This chapter’s focus is on the prosecution of contributors and leaves the treatment of Congress members who received contributions deemed illegal to Congress itself. The reforms proposed in this chapter require proof of payment by a donor and the subsequent receipt of an irrelevant benefit. For those who feel that intent needs to be proven, it could be done in a variety of ways, whether through leaked emails, disaffected staff, or whistleblowers.
“Getting Only Access”
Some advocates of the prevailing system argue that contributors are merely buying access rather than gaining benefits. The Supreme Court has reinforced this claim in Citizens United. According to the opinion delivered by Associate Justice Anthony Kennedy in Citizens United, “Ingratiation and access . . . are not corruption.”14
Gaining access is by itself a very valuable benefit. Members of Congress work under great time constraints. Many, especially House members, spend a significant amount of time each week soliciting funds. According to Representative Rick Nolan, new members were told to fund-raise for thirty hours each week in 2016.15 Newly elected House Democrats were advised to spend at least twenty hours per week fund-raising in 2013.16 They vote hundreds of times a year.17 They are expected to attend staff briefings on bills’ contents, as well as committee meetings of Congress and of their party. They also need to visit their constituents and travel back and forth between their home and DC. And they have, of course, personal needs, ranging from family matters to friendships and hobbies. For a person representing a special interest, gaining even fifteen minutes of a Congress member’s time is a valuable benefit simply due to scarcity. Congress members have limited time to give, and any time granted to one lobbyist cannot be granted to others, who might have opposing views. Moreover, for many lobbyists of special interests, merely demonstrating privileged access to political power allows them to be rewarded by the special interest they represent.
In many situations, though, contributions lead to, or are followed by, very concrete benefits well beyond access. Leading up to the congressional repeal of the US oil export ban, some of the largest oil and gas companies contributed millions of dollars to the Senate Leadership Fund, a super PAC for Senate Republicans run by former aides to Senator Mitch McConnell. Specifically, “In the second half of 2015, Senate Leadership Fund received $1 million from Chevron, $1 million from Petrodome Energy, $750,000 from Devon Energy Corporation and $500,000 from Freeport LNG CEO Michael Smith.”18 Congress passed the repeal of the oil export ban as part of a spending bill designed to prevent a government shutdown, and it was subsequently signed by President Obama.19 “For oil executives,” Clifford Krauss and Diane Cardwell reported, “[this] was the culmination of a long-sought goal.”20 The sixty-two senators who voted for the Keystone XL Pipeline collectively received $31,754,343 from fossil fuel companies, compared to the combined total of $2,672,091 given to the thirty-six who voted against it.21
The fact that campaign contributions flow much more to committees that can dish out benefits, especially appropriations committees, and much less to committees unable to do so (e.g., foreign policy), and much more to chairs rather than their members, is indirect evidence of the connection between Give and Get.
Nonconstituent Donations Are Particularly Suspect
Particularly suspect are benefits granted to contributors, individuals, or corporations outside Congress members’ districts. This is far from a rare phenomenon. According to Anne Baker, between 2006 and 2012, “The average member of the House received just 11 percent of all campaign funds from donors inside the district.”22 McCutcheon is a case that highlights nonconstituent contributions: Shaun McCutcheon, who had contributed to sixteen federal candidates, filed a complaint because of his inability to contribute to twelve other federal candidates, as well as various political committees, because of aggregate limits. McCutcheon was a resident of Alabama and had contributed to congressional candidates across the country.23 None of the twelve candidates to whom he intended to contribute was running for election from Alabama.24 As Richard Briffault explains: “By preserving the base limits while striking down the aggregate limits, McCutcheon enables an individual to give much more money but—not any more money to any one candidate. . . . Unless the donor wants to give money to many more candidates campaigning against each other in the same electoral contest—which seems unlikely—the donor will give to more candidates in many different states and districts. By striking down the aggregate limits, McCutcheon directly promotes contributions by non-constituents.”25 Briffault then tackles the Court’s rhetoric in McCutcheon with regard to responsiveness, asserting that despite Chief Justice John Roberts’s “contention that striking down the aggregate donation cap will promote the accountability of representatives to their constituents,” in fact it does no such thing. As Briffault points out, representatives may be responsive to contributors, but when these contributors are not constituents, it “undermin[es] the very responsiveness to the people that the Chief Justice rightly celebrates as ‘key to the concept of self-governance.’”26 In short, campaign contributions from nonconstituents should face a higher level of scrutiny than those from constituents. They are particularly likely to lead to inappropriate benefits because interests served do not stem from the constituency that the given member of Congress has a duty to serve—and may well disadvantage them when the benefits flow to others.
Acts Are Not Speech
Courts have limited admissible evidence in the bribery prosecution of Congress members in light of the US Constitution’s Speech or Debate Clause, which states that “for any Speech or Debate in either House, they [senators and representatives] shall not be questioned in any other place.”27 For example, in United States v. Helstoski, a congressman is charged with accepting bribes to introduce private bills. The Court ruled that past legislative acts could not be used in trial due to the Speech or Debate Clause, though the Court explicitly recognized that this ruling would have a major impact on prosecuting bribery. In its opinion, the Court stated: “The Government . . . argues that exclusion of references to past legislative acts will make prosecutions more difficult because such references are essential to show the motive for taking money. . . . We do not accept the Government’s arguments; without doubt the exclusion of such evidence will make prosecutions more difficult. Indeed, the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts. We therefore agree with the Court of Appeals that references to past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause.”28 Joseph Weeks wryly but correctly points out that such rulings make it extremely difficult to establish that a member of Congress acts illegally, because “all legislative acts of the defendant at the time of trial are past legislative acts.”29
A straightforward reading of the Speech or Debate Clause shows that it covers speech that is distinguishable from acts. In effect, a large body of law is based on this distinction. Simply put, talking about illicit conduct is usually treated very differently from acting on those words. In legal practice, there is a world of difference between threatening to kill someone and actually killing someone. The Supreme Court’s assertion in United States v. Apfelbaum that “in the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur”30 speaks to this point. The First Amendment protects offensive speech—even hate speech—but not harmful action. When people are threatened, but merely with words, the police often respond that they have no grounds on which to act.
Deliberation and voting on the House or Senate floor should be distinguished along the same lines. The vote should not be construed as speech but as an act. Associate Justice Antonin Scalia provided the following rationale for this distinction: “There are, to be sure, instances where action conveys a symbolic meaning—such as the burning of a flag to convey disagreement with a country’s policies. . . . But the act of voting symbolizes nothing. It discloses, to be sure, that the legislator wishes (for whatever reason) that the proposition on the floor be adopted, just as a physical assault discloses that the attacker dislikes the victim. But neither the one nor the other is an act of communication.”31 In short, if contributors gain discriminatory benefits from a Congress member to whom they donated funds within the defined period, the Speech or Debate Clause of the Constitution should not be read as providing them with legal cover.
Independent Expenditures Need to Be Tied In
The Supreme Court has ruled that independent expenditures32 pose no threat of corruption as they are uncoordinated with the candidate and that imposing limitations amounts to infringing on free speech. In Citizens United v. Federal Election Commission, the group Citizens United produced a scathing documentary on then senator Hillary Clinton with the intention of releasing it within thirty days of the primary election. The release of “electioneering communications” paid for by corporations and unions within thirty days of the primary was prohibited at the time. The Court overturned this restriction and opened the door to unlimited independent expenditures. The Court quotes Buckley to explain its rationale: “The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”33 The Court held that because independent expenditures are not coordinated with the candidate, there is no risk for quid pro quo corruption. The ruling in Citizens United helped lay the foundation for super PACs to which individuals and corporations can make unlimited contributions.34
There are several ways that candidates and the so-called independent PACs sidestep anticoordination regulations. First, Federal Election Commission (FEC) rules allow super PACs and campaigns to communicate directly. They may not discuss a candidate’s strategy but may confer on “issue ads” featuring a candidate.35 Matea Gold writes that “it is now standard practice for candidates to share suggested television ad scripts and video footage online—materials that are then scooped up by outside groups and turned into television spots.”36 Second, it is very easy for those who spend the super PAC monies to note which points their candidate is flagging and run ads to support these points, prepare supportive campaign literature, and so on. Finally, many candidates fund-raise for super PACs, and while the candidates themselves cannot ask for contributions of more than five thousand dollars, the FEC issued an advisory opinion that allows campaign aides to raise greater amounts for super PACs.37 Not surprisingly, super PACs with ties to a specific candidate appear to gain most of the contributions.38 In the words of Representative David Price (D-NC), “It amounts to a joke that there’s no coordination between these individual super PACs and the candidates.”39 As the election law attorney Robert Kelner puts it, “If there’s no separation between the campaigns and outside groups, then the logic of the Citizens United decision really falls apart.”40
In determining whether a given party made contributions that led to inappropriate benefits, one must take into account the contributions made to independent groups, which in effect are coordinated with the member of Congress. As a result, if the reforms here suggested are to take effect, gaps in disclosure need to be addressed so that the source of contributions to “independent groups” is not obscured and connections can be made between such contributions and benefits.
“If It Ain’t Broke, Don’t Fix It”
Arguments against campaign regulation often diminish the role of money in politics by highlighting cases where winners are far outspent by their opponents. In that vein, Bradley Smith writes that higher spending does not necessarily translate into victory. Michael Huffington, Lewis Lehrman, Mark Dayton, John Connally, and Clayton Williams are just a few of the lavish spenders who wound up on the losing end of campaigns. As Michael Malbin, director of the Center for Legislative Studies at the Rockefeller Institute of Government, explains, “Having money means having the ability to be heard; it does not mean that voters will like what they hear.”41
As many studies show, however, the cases where the highest-spending candidate lost are few and far between. For instance, in 2008, candidates who raised more funds than their opponents won 93 percent of House elections and 94 percent of Senate elections.42 In the 2012 midterm elections, 93.8 percent of House races and 75.8 percent of Senate races were won by the candidate who spent more. In 2014, these numbers increased to 94.2 percent for the House and 81.8 percent for the Senate.43
“Lobbying Is a Constitutionally Protected Right”
Some skeptics of campaign regulation contend that lobbying is protected by the Constitution. The First Amendment accords Americans the right to “petition the government for a redress of grievances.”44 The reforms advocated in this chapter do not aim to ban lobbying; rather, their goal is only to prevent those interests that back up their lobbying with campaign contributions from gaining benefits unavailable to others in similar circumstances. True, the Supreme Court ruled in Buckley v. Valeo that “equalizing the financial resources of candidates competing for federal office” is not “a justification for restricting the scope of federal election campaigns.”45 However, the reforms here suggested do not seek to equalize the playing field but merely to ensure that many voices that are currently drowned out will gain a chance to be heard.
“One Cannot Stop Private Monies from Gushing into Politics”
While imperfect, the UK’s election system provides a helpful model for emulation and for curbing cynicism that money will find its way into elections one way or another. Parliamentary campaigns in the UK have strict and low spending limits.46 As of the 2015 general election in the UK, during the months before candidacy has been formally declared, individuals could spend £30,700 (an extra allotment is granted of either 9p or 6p per voter depending on whether they are contesting a county or borough seat, respectively). Once a person became an official candidate, the short campaign limit, about a month, allowed £8,700 to be spent.47 The spending limits for political parties depend on the number of seats that party contests; the highest limit would be £19.5 million if a party had candidates running in all 650 constituencies.48 Furthermore, paid political advertising on television and radio is illegal. Instead, political parties are granted a certain amount of free radio and television coverage. Candidates are allowed to send one election communication to every elector in the constituency through the postal system at no cost.49
The length of campaigns in the UK is drastically shorter than in the US. In 2015, the duration of the “official” campaign was thirty-seven days, and this was the longest in modern British history.50 Particularly of note is that party discipline is very strong in the UK, inherent in its parliamentary system. Members of Parliament (MPs) vote on most issues in line with the instructions from their party whip.51 This rule makes MPs much less corruptible than members of Congress. Making a deal with an MP is of little value because the MP cannot deliver if the deal differs from the party line. The UK system is not perfect. For instance, some members of Parliament were found to receive gifts in return for asking questions during debates of interest to the donor. The differences with the American system, however, are still stark. In the US, distribution of benefits to special interests in exchange for campaign contributions is rampant, whereas in the UK such distributions are rare, as far as individual legislators are concerned. We can aspire to a much cleaner political system.52
Limiting Contributions Is More Important Than Limiting Perks
This chapter focuses on contributions of funds, whereas the media often spotlight perks, such as free meals (as long as they do not cost more than two hundred dollars) and some forms of travel.53 The issue of campaign contributions seems too abstract and “procedural” to many voters rather than pressing and substantive. Such contributions, however, are much more consequential than perks. If a Congress member does not get gifts or junkets, his lifestyle may become less ritzy, but if he loses campaign contributions, he is likely to lose his job in the next election, including his power, income, prestige—as well as the perks. Moreover, members of Congress can draw on their campaign chest to pay for perks.54 No wonder Congress members have been more amenable to limiting legal perks than capping legal contributions. The latter matter much more and should be the first, second, and third priority of any reform.
Limiting the Give?
Concern over the corrupting influence of campaign contributions has led to a considerable number of reforms to limit what a contributor can give a member of Congress or someone seeking to become one. Many of these reforms have been declared unconstitutional by the Supreme Court; others have failed for different reasons. A few illustrations follow.
The Federal Election Campaign Act (FECA) of 1971 and its 1974 amendments established limits on campaign contributions and expenditures. Contribution limits were set for the amount individuals, groups, and political committees could give a single candidate during an election cycle, in addition to an annual contribution limit for individual contributors. Independent expenditure limits were imposed on individuals and groups that capped the amount each candidate could spend in a given election. Expenditure limits were also placed on the amount of personal funds a candidate can use to finance his or her campaign, as well as on the total amount a campaign can spend on an election. However, in the 1976 case Buckley v. Valeo, the Supreme Court ruled that the expenditure limits were unconstitutional on First Amendment grounds, as they directly restrict political expression. (This rationale is often referred to as the Court having ruled that “money is speech.”)
Besides noting restriction of political expression, the Court also ruled that the independent expenditure limits conflicted with the freedom of association protected by the First Amendment. It reasoned that “limitation on independent expenditures ‘relative to a clearly identified candidate’ precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association.”55
The political expression rationale was also used by the Court to rule that limits on millionaires and billionaires using their own funds to finance a campaign were unconstitutional. The Court maintained that “the candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election.”56 The Court asserted the importance of candidates’ “unfettered opportunity” for expressing their position so that voters can form an educated opinion.57
The Court indicated it believes that all expenditure limits infringe on First Amendment freedoms and that no corruption risks would stem from their removal.58 The expenditure limits were judged unconstitutional. The justices did uphold the contribution limits, but as we shall see, the aggregate limit, which set a cap for the annual amount that can be given (as opposed to the amount that can be given directly to each candidate), was later struck down.
The Bipartisan Campaign Reform Act of 2002 (BCRA) had a provision that prevented corporations, non-profits, and labor unions from issuing electioneering communications sixty days before a general election or thirty days before a primary. This act, coupled with prior legislation that banned direct political advocacy by corporations, was overturned by the Supreme Court’s 2010 decision in Citizens United, which ruled that corporations can engage in direct political advocacy and should face no limitations on their campaign contributions.59
In 2014, the Supreme Court in McCutcheon v. Federal Election Commission struck down the aggregate limits on campaign contributions to all candidates set by the FECA. The Court ruled that the limits were unconstitutional and violated the First Amendment. As a result, there are no limits on the number of candidates to whom an individual may contribute.60
Various constitutional amendments have been proposed to address campaign finance regulation. However, in 1997 and in 2014, the Senate rejected proposed amendments to allow Congress to determine campaign spending limits in federal elections.61 The other avenue for an amendment to the Constitution, which relies on an introduction by two-thirds of the state legislatures, is a very hard row to hoe, and little progress has been made.
That almost all attempts to limit the flood of private monies into the hands of public officials have failed is evident in the continued growth of election expenditures. (They have grown increasingly quickly even if accounting for inflation and population growth.)62 In 1998, congressional races cost approximately $1.6 billion ($2.4 billion adjusted for inflation); by 2014, they cost $3.8 billion.63 While total money spent on the 2016 presidential election was slightly lower than during the prior two elections ($2.4 billion compared to $2.8 billion in 2008 and $2.6 billion in 2012), money spent on 2016 congressional races reached a new high, costing more than $4 billion.64
All this suggests the merit of focusing on what contributors can get rather than on what they can give. This does not mean that campaign contributions should not be regulated; rather, targeting unscrupulous benefits seems a much more promising approach for reformers. Limiting the Get has one other merit. Limiting the Give means limiting even those who do not seek special benefits, those who may support a candidate for philosophical or moral reasons. This is not the case if one limits only self-seeking benefits.
Transparency Is Woefully Insufficient
Courts have held that corruption can be deterred through transparency and disclosure requirements. In McCutcheon v. Federal Election Commission (2014), the Supreme Court stated that “disclosure of contributions minimizes the potential for abuse of the campaign finance system [and] . . . may also ‘deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.’”65
While often discussed as an alternative to regulation, transparency is, in effect, a form of government regulation. Unlike other forms of regulation, however, transparency has a major disadvantage: it assumes that the public has the requisite resources to interpret the findings and translate them into effective political action, above all in voting choices.66 Substantial behavioral economics research says otherwise: the public is unable to properly process and act on even simple information because of “wired in,” congenital, systematic cognitive biases.67 Numerous books, studies, and TV reports by 60 Minutes and Frontline, among others, have not convinced the public to grant high priority to campaign financing reforms.
Further, while in principle super PACs are required to disclose their contributions, many of their donors can remain anonymous. The Sunlight Foundation provides a revealing example: “In 2010, a super PAC that was active in one of that year’s marquee House races listed a single donor: a 501(c)(4) organization that does not have to disclose its donors. This is what is known among some campaign finance lawyers as ‘the Russian doll problem.’”68
The 501(c)(4) and 501(c)(6) organizations fall in the category of politically active non-profits, which can accept unlimited contributions and are typically under no obligation to disclose their contributors. In theory their political activity is limited, but in practice these limits are often unenforced. The prevalence of these organizations in federal elections has increased. They are considered to provide “dark money” because their funding sources are obscured.69 As part of the reforms here suggested, disclosure should be mandatory for all organizations that spend in one way or another on political campaigns.
Many super PACs also have misleading or vague names that make it impossible to know which interests they are seeking to promote. How is one to tell that Americans for Progressive Action was started by a Republican and never supported any Democrat or that American Bridge 21st Century supports Democrats, while America Rising supports Republicans?70
In Buckley, the Court did recognize that disclosure may not be sufficient to prevent corruption, stating that “Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption.”71 However, when Congress did act, the Court struck down practically all the limits Congress had set on making contributions.
The Ground for What Constitutes Bribery
The reforms here suggested entail treating as bribery any material campaign contributions that result in special benefits not available to others with the same attributes, unless the difference is relevant. For these reforms to be implemented, Congress or the Court needs to revisit the way quid pro quo is determined.72
In the 1999 Supreme Court case Sun-Diamond, an agricultural trade association was charged with giving illegal gifts to Michael Spy, secretary of the Department of Agriculture, in which Sun-Diamond’s member cooperatives had vested interests. Sun-Diamond objected to the charges because the indictment did not show a link between the gifts and the issues of interests. The Supreme Court agreed and held that “in order to establish a violation of 18 U.S.C. § 201(c)(1)(A), the Government must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given.”73 According to the Supreme Court, prosecuting federal bribery and gratuities required explicit proof of a quid pro quo arrangement.74
In a private meeting, a high-ranking official of the US Department of Justice pointed out that the department understands quid pro quo to have taken place only when the donor explicitly conditions the donation to some benefit. If a congressional committee is about to vote on whether to grant a special favor tailored to match only a single donor, and that donor indicates that he will make a major donation after the vote, or half before and half after, and members of the committee then vote in line with the interests of the donor, such practice does not qualify as quid pro quo under current law.
For the suggested reforms here outlined to be effective, the bar must be lowered for what classifies as quid pro quo. The Supreme Court’s very narrow interpretation of quid pro quo is precluding the prosecution of many corrupt acts. This interpretive trend must be overturned, either by Congress or the Court itself.
Under the current system, a lobbyist can visit a member of Congress on the eve of a vote on a bill that would grant his special interest group a multimillion-dollar benefit (in the case of oil companies, it could be measured in billions) and inform the member that his group just made a major donation to his election campaign (PAC or a related super PAC). The lobbyist could also state that his group is considering tripling this amount and that he will be back next week (after the vote) to let the member of Congress know the result of his group’s deliberations. By current law, such statements are not considered an attempt to bribe a public official because no quid pro quo was explicitly mentioned. That is, the US employs an extremely limited definition of quid pro quo. The definition should be expanded to account for benefits clearly favoring the interests of those who made contributions before or after the vote, within a defined period.
One may prefer other ways to stop what is, in effect, widespread, systematic legalized bribery. However, no one concerned about shoring up democracy, functional governance, and the common good—the agenda of the patriotic movement—can ignore the importance of curbing the ways private money floods into the hands of public officials.