Saturday, April 5, 2014

Chief Justice Roberts and the Corruption of Money in Politics--Go Read Fishkin

Money in Politics

Money in politics has a corrupting influence.  It's a widely based perception.  Money buys access, influence, and control of our elected officials because in our modern day democracy elected officials are forced to raise money non-stop.  Legislators routinely vote on bills they do not understand or master.  They get away with this because their job is not to figure out what's in these bills and to master the nuances in order to properly judge their merits, and vote accordingly:  their job is to figure out who supports the bill, who opposes it, and how not to ruffle the feathers of important donors.  Normal constituents don't figure prominently in this calculus.

McCutcheon v. FEC disputes the Premise

Chief Justice Roberts, and Justices Alito, Scalia, Kennedy, and Thomas don't share the perception. In a most remarkable turn of phrase in McCutcheon v. Federal Election Commission (U.S. Supreme Court, April 2, 2014) Chief Justice Roberts dismissed any concern about the corrupting influence of money in politics. It's not corrupting, it's protected by the First Amendment, and it's at the heart of our democratic process, says Roberts:  
“Ingratiation and access  [by spending vast sums of money]. . . are not corruption.  They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns."   (slip op. at p.2)
"Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials." (p.39)
The right to participate in democracy through political contribution is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. 
At stake in McCutcheon was an upward limit of the Bipartisan Campaign Reform Act of 2002 whereby Congress limited to $123,200 the total aggregate amount that any individual could contribute to candidates and committees during any two year election cycle.  The court struck this limitation on spending as unconstitutional.

 The problem with the majority decision is that it takes an extremely limited view of "corruption" and money in politics.  It's not corruption unless there is an explicit quid pro quo:  an official act in exchange for money.  Seeking favor, access, and influence is not corruption, ever, therefore it cannot be regulated.  In thus holding, the court overruled an earlier unanimous Supreme Court holding, Buckley v. Valeo (1976), which held that aggregate spending limits were constitutional and which recognized the corrupting power of seeking favor, access, and influence through large donations to elected officials.

Joey Fishkin and Why the Money is Corrupting of the Political Process

The dissent, in a passionate, if less than completely clear opinion, makes the case why the Supreme Court should not turn its back on the corrupting influence of large donations in politics, and why this is an appropriate area for Congressional regulation.  In a brilliant exposition, University of Texas law professor, Joey Fishkin, explains.

Who is a Constituent:
In yesterday’s big campaign finance case, McCutcheon v. FEC, Chief Justice Roberts doubled down on a very narrow definition of corruption, one that calls most remaining campaign finance regulation into some doubt.  That was the most important thing that happened in McCutcheon.  However, the mostinteresting thing that happened in McCutcheon, to my eye, was something subtler, something having to do with the question in the title of this post ["Who is a Constituent"].
Fishkin repeats the quotes from the opinion, above, and asks us to look carefully at Roberts' use of the word "constituent."  Who are the "Constituents" of your Congressman or Congresswoman?
So here is the puzzle.  Who exactly does Chief Justice Roberts have in mind when he says “constituents”?   This is a legal case, so most obvious answer is the plaintiff, Shaun McCutcheon.  After all, that’s whose rights the case is about. But McCutcheon, like most donors, supports candidates in places other than where he lives.  (Lots of places, in fact.  That’s how he ran up against the aggregate contribution limits.)  So when Chief Justice Roberts speaks favorably about “ingratiation and access” by campaign donors, calling it a “central feature of democracy” that “constituents” support candidates they agree with—and candidates ought in turn to be “cognizant of and responsive to” the concerns of such “constituents,”  who is he talking about?
Fishkin suggests that the key to why large donations are corrupting of the political process have something to do with the fact that when a wealthy person gives large sums of money to Congressmen and Congresswomen all over the country, this donor and his or her money become a "Constituent" of politicians not in the donor's district.  The Congressman who receives the donation is suddenly beholden to this outside influence, with interests that are different and may be competing with the interests of the real constituents in the Congressman's District.  That's why it's corrupting.  That's why Congress may want to impose limits on how many campaigns you can contribute to, a point that was completely lost on Roberts.

Read Fishkin.  It's a great post.

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