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First Amendment: Speech

On Political Corruption

Lurking beneath the surface of all debates on campaign finance is a visceral revulsion over future leaders of state groveling for money. The process of fundraising is demeaning to any claim of a higher calling in public service and taints candidates, policies, donors, and anyone in proximity to this bleakest side of the electoral process. The intuition is that at some level money must be corrupting of the political process and that something must be done to limit the role of money in that process. In turn, and almost inescapably, the same logic appears to lead to the belief that less money is better than more money, and that successful reform must bring down the cost of modern electoral campaigning.

It is the logic of constricting the effects of money that has defined the modern era of campaign finance reform, an era that began after the Watergate scandals and is now completing its fourth decade. Time and again, the impetus behind the reform effort has been to depress the amount of money spent in campaigns and thereby limit the associated moral stain. So long as a stench attaches to money and by extension to those who seek to direct political outcomes with money, the cause of campaign finance reform takes the high road. If money be the root of all evil, reducing the amount of money in the system is the natural conclusion.

With these efforts at limitation comes the inevitable result that some speakers will be handicapped in expressing their views and that the total quantity of speech will be curtailed. This point is not really disputed by the reform camp, nor by the dissident wing of the Supreme Court. The oft-invoked claim that money is not speech, and the corollary claim of the rights of listeners not to be bombarded with excesses from one side of the debate, both assume a right to limit the propagation of certain views, presumably those that are overfunded or overexposed, or both. For Justice Stevens and a persistent minority on the Court, the claim that money is not speech lends constitutional cover to the search for a way to squeeze money out of politics. In turn, this attempt to restrain the amount of money in the system runs headlong not only into the teeth of the constitutional concern of the majority of the Court but also into the brute fact of the increased scale and complexity of campaigning for contested office.

The restrictive aspect of the reform agenda is ultimately both its strength and its constitutional liability. Constitutionally, the effort to limit the spending of political campaigns – which, if not directly speech, is certainly “speechy enough” – has occasioned a long line of losses for reform, with Citizens United v. FEC but the latest in an almost unbroken streak. Citizens United continues the troubled tradition of Buckley v. Valeo in drawing the divide between political contributions and expenditures. The former category gives rise to potential regulation in order to combat a poorly specified corruption of the political process – a concept to which I return below – while the latter is seen as within the domain of expressive liberties that the state may not seek to restrict.

Academic commentary has long had a field day with the core expenditures-versus-contributions rationale of Buckley. The system of limited contributions but unchecked expenditures runs afoul of the animating logic of the 1974 campaign finance amendments, and is in fact a regulatory structure created by the Court. No rational regulatory system would seek to limit the manner by which money is supplied to political campaigns, then leave unchecked the demand for that same money by leaving spending uncapped. In the meantime, majorities drawn from varying voting blocs on the Court have persistently rejected the Buckley divide between contributions and expenditures, with only a division among the Justices on how to overturn Buckley serving to shore up a frayed body of law. Whether framed as doctrinal incoherence or simply as a doctrinal approach that proved unworkable over time, the Court’s attempt to muddle through the difficult issue of money and politics has been subject to easy hits by critics. I confess to being a participant in looking at the failures of Court doctrine, all the while conceding in articles and the classroom just how intractable the problem seemed. Indeed, writing with Professor Pamela Karlan a decade ago, I concluded that not much could be done about the pull of finance in elections, such that the perverse “hydraulic” of money finding its outlet led many campaign finance reform efforts to backfire and empower the unaccountable tertiary actors (the political action committees (PACs), the 527s, and all the rest) at the expense of the candidates and parties who actually had to stand for election before We the People.

This Comment takes Citizens United as a launching point to revisit the central Buckley paradigm and examine what possibilities for reform remain to redress the vulnerabilities of democracy before the powers of the purse. Beginning with Buckley, the Court recognized that contributions had the unique potential to corrupt the political process. Revisiting the contribution process and the concept of corruption may yield a better handle on what should be the sources of concern in the financing of electoral campaigns. The approach taken here is to start by examining the competing concerns that tend to get glossed over by underspecified references to political corruption, then to see if the processes of financing campaigns can be addressed both to those concerns and to increasing the level of democratic engagement in politics. Specifically, this approach focuses on the mechanisms used to empower democratic participation in two ways: one by inducement, one by prohibition. Counterintuitively, the inducement looks to increase the amount of contributions to campaigns to alleviate some of the concerns over political corruption, while the prohibition seeks to bar those in a position to distort public policy – such as government contractors – from providing support to candidates’ campaigns. The argument rests heavily on the idea that the threat to democratic governance may come from the emergence of a “clientelist” relation between elected officials and those who seek to profit from relations to the state.

The inquiry begins in Part I with the contested terrain over the nature of political corruption. Once the Supreme Court announced in Buckley that the concern over corruption or even its appearance could justify limitations on money in politics, the race was on to fill the porous concept of corruption with every conceivable meaning advocates could muster. As with the elusive term “diversity” after Buckley’s contemporary, Regents of the University of California v. Bakke, a thin constitutional reed transformed the lexicon of political debate. Part II advances the argument that the corruption concern is really a concern with ensuring public – rather than private – outputs from the policymaking process. This reorientation toward corruption in the outputs of policymaking suggests effective solutions to address the financial vulnerabilities of democracy compatible with the Court’s strong constitutional stance in Citizens United, which are discussed in Part III.