On Political Corruption

On Political Corruption

Description

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 fund-raising is demeaning to any claim of a higher calling in public service and compromises candidates, policies, donors, and anyone in proximity to the 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. The same logic dictates 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 those who seek to direct political outcomes with money, the cause of campaign reform takes the high road. If money is the root of all evil, the logic runs inescapably to reducing the amount of money in the system. 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. For a persistent minority of justices on the U.S. Supreme 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, it is this attempt to restrain the amount of money in the system that 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. This restrictive aspect of the reform agenda is ultimately both its strength and its constitutional liability. Constitutionally, it is the efforts to limit the spending of political campaigns—if not directly speech, then certainly “speechy enough”—that have occasioned a long line of losses for reform efforts, with Citizens United but the last in an almost unbroken streak. In its approach to money and politics, Citizens United continues the troubled tradition of Buckley v. Valeo in drawing the divide between political contributions and expenditures. The former 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 the domain of expressive liberties that the state may not seek to restrict. Academic commentary has long had a field day with the core contributions-versus-expenditures rationale of Buckley. The division between a system that limits contributions but leaves expenditures unchecked runs afoul of the animating logic of the 1974 campaign finance amendments, and is in fact a regulatory structure created by the Court. Even persistent majorities of the Court have rejected the Buckley divide between contributions and expenditures, with only a divide over which way to topple Buckley serving to shore up a frayed body of law. Whether framed as the incoherence of doctrines or simply as a doctrinal approach that proved not workable over time, critics scored easy hits on the Court's attempt to muddle through the difficult issue of money and politics. I want to take Citizens United as a launching point to accept the Court's long-standing invitation to use the contribution side of the divide as a vehicle to shore up the vulnerabilities of democracy. My inquiry begins 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 that advocates could muster. As with the elusive term “diversity” after Buckley's contemporary, Bakke v. Board of Regents, a thin constitutional reed transformed the lexicon of political debate. My argument is that, by altering the corruption concern and moving it away from efforts to depress political expenditures, there may be some measures that both satisfy constitutional scrutiny and address the financial vulnerabilities of democracy. A reorientation toward corruption in the outputs of policymaking suggests effective solutions compatible with the Court's strong constitutional stance in Citizens United.

Source Publication

Money, Politics, and the Constitution: Beyond Citizens United

Source Editors/Authors

Monica Youn

Publication Date

2011

On Political Corruption

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