{"id":2674,"date":"2011-08-11T12:30:44","date_gmt":"2011-08-11T16:30:44","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=2674"},"modified":"2016-11-16T20:41:19","modified_gmt":"2016-11-17T01:41:19","slug":"in-their-own-words-campaign-finance-and-corruption","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/in-their-own-words-campaign-finance-and-corruption\/","title":{"rendered":"In Their Own Words – Campaign Finance and Corruption"},"content":{"rendered":"

Each day this week, Amicus will feature an editorial post written by one of CRCL\u2019s new General Board members.\u00a0 Today\u2019s post discusses the Roberts Court’s approach to campaign finance.<\/em><\/p>\n

As Justice Stevens (ret.) observed in his dissent in Citizens United<\/em>, the Roberts Court\u2019s laissez-faire<\/em> approach to campaign finance regulation is premised on an exceedingly narrow (as Justice Stevens put it, \u201ccrabbed\u201d) conception of the \u201ccorruption\u201d interest that the Court has recognized <\/em>previously: according to the Roberts Court, the only form of \u201ccorruption\u201d that the Government has a legitimate interest in seeking to prevent through campaign finance regulation is quid pro quo<\/em> corruption, i.e. the trading of cash for votes.\u00a0 By limiting the \u201ccorruption\u201d interest in this way, the Roberts Court has thus been able to argue that any threat of undue influence can be satisfactorily addressed through caps on individual donations to candidates (after all, what Congressperson is going to sell her vote for $2,000?).\u00a0 As a result, the \u201ccorruption\u201d interest appeared to have lost most, if not all, of its critical force after Citizens United<\/em>.<\/p>\n

Fastforwarding to its most recent campaign finance decision in Arizona Free Enterprise Club\u2019s Freedom Club PAC v. Bennett<\/em>, the Roberts Court reasserted its argument that individual donation caps are sufficient to prevent the exchange of cash for votes,\u00a0 thereby sweeping aside once again the position that a government (in this case, the state of Arizona) could predicate a robust campaign finance regulatory regime on its interest in preventing \u201ccorruption\u201d (to be clear,\u00a0 counsel for the appellees asserted numerous other arguments in defense of the regulation at issue, none of which I address here).\u00a0 Fortunately, embedded in her otherwise feisty and rhetorically satisfying dissent, Justice Kagan may have planted the seed for an effective rebuttal to the Roberts Court\u2019s seemingly tidy argument, even while granting its basic (and, as Justice Stevens argued so persuasively, flawed) premise: even if one accepts that the Government has only a legitimate interest in regulating quid pro quo<\/em> corruption, Justice Kagan argued, it does not follow from this that simple caps on donations to candidates will suffice to satisfy that interest.\u00a0 The reason that this is so, Justice Kagan went on, is that the combination of caps on individual donations and the ever-increasing cost of financing successful political campaigns has led to an increasing reliance by candidates on so-called \u201cbundlers,\u201d i.e. individuals who collect donations on a candidates behalf, sometimes hundreds of thousands of dollars or more for the campaign.\u00a0 To echo the Washington Post, \u201ccandidates are as indebted to the $1 million bundler as they are to the $1 million check writer.\u201d<\/a>\u00a0 As such, Justice Kagan reasoned that \u201cdependence\u201d on bundlers poses just as much of a threat of \u201ccorruption\u201d (even the narrow, quid pro quo<\/em> variety) as does dependence on large donors.<\/p>\n

While Justice Kagan refrained from drawing them out, the implications of her observation should be obvious: insofar as competitive candidates already spend more time fundraising than any sensible democracy would allow, the fact of ever-increasing campaign costs requires that those candidates depend on someone<\/em> to provide large dollar donations (bundled or otherwise) in order to finance their campaigns, someone<\/em> who, in turn, will have a degree of influence over those candidates sufficient to give rise to a threat of \u201ccorruption,\u201d no matter how narrowly defined.\u00a0 However, once one recognizes that the threat of \u201ccorruption\u201d is the necessary product of candidates needing large sums of cash to come from somewhere<\/em>, one can quickly infer that campaign finance regulations beyond mere caps on donations (be they from individuals or bundlers) might easily be predicated on even the overly narrow conception of the \u201ccorruption\u201d interest endorsed by the Roberts Court.<\/strong><\/p>\n

\"\"<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

According to the Roberts Court, the only form of \u201ccorruption\u201d that the Government has a legitimate interest in seeking to prevent through campaign finance regulation is quid pro quo corruption, i.e. the trading of cash for votes. By limiting the \u201ccorruption\u201d interest in this way, the Roberts Court has thus been able to argue that any threat of undue influence can be satisfactorily addressed through caps on individual donations to candidates. As a result, the \u201ccorruption\u201d interest appeared to have lost most, if not all, of its critical force after Citizens United.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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