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. (1) 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, (2) 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" (3)--has occasioned a long line of losses for reform, (4) with Citizens United v. FEC (5) but the latest in an almost unbroken streak. Citizens United continues the troubled tradition of Buckley v. Valeo (6) 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 (7) runs afoul of the animating logic of the 1974 campaign finance amendments, (8) 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. (9) 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. …