Each day this week, Amicus will feature an editorial post written by one of CRCL’s new General Board members. Today’s post discusses the Roberts Court’s approach to campaign finance.
As Justice Stevens (ret.) observed in his dissent in Citizens United, the Roberts Court’s laissez-faire approach to campaign finance regulation is premised on an exceedingly narrow (as Justice Stevens put it, “crabbed”) conception of the “corruption” interest that the Court has recognized previously: according to the Roberts Court, the only form of “corruption” 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 “corruption” 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?). As a result, the “corruption” interest appeared to have lost most, if not all, of its critical force after Citizens United.
Fastforwarding to its most recent campaign finance decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Roberts Court reasserted its argument that individual donation caps are sufficient to prevent the exchange of cash for votes, 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 “corruption” (to be clear, counsel for the appellees asserted numerous other arguments in defense of the regulation at issue, none of which I address here). 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’s 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 corruption, Justice Kagan argued, it does not follow from this that simple caps on donations to candidates will suffice to satisfy that interest. 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 “bundlers,” i.e. individuals who collect donations on a candidates behalf, sometimes hundreds of thousands of dollars or more for the campaign. To echo the Washington Post, “candidates are as indebted to the $1 million bundler as they are to the $1 million check writer.” As such, Justice Kagan reasoned that “dependence” on bundlers poses just as much of a threat of “corruption” (even the narrow, quid pro quo variety) as does dependence on large donors.
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 to provide large dollar donations (bundled or otherwise) in order to finance their campaigns, someone who, in turn, will have a degree of influence over those candidates sufficient to give rise to a threat of “corruption,” no matter how narrowly defined. However, once one recognizes that the threat of “corruption” is the necessary product of candidates needing large sums of cash to come from somewhere, 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 “corruption” interest endorsed by the Roberts Court.