There are three big winners from the recent U.S. Supreme Court decisions that Senator John McCain says might “dismantle entirely” campaign-finance laws: wealthy interests, greedy politicians and investigative journalists.
The decisions, culminating in another loosening of restrictions last month, were crafted by Chief Justice John Roberts and a slim majority. They essentially contend that campaign-finance limitations impede speech and that the system profits from more money. The consequence will be record sums of cash in this year’s midterm races, and the 2016 presidential year will far exceed the $7 billion spent in the 2012 election.
Wealthy individuals, corporations and unions will spend unlimited sums to affect elections, and rich donors can now give huge amounts to political party committees.
All this cash sloshing around seems certain to produce the mother of all political scandals. Why? It always does. The initial ban on corporate contributions more than a century ago was in response to bribes; the contemporary reforms grew out of Watergate, when excessive money led to corruption and criminality.
The definition of corruption was hotly debated on the court by Roberts and Justice Stephen Breyer. The chief justice, who opposes most campaign-finance restrictions, offered a narrow interpretation: political corruption is bribery only, a direct exchange of an official act for money.
There are contemporary examples of clear-cut quid pro quo going back to the dairy industry in Watergate and, more recently, involving a congressman caught with cash stashed in his refrigerator. Such cases are rare and almost always stem from a government sting operation or a high-powered prosecutor with subpoena powers.
Breyer takes a much broader view, arguing that the obvious appearance of corruption, not just quid-pro-quo bribery, poisons the political process and public trust. His definition includes “the privileged access to and the pernicious influence upon elected representatives.” That, he says, makes campaign-finance limits justified.
Breyer observed that there has been recognition by Congress and, until recently, by the Supreme Court, that this involves a vital governmental interest.
This is one of those not infrequent occasions when the high court could have used Sandra Day O’Connor, the last justice who actually ran for political office and who retired in 2006.
Her opinions and observations might have explained why the court’s majority view is out of touch with political reality. Politicians know the source of the money — the secret donors today have a way of making sure they do — as well as the agenda of those givers.
Special interests work both sides of the political aisle. Some of the most persuasive voices against the influence of big money are prominent Republicans.
“Who can seriously contend that a $100,000 donation does not alter the way one thinks about and possibly votes on an issue?” said former Republican Senator Alan Simpson.
Bill Brock, one of the most successful chairmen of the Republican National Committee, has said the problem goes well beyond bribery: “The appearance of corruption is corrosive and is undermining our democracy.”
Among the remaining elements of the post-Watergate reforms are limits on direct contributions to candidates for federal office. In the current cycle, an individual cannot give more than $2,600 to a candidate in each of the primary and the general elections, with a ceiling of $5,200.
Some activists and a few Supreme Court justices would like to target these limits. Under the Roberts rationale, they seem like a natural quarry.
That would have a big impact. Politicians appreciate — and often reward — rich interests that spend money on their behalf. Nothing, however, is as valuable as money a candidate controls. If a big donor could directly hand over huge amounts to a candidate, the change to the political dynamics would be even greater than those wrought by the other sweeping rulings. Quid pro quo would be virtually irrelevant.
Few politicians understood the nexus of money and politics better than the late Senator Russell B. Long of Louisiana, where both are a religion: “The distinction between a large campaign contribution and a bribe,” he said, “is almost a hairline’s difference.”