On Oct. 8, the U.S. Supreme Court will hear oral arguments in McCutcheon v. Federal Election Commission, a constitutional challenge to the limits on how much an individual can contribute to independent committees during a two-year election cycle.
Pundits are atremble. “We don’t need the Court to do any more damage to our democracy,” says one commentator. The decision could be a “body blow” to “Americans’ faith in government,” warns another. The League of Women Voters sums up the general tenor of the concern: “More money, more influence.”
Before we consider whether there’s anything to worry about, however, let’s take a moment to work out what people are worried about. In recent years, candidates -- especially for congressional office -- have figured out that they can get around contribution limits by soliciting donations to political parties. The parties, in an agony of gratitude, can then spend that money on the candidate. The rules that are being challenged restrict how much an individual can give to political parties and other “noncandidate committees,” as the FEC calls them.
How much money are we talking about? According to Fred Wertheimer of Democracy 21, whose self-described mission is “to eliminate the undue influence of big money in American politics,” an individual could contribute “a single check to a national party of $1,194,000 for a two-year election cycle.” He adds: “The national party in turn could spend the entire million dollar-plus donation to support the officeholder who solicited the donation from the contributor.”
It’s easy to see, then, why McCutcheon is being widely decried as the “next Citizens United.”
I will admit to belonging to that tiny minority of legal scholars who believe that the Supreme Court’s 2010 ruling in Citizens United v. FEC was correct. But, right or wrong, the decision gets blamed for a lot of things that aren’t its fault.
For example, commentators regularly assert that the decision has led to nonprofits organized under section 501(c)(4) of the tax code spending millions trying to influence elections without disclosing their donors. But this problem (if it is a problem) has nothing whatsoever to do with Citizens United: The 501(c)(4) groups that strike fear into the hearts of reformers operate the same way now as they have in the past. What Citizens United has done is allow corporations and labor unions to give money directly to 501(c)(4) groups.
Are politicians beholden to their contributors? The notion appeals to common sense, but empirical evidence has proved elusive. Indeed, whatever our prejudices might suggest, reviews of the literature lend, at best, tepid support to the proposition that legislators vote according to the will of their largest contributors. On the other hand, one study suggests that corporations whose executives give lots of money strongly outperform the market (although we don’t yet know why).
Whatever the relationship between campaign contributions and influence, if we’re worried about money in politics, we’re closing the barn door a little late. The price tag for the 2012 election, from the presidential contest on down, was north of $7 billion -- probably quite a ways north. President Barack Obama’s re-election campaign alone raised an estimated $715 million.
The question isn’t whether money in politics is scary, but whether some money is scarier than other money. It’s not obvious to me why money spent by a corporation that sells oil or software is more dangerous to democracy than money spent by a corporation that sells advertising -- which is essentially what media companies do.
But I freely admit to being the sort of old-fashioned absolutist who believes that the cure for bad speech is good speech and trembles at the idea of a bureaucracy assigned to sort out which is which. One can see all the risks of particular kinds of speech -- including unlimited corporate speech -- without being convinced that the remedy is to get the government into the speech-regulation business.
Still, if the influence of money in politics is genuinely a problem, let’s take a hard look at what campaign contributions actually buy. The image that bedevils reformers is the rich contributor calling up and demanding favors. But there are also people who don’t even have to call.
No matter which party is in power, the White House, federal agencies, even the courts are filled with people -- or their families and friends -- who give money to the winning side. If that’s not influence-buying, it’s hard to say what is.
If we truly want to reduce the role of money in politics, this wouldn’t be a bad place to start. Surely we’re better off with an administration filled with the best people available, rather than with those who raised lots of money. Thus, in the spirit of campaign-finance reform, I offer as a modest proposal the following legislation:
“No person who in the past five years has contributed money to any political party, candidate for electoral office, political action committee, or other organization or device that supports or opposes candidates for electoral office, or who has knowingly caused or advised or persuaded others to make such contributions, may be appointed to any office of trust and profit under the United States.”
There it is, clean and simple. You’re welcome to contribute to the candidate of your choice, and no doubt your money will buy you a degree of access, but the one thing it won’t buy you is a government job. You won’t be down the hall from the winner. You’ll have to try to get the chief of staff on the phone like everybody else.
We might, of course, want to add additional clauses -- say, to prevent immediate family members of contributors from riding the money into the administration. We probably can’t prevent the contributors from, say, recommending their friends, but we’ll have gone a long way toward cleaning up the most obviously corrupting influence of money in our politics. A lot of people, including very rich bundlers, will now think twice about giving money in the first place.
If you think the statute would be unconstitutional, I have two words for you: Hatch Act. That law, styled as a limit on corruption, prevents federal employees from participating in certain political activities. My proposal prevents those who participate in certain political activities from becoming federal employees.
If you don’t like my proposal, let’s take a moment to ask what might be wrong with it. Consider: Why do people give to candidates in the first place? The evidence is that they do so not to purchase influence but because they like the candidate’s positions. Their contributions are expressive in nature.
But even if political contributions are a form of expression, it remains true that large donors are often rewarded with important positions. The lower court in the McCutcheon case warned that if the contribution limits were removed, a candidate who wins office based on such large contributions will “know precisely where to lay the wreath of gratitude.” Actually, the winners know that already, and it’s reflected in their appointments. They need only look down the hall.
(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama” and the novel “The Impeachment of Abraham Lincoln.” Follow him on Twitter at @StepCarter.)
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