Casino Owner’s Gingrich Gift Shreds Court’s Logic: Noah Feldman
For purely parochial reasons, I like to keep tabs on Jewish boys from around Boston who have made good. Stephen Greenblatt, the Shakespeare scholar and award- winning author; Bobby Sager, the global philanthropist with a TV show based on his adventures; Mike Bloomberg (you may have heard of him); and now … Sheldon Adelson, the casino billionaire who is bankrolling the Newt Gingrich campaign in South Carolina.
There’s nothing new about wealthy people getting involved in politics. George Soros very publicly gave money to the Democratic Party to beat George W. Bush. The Koch brothers finance a wide range of conservative political causes. And Mayor Bloomberg has paid for his own campaigns. What is new -- indeed, perhaps unprecedented in the era since electoral reform took root in the U.S. -- is a single magnate in effect keeping alive a candidate who is not either himself or a close family member.
This new twist on plutocracy is the direct result of the Supreme Court’s decision in the Citizens United case. After the 2010 decision, we all knew that corporations would be allowed to make unlimited donations to organizations that spend money “independently” of political campaigns. But only a few close observers noticed that, in justifying its decision, the Supreme Court also said that there was no danger of “the appearance of corruption” so long as expenditures were independent of the campaign.
Perceptions of Corruption
This was the loophole to end all loopholes. The Supreme Court was putting its legal holding in the form of an empirical claim about the way people’s perceptions of corruption work. It followed that not only corporations but individuals could make unlimited contributions to what have come to be called super- PACs without creating a legally cognizable appearance of corruption.
The Supreme Court is infallible -- because, as Justice Robert H. Jackson famously said, its word is final. If you or I say something is true that later turns out to be false, we are just wrong. When the Supreme Court is wrong about the way the world works, the world has to change to accommodate it, not the other way around.
What, after all, does political corruption mean? Presumably that money spent on a candidate’s behalf will lead to undue influence being granted to the donor. It is literally inconceivable that Sheldon Adelson’s expenditures to Gingrich’s super-PAC would not give him undue influence in the highly unlikely event that Gingrich is ever elected to anything. Does anyone really believe that a highly successful businessman deeply committed to a range of public issues would spend $5 million out of sheer friendship? To believe this would be to believe in “I love you, man” democracy.
As for the appearance of corruption, it is particularly extraordinary that Adelson’s contribution was touted by the Gingrich campaign and heavily covered by the press. Gingrich wanted the public to know that someone rich was still committed to his campaign, and that he would, as a result, be able to buy significant advertising time in South Carolina. In this sense, appearance was everything.
Yes, Gingrich might point to other one-horse super-PACs, such as that funded by Jon Huntsman’s father. But when it comes to “appearances,” we assume that a person’s close family members want the best for him altruistically -- and already have a great deal of influence on the candidate. As with self-funded campaigns, we admit that wealth is having a major influence; but we console ourselves that the wealth is not corrupting in the ordinary sense of the word. In theory, at least, I can’t buy myself.
Yet the way the Gingrich campaign highlighted Adelson’s donation also should demonstrate once and for all how preposterous it is to think that super-PAC expenditures are independent. In trumpeting Abelson’s donation, Gingrich did everything he could to give the impression that it was to be seen as part of his campaign, not independent of it.
There is no mystery to how coordination works between a candidate’s operation and supposedly independent operators. In the thick of the campaign, any super-PAC worthy of the name can just observe the ad-buys of the official campaign and act accordingly. It can listen to the candidate’s public statements about his strategy, then implement. Independence under these circumstances is not a myth -- it is a lie.
The question thus is not whether PACs have unseemly influence, but whether anyone cares if the public understands that, under the new rules, rich people can buy candidates? It depends whether we think of elections as a game, complete with play-by-play and color analysis, or whether we are naive and idealistic enough to think that elections play a crucial role in making the exercise of public power legitimate in the eyes of the voters.
There’s little doubt on which side of this divide the news media lies. Press coverage of the Adelson donation barely raised an eyebrow about the structure of the deal. The most daring coverage commented that the source of Adelson’s wealth -- gambling venues in Las Vegas and elsewhere -- might trouble some values voters in South Carolina. No one in the mainstream press, or no one that I could find, asked what might be in it for Adelson down the road.
Not everyone has gone this far. Late last year, the Montana Supreme Court upheld a century-old state law banning political contributions by corporations. The law is a relic of progressive reformers’ efforts to defeat the old plutocracy, in which copper barons more or less ran the affairs of the mining state. The bad old days are not quite back yet. But then, the Supreme Court still hasn’t gotten its hands on the Montana decision.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
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