Will Disclosure Save Us From the Corrupting Influence of Big Money?

There is going to be a lot of speculation about how the Supreme Court's decision in McCutcheon v. FEC to eliminate the aggregate limits on campaign contributions will affect the influence of big money in politics. That's because it serves to make an already complex system a little more complex, and there are multiple ways the decision could matter; on the other hand, it might make no difference at all. For the moment, I want to consider the role of disclosure, because I think it's going to become increasingly important in the near future, particularly if the Court goes all the way and eliminates all contribution limits. It should be said that in this case, they could have done that, but decided not to (only Clarence Thomas, in a concurring opinion, advocated eliminating all limits). But there is some reason to believe that the conservatives on the Court will go there eventually. And if they do, disclosure is going to be their justification: that as long as we know who's giving money to candidates, the risk of corruption will be small. That might strike you as reasonable, or it might strike you as absurd (you think the banks aren't getting their money's worth when they donate to every member of the committees that oversee them?), but it will be an argument that conservatives are likely to be making with increasing frequency in the coming years as they try to remove the last bricks from the crumbling edifice of campaign finance restrictions.

In his dissent in McCutcheon, Stephen Breyer wrote that "in the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates." He then ran through some scenarios—perfectly legal, if a little complicated—by which they could do that. But as Seth Masket argues, it isn't like it's hard at the moment for your average billionaire to give gobs of money to his favored candidate:

Donors want to donate. Candidates want to receive. If you erect a wall in between them, money will typically find a way around it. In the vast majority of cases, this is not a criminal enterprise. It simply means that once a donor reaches her contribution limit, she will find another way to get the money to candidates who need it. That could mean contributing to a Super PAC, a 503(c)(4), an independent expenditure committee, etc. That money can still be put to use helping out candidates, but the flow of the money is much less direct and much less transparent.

It's true that the contributions we're talking about here will be easier to track than 503(c)(4) contributions, which don't have to be disclosed. But disclosure—not just how it works, but whether it works in stopping corruption—is something we're going to have to do a lot more thinking about in the coming years. Because as I said, if the Roberts Court takes the final step and declares even the limits on direct contributions to candidates to be unconstitutional, they will almost certainly justify it by saying that disclosure is sufficient to forestall corruption. It's OK if the Koch brothers write Mitch McConnell a check for $20 million for his next campaign, because we'll all know about it, and we'll keep our eagle eyes on McConnell to make sure he isn't doing the Kochs' bidding.

Consider what John Roberts wrote in this passage of his decision (and keep in mind that when he says "speech" he means money): "Disclosure requirements may burden speech, but they often represent a less restrictive alternative to flat bans on certain types or quantities of speech. Particularly with modern technology, disclosure now offers more robust protections against corruption than it did when Buckley was decided." He's right in a narrow sense about technology. In the mid-nineties I did a project for an organization focusing on campaign finance reform, and back then you had to actually go down to Federal Election Committee headquarters and look through microfilms one by one to see who had contributed to whom. Today the FEC's web site may still be among the government's worst, but there are people like the Center for Responsive Politics who put the data together for easy searching.

But does the fact that the information is out there mean there's actual accountability and that donors aren't wielding undue influence? It's a complicated question to answer, and there are many ways to look at the problem. But we should probably start thinking about it now.

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