What does it mean to corrupt an elected official?
A coal executive walks into a member of Congress's office with a $100,000 check in hand and says, "I will hand you this check if, and only if, you vote against any fracking permits on federal land-it's bad for the local water supply, and besides I don't need the competition." The Representative accepts the check and then votes "nay" when the time comes. Is that corrupt? Most people would say yes-it's a paradigm case. After all, there is a quid pro quo exchange-you do this, I give you that.
Does it make a difference if that check goes into the Congressman's personal pocket, his campaign account, or to an allied Super PAC? Probably not to most people. The Congressman wants to be re-elected, probably more than he wants a Porsche, so either of the latter scenarios certainly provides a thing of value.
Now what if an environmental group walks into the same Congressman's office and says "We're here to talk to you about the upcoming vote on fracking permits on federal land. Fracking is bad for the environment. As you know we release an environmental scorecard each election year and we'll be scoring this particular vote. We also endorse candidates and we make those decisions in part based upon a representative's score. So, we hope you'll be with us on this vote, Congressman. Oh, and here's a list of the other issues we plan to score this year. It would be great if you're in the right place and we can advise our members in your district that you deserve to be re-elected."
Corruption? The quid pro quo is just as explicit-you vote this way, I give you a thing of value (i.e. our endorsement).
Some might say so, but most of us would probably say, "no-that's democracy." The environmental organization isn't buying a vote with money, rather it's organizing people and translating the power of an organized citizenry. In a nutshell, it's bargaining with votes.
So, what's the difference, in a democracy, between bargaining with money and bargaining with votes? Here's one thought: the difference is that-at least in theory-everyone has an equal vote to bargain with. Not so financial bargaining power.
What offends us about money-for-vote exchanges isn't the quid pro quo nature of it so much as that this type of bargaining doesn't take place on a level playing field. After all, it's only the prospect of contributing substantially more than fellow citizens that raises the prospect of undue influence. If we could all afford to give a Member of Congress a $100,000 bribe or campaign contribution, that check probably wouldn't buy much.
We have a gut-level sense that we should come to the political table as equals in America, and in a very real way our outrage over corruption can be traced to the ways in which bargaining for legislative success with money leaves us far short of this ideal. It violates our basic sense of political equality-birthed in the Declaration of Independence, baptized through a Civil War, nurtured through the Progressive Era, tested and matured through the Civil Rights battles of a prior generation.
The U.S. Supreme Court doesn't get this. For 40 years, multiple generations of justices have shaped and mis-shaped constitutional law, and especially First Amendment doctrine, by (at times willfully) ignoring this basic insight. And now, in the case McCutcheon v. FEC, a five-to-four majority has gutted another common sense limit on big money in politics for the same reason.
The consequences for our nation have been dire, and are about to get worse. This is the story of how the Court's fundamentally misguided approach to money in politics has helped create a vicious cycle, ultimately leading us into a new Inequality Era in which the income gap expands endlessly and the size of a citizen's wallet determines the strength of her voice-reinforcing trends that if left unchecked will spin us towards plutocracy. And, it's the story of how-while at first glance tangential-a new money in politics jurisprudence is perhaps our best hope for working families to get a fair shot at economic security.
The Political Roots of Economic Inequality
The striking increase in economic inequality and accompanying decline in class mobility in the United States since the 1970s has been well-documented. The U.S. is now the single most unequal nation in the "developed world" with respect to income, and has fallen behind France and Pakistan, among others, when it comes to economic mobility. Economist Emmanuel Saez reports that between 2009 and 2011 the real income of 99 percent of Americans shrank by 0.4 percent, but the top one percent saw gains of 11.2 percent-in other words the top 1 percent experienced 121 percent of the income gains in the first two years of recovery from the Great Recession. The bottom line is that the poor in the U.S. gaze at their wealthier compatriots across a huge and widening chasm, with scant chance of ever crossing it themselves.
The political class is starting to notice, which is heartening even if long overdue. President Obama made a much-publicized speech on economic inequality in December and has signaled his intention to focus much of the remainder of his administration grappling with it. Bill DeBlasio swept to a landslide victory in New York's mayor's race on a message about "two New Yorks". And, Elizabeth Warren has, of course, become a hero to the progressive left by focusing on kitchen table economic issues.
This is important because staggering inequality is no accident of history or inevitable result of global economic forces. Rather, as Jacob Hacker and Paul Pierson documented extensively in their 2010 book Winner Take All Politics, a string of government policies enacted (or avoided) over the past few decades have brought us to where we are today: lower marginal tax rates, weak rules governing the right to form a union, repeal of basic regulations on capital markets, lack of rules governing executive pay. To this list, one might add the declining real value of the minimum wage, receding per-pupil investment in higher education, tax loopholes, and direct subsidies benefitting large corporations at the expense of small businesses.
This reality raises a profound question. Why, in a democracy-where each citizen in theory has equal voting power, and where votes are the ultimate arbiter of who ascends to political power-would a government comprised of elected officials craft economic policies that cater to the interests of a small minority and foster rather than combat economic inequality?
The answer is simple and intuitive, but some pioneering recent political science research has put the details in starker relief than ever before. The bottom line: the wealthy prefer policies that make them even richer (often by stifling mobility and security for those lower down the ladder), and government responds almost exclusively to their preferences. He who pays the piper calls the tune.
Differing preferences are hardly surprising. The wealthy, after all, do not live or work like typical members of the general public, so why should they think like the rest of us? And, in a 2013 study called Democracy and the Policy Preferences of Wealthy Americans, political scientists confirmed that the policy preferences of the very rich differ substantially from those of the general public-especially on key questions about how to structure the economy. The wealthy prefer deficit reduction to job creation, and are more adverse to taxes and regulations. Nearly twice the percentage of the public (78 percent) than the wealthy (40 percent) support a minimum wage "high enough so that no family with a full time worker falls below the official poverty line." Other studies of the merely affluent confirm that the divergence in preferences over the economy does not apply only to the very rich.
This would not be cause for concern if the economic elite's influence on public policy accorded with their numbers. The top one percent-or one tenth of one percent-may desire different outcomes than the broad public; but by definition there are not very many people in this cadre, and so they would not be able to achieve their desired ends without convincing a large number of their fellow citizens of the wisdom of their preferences. This is how we would hope a democracy-characterized by a rough form of political equality consistent with the principle of one person, one vote-would operate.
Of course, it will shock no one that in fact the wealthy are able to exert disproportionate influence on the political process in the U.S. But the degree of disparity of influence that can be documented in black and white may surprise even some of the most seasoned political observers.
In a landmark 2012 study called Affluence and Influence, Princeton political scientist Martin Gilens set out to measure the relationship between Americans' preferences and actual policy outcomes across the income spectrum. What he found is deeply troubling.
Government responsiveness is strongly tilted towards the most affluent among us, and average Americans have staggeringly little impact on policy. Tellingly, when the preferences of the wealthiest 10 percent of Americans conflict with those of the rest of the population, the 10 percent trumps the 90 percent.
And, just as the sharpest break in preferences occurs on economic policy, the same goes for responsiveness. It appears our elected representatives listen to the rich much more than the rest of us when it comes to the role the government should or shouldn't play in shaping a fair economy. In this light it's not shocking that Washington has been obsessed with reducing deficits in recent years while the rest of the country has consistently prioritized putting their neighbors back to work.
The dominance of the wealthy has been getting worse over time, which suggests that government responsiveness to the wealthy is not a constant (and some would say inevitable) state, but rather is itself responsive to particular policy or economic conditions.
Gilens's exhaustive study leads him to conclude that "[t]he concentration of political influence among Americans at the top of the income distribution is incompatible with the core democratic principle of political equality," and "[t]he patterns of responsiveness found in previous chapters often correspond more closely to a plutocracy than to a democracy." Strong words from a sober academic, not a talking head or strident activist.
Why, exactly, do the wealthy have so much influence? One answer is that wealthier Americans are much more active citizens, as reflected in voter registration and turnout rates, membership in civic organizations, and more. But, basic math dictates that even large differences in voting rates and other forms of civic participation would not likely, on their own, lead directly to the extreme differential in responsiveness described above-there just aren't enough rich people.
It is when the wealthy make use of their greatest comparative advantage, by breaking out their checkbooks, that they can multiply their influence in virtually unlimited ways. It is the role of money in contemporary American politics that, more than any other single factor, drives government's differential and undemocratic responsiveness to the wealthy.
Simply put, our permissive campaign finance system allows a tiny number of wealthy donors to set the agendas in Washington and state capitols across the country. Roughly speaking, they do this in three ways.
First, rich donors act as gatekeepers, determining who runs for office in the first place, long before voters have their say at the polls. Is it a coincidence that we have plenty of lawyers and business owners in Congress, but hardly any teachers or electricians? It helps to have rich friends and associates to get your campaign off the ground.
Next, the donor class shapes candidates views as aspiring officeholders spend an inordinate amount of time with a tiny (rich) slice of the country while on the campaign trail (or, more accurately, while in a call room). Consider that 2012 U.S. Senate candidates raised 64 percent of their funds in contributions of at least $1,000, from just 0.04 percent of the population, and you'll have a sense of exactly who candidates are talking to. "Every night I would lock myself in a room with a bag of chips and some strong coffee and make my calls, homing in on people who could ideally give me at least $500 or $1000 or more," says Current Common Cause President Miles Rapoport of his 1998 run for Congress. "And, when I was talking with these potential donors I found that their problems and concerns weren't the same as the majority of folks I was looking to represent in Congress… I wasn't changing my positions, exactly, but there was definitely a shift in emphasis, and I could feel myself shifting as I spent more and more time talking to a very narrow set of wealthy donors."
Finally, big donors give their favored candidates the best chance to win. Money doesn't always carry the day, but ask any candidate, consultant, or party recruiter and she'll tell you it certainly helps. The biggest spending candidate routinely wins 80-90 percent of congressional races. Outside spending complicates the picture, but doesn't change the fundamental math: if you want to give yourself the best possible shot to win you're going to do everything possible to keep the campaign cash flowing in the door and the ads up on TV.
Outside spending fueled by unlimited contributions in the wake of Citizens United has also greatly increased the share of campaign spending by the super wealthy. In 2012, 28 percent of all disclosed political contributions came from fewer than 32,000 people-who the Sunlight Foundation calls the "political one percent of the one percent."
In addition, the wealthy (often corporations) spend billions on lobbying to influence officials once they're in office, paying for relationships, access, and a sympathetic ear when national policy affects the bottom line.
All this spending fuels the vicious cycle mentioned above: the wealthy pour money into politics; elected officials who depend upon their largess write economic rules that cement the status of economic incumbents; the already-haves become the have-much-mores; and in turn reward the "public servants" who have tilted the playing field in their favor.
Americans have noticed, and are working to break and reverse the cycle. But there are some obstacles in our path.
The Supremes
The story outlined above is, fundamentally, about the uneasy relationship between the representative democracy the founders designed and the (moderated) capitalism that has evolved to complement it. Our twin commitments to democracy and capitalism leave most Americans with the general sense that every citizen has an equal right to participate in political life, but not necessarily the right to possess an equal number of dollars or widgets. We're tolerating a lot of inequality in our economy right now; but most of us don't think this should spill over into our political life.
Without proper protections, however, this is exactly what happens. Those who are successful (or simply lucky) in the economic sphere can translate their economic might directly into political power.
So, robust rules governing the use of money in politics are our best hope for protecting the primacy-and legitimacy-of our democracy. These rules are the only way to ensure that (perhaps legitimate) inequalities in the economic sphere don't become unwarranted disparities in political power. It is how we should make the principle of one person, one vote come alive.
This is where the Supreme Court enters the picture.
The American people have long recognized that in order to provide working families a fair shot at upward mobility and basic economic security, democracy must write the rules for capitalism, not the other way around. That's why Progressive-era reformers didn't just pursue wage and hour laws, but also protections against corporate dominance of politics. Theodore Roosevelt said, "[t]here can be no effective control of corporations while their political activity remains." And since then the People have passed many laws intended to rein in corporations and wealthy individuals-through their elected representatives, or directly through the ballot initiative process.
But, the Supreme Court has, time and again, stepped in to eviscerate common-sense rules intended to prevent wealthy interests from translating economic might directly into political power. Like widening economic inequality, this trend took flight in the 1970s.
In 1976's Buckley v. Valeo-considered the seminal campaign finance case-the Court struck campaign spending limits and equated money with speech. Buckley also gave us the fundamentally flawed idea that fighting quid pro quo corruption and its appearance are the only legitimate reasons to regulate political money. And, the Buckley Court explicitly rejected an interest in promoting political equality-writing that "the concept that government may restrict the speech of some … in order to enhance the relative voice of others is wholly foreign to the First Amendment …"
The Roberts Court has been consistently hostile to campaign finance laws, culminating in 2010's Citizens United, which gave corporations the same First Amendment "speech" rights as individuals; opened the door to billionaire-funded Super PACs and unlimited, undisclosed "dark money;" doubled-down on the corruption only focus; and narrowed the definition of corruption substantially. Justice Kennedy wrote for the 5-4 majority that "ingratiation and access … are not corruption."
Justice Roberts followed this up in a 2011 case, writing specifically that limiting political money to level the playing field between wealthy donors and ordinary citizens is forbidden-only preventing quid pro quo corruption is allowed.
The Court doubled-down on this view while striking the limit on the total amount a rich donor is permitted to contribute to all federal candidates, parties, and PACs combined in McCutcheon-a limit that's already twice the yearly income of an average American family. Key to the ruling was Justice Roberts's cramped conception of the interests at stake. "This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption," Roberts wrote. Further, "government regulation may not target the general gratitude a candidate may feel towards those who support him or his allies, or the political access such support may afford…" but rather must be laser-focused on "a direct exchange of an official act for money."
The bottom line is that for nearly forty years when evaluating any limits on the use of money in politics, the Court has focused only on one narrow concern: is this regulation necessary to fight corruption or its appearance? And, in the last decade, the Roberts Court has clarified that it's only willing to recognize one very narrow type: quid pro quo corruption of individual officeholders (as opposed to more systemic forms of corruption).
In addition to being intellectually misguided, focusing on the effect of money on individuals misses the forest for the trees. The reality is that money buys elections more often than it buys politicians. While officeholders may at times alter their votes or priorities in response to particular contributions, most elected officials are probably not "corrupt" in this way most of the time. The "coal executive handing over a big check to buy policy" scene that opened this article is actually pretty rare in D.C. If special interests or wealthy individuals can ensure that their friends, associates, colleagues, or neighbors are elected to Congress, there will be comparatively little need to bribe them once in office.
And, the question is inherently limiting. Addressing the role of money in politics is not just about clean governance-it's about shifting fundamental power dynamics in American society to facilitate meaningful representation for all citizens. As noted above, much more profound questions about the relationship between capitalism and democracy, and the role of each citizen in that democracy, are at stake. Even if we are able to eliminate all financial quid pro quo "corruption" from the electoral process, money would still exercise tremendous influence on elections and hence policy outcomes.
Prior to Citizens United, some reformers believed that we could justify most, if not all, necessary reform measures under a broadly-conceived anti-corruption rationale-even if much of the public support behind such policies was based upon a desire to level the playing field and prevent large donors from drowning out the voices of non-wealthy citizens. But, the corruption interest was always inadequate; and the Roberts Court, especially with the McCutcheon ruling, has made it almost completely unavailing.
The Supreme Court's current campaign finance jurisprudence has placed out-of-bounds the fundamental reforms needed to enable ordinary citizens to claim our democracy from billionaires and special interests and hacked away at the basic protections needed to safeguard the integrity of our democracy. Limiting the government's interest to fighting corruption (as narrowly understood as possible) has been the anti-regulatory justices' primary tool. To cite just the most recent example, the McCutcheon case would have been a slam dunk if a broader range of concerns were considered. After all, it obviously undermines political equality for one very rich person to dump millions of dollars into our political system.
So, while important work remains to defend the few remaining effective campaign finance laws on the books, now is the time to turn our attention to achieving the type of transformative change in the legal-constitutional landscape that will enable policy advocates to once again go on the offensive to start building a democracy in which the strength of a citizen's voice no longer depends upon the size of her wallet.
To truly honor the First Amendment and to safeguard our democracy, the Court must remove its blinders and take a fresh, honest look at the full scope of core values at play. The vast majority of Americans don't think it's fair for one person to flood the system with hundreds or thousands of times more money than his fellow citizens can afford to spend or give, amplifying his voice with a million-dollar megaphone and drowning out his fellow citizens. The founders never intended the First Amendment to be a tool for use by wealthy donors to dominate our political discourse by crowding out the rest of America. There is room under the First Amendment to regulate money in politics to promote a diverse, robust conversation around candidates and causes while honoring political equality or other important values that help us achieve a truly representative government that accords with the principle of one person, one vote.
Over the past several years, scholars have proposed various pathways out of the current jurisprudential box. Some of these build out from the concept of corruption. Other theories speak to the value of political equality or the effective workings of democracy itself. And, some propose additional compelling government interests in regulating money that the Supreme Court has not considered or accepted, such as maximizing citizen participation or protecting candidates' and elected officials' time from the constant demands of fundraising so that they may focus adequately on the tasks of governance.
Regardless of the exact approach, it's time for an enduring interpretation of the Constitution that empowers the People to enact protections that strive not just for clean governance, but also to make democracy work for all Americans.
We can achieve this in two ways. We can transform the Supreme Court's approach to money in politics by developing and promoting robust interpretive frameworks that go beyond corruption; promoting these ideas with legal and popular audiences; and ensuring that newly appointed justices share the public's common-sense understanding of the Constitution. Or, we can amend the Constitution to clarify that the People have the power to rein in the influence of big money. Either way will do-but it's time to get moving.
We now stand at a crossroads. In the wake of Citizens United and McCutcheon v. FEC, we will either pick ourselves up and fight our way towards a truly representative democracy, or we will continue our recent slide towards plutocracy. We will take decisive action to break and reverse the vicious cycle of economic and political domination by the wealthy minority, or we will allow the cycle to spin out of control-possibly until it builds too much momentum to stop peacefully.
To choose representative democracy, we must rescue our Constitution. This is the task to which the great legal minds of our day must apply themselves. It won't be easy, but we can't afford to lose. It's only government that is truly of, by, and for the people that hangs in the balance.
Note: An earlier version of this piece appeared in The Seton Hall Law Review.
