Monday, March 3, 2014

Will a victory for McCutcheon usher a new era of corruption?

Things would be just “awful” if the Supreme Court holds for Shaun McCutcheon and the Republican National Committee in its widely anticipated McCutcheon v. FEC ruling. So says noted professor Rick Hasen.

The case centers on the constitutionality of statutory biennial limits on individual giving to various political entities, including candidate committees and political parties. (Disclosure: this writer was on the brief for Mr. McCutcheon in the final stage of litigation).

Professor Hasen recently opined on the supposed deleterious effects tossing these limits would have on campaign finance. Specifically he believes “more corruption” would result, making the current system even more inequitable.

But Hasen begs the question by presuming the current system is rampantly corrupt. And his McCutcheon-specific example is neither practical nor persuasive.

The “reformer” community often phrases its arguments as common sense. Of course there is too much money in politics, of course the rich are gaming the system, of course large contributions influence lawmakers’ voting behavior.

In discussing political corruption, Justice Stevens in McConnell v. FEC stated “common sense,” among other factors, broadened corruption beyond quid pro quo exchanges. The term included acts “subtle but equally dispiriting” that are neither “easily detected nor practical to criminalize.” It may not be illegal, but Justice Stevens knows it when he sees it.

Reformers rarely explain how access or other contributor perquisites corrupt because of its “obviousness.” But available scholarship largely discounts contributions as a corrupting force.

A recent study showed a “weak connection” between sources of campaign funding and roll call voting. Even with major legislation involving hundreds of billions of dollars like TARP, contributions mattered only at the margins.

An earlier study by Professor Paul Burstein showed that while contributors did influence legislative decision-making, the effect was too limited to sway the outcome of key votes.

What does matter? Burstein found public opinion, ideology, and party affiliation are the key drivers of legislative positions. Other studies have arrived at similar conclusions.

Regarding McCutcheon, Professor Hasen revives the much-discussed hypothetical $3.6 million-dollar check written by a single donor to a grateful party functionary. Hasen acknowledges the “other candidates and committees from the same party” would divvy up the donation. This formulation is a bit breezy.

The donation would encompass every single congressional and senate candidate, all three national committees, and every single state party in the entire country. In fact, no less than 524 committees would be involved.

Assume arguendo a donor would think it wise to max out to numerous candidates: (i.) he doesn't know; (ii.) have no chance of winning; and (iii.) are from distant regions of the country. Further assume he is happy to fork $10,000 per year to state parties with similar infirmities. Assume still further this fictitious donor would not find it more useful to concentrate his energy where it is needed most, for instance close races or those he has familiarity with.

With all this given, the donor has still not corrupted anyone because his aggregate donation did not exceed any individual amount Congress has determined noncorrupting. All that is left is the appearance the donor has done something wrong.

As scholar John Samples has explained, the mere “appearance” of corruption is not corruption at all. It is a false perception that some above board transaction is actually nefarious. The work of deciphering public perceptions may be a job for social scientists and pollsters, but it should not implicate First Amendment jurisprudence.

Thus, little credible evidence exists evincing a hopelessly corrupt political system. A recent Demos study, among others, has struggled to connect large political donations with policy preferences. But proof Mr. McCutcheon’s checkbook will change a vote or reverse a policy remains elusive—Justice Steven’s discernment notwithstanding.

By Paul Jossey and represent his views not necessarily those of the RNLA.

No comments:

Post a Comment