EUGENE D. MAZO
WAKE FOREST UNIVERSITY
SCHOOL OF LAW
“THE APPEARANCE AND DISAPPEARANCE OF CORRUPTION
IN AMERICAN CAMPAIGN FINANCE”
I.
II.
III.
IV.
Introduction to the Problem
The Disappearance of Corruption
The Appearance of Corruption
Regulating Corruption?
I.
Introduction to the Problem
We are obsessed with corruption. This does not mean that our elected government officials
are becoming any more corrupt. Rather, it is to say the study of corruption continues to consume the
energies of scholars and to attract the interests of activists who are determined to reform our cynical
and often dysfunctional campaign finance system. Ordinary Americans have corruption on their
minds, and a majority of them see it as a problem that needs to be addressed. Recent polls show that
most Americans consider corruption near the top of a list of issues that our leaders should tackle.1
Despite the renewed interest in study of corruption, regulating money in politics continues to
be notoriously difficult. On this score, things have not changed much over the years, and in fact
they have likely worsened. One obstacle standing in the way is the Supreme Court, which has held
that laws limiting campaign contributions to political candidates run afoul of the First Amendment.
In Citizens United v. Federal Election Commission, 2 the Supreme Court famously extended the
protections of the First Amendment to for-profit corporations, precipitating the flow of money into
political coffers in unprecedented sums.3 Given the state of the jurisprudence in this area, removing
big money from political campaigns seems impossible. That is the so because the Supreme Court
accepts only a very limited “corruption” rational for imposing limits on campaign contributions.
1
See Gallup Poll, Americans Want Next President to Prioritize Jobs, Corruption (July 2012), available at
http://www.gallup.com/poll/156347/americans-next-president-prioritize-jobs-corruption.aspx; see (visited February 1,
2014); Judicial Watch Poll, 77% of Americans Concerned about Government Corruption; Majority See it Getting
Worse (December 2013), available at http://www.judicialwatch.org/press-room/press-releases/new-judicial-watchbreitbart-poll-shows-77-of-americans-concerned-about-government-corruption-majority-see-it-getting-worse/ The
figure for the polling are available here:
2
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
See Richard L. Hasen, The Numbers Don’t Lie: If You Aren’t Sure Citizens United Gave Rise to Super PACs, Just
Follow The Money, SLATE, March 9, 2012, available at
http://www.slate.com/articles/news_and_politics/politics/2012/03/the_supreme_court_s_citizens_united_decision_has_l
ed_to_an_explosion_of_campaign_spending_.html (viewed on February 4, 2014).
3
1
In 1976, the case of Buckley v. Valeo put corruption at the center of campaign finance law. It
Buckley, the Supreme Court held that the only thing that could outweigh the freedoms of the First
Amendment to justify lacing limits on campaign contributions was society’s interest in preventing
“corruption and the appearance of corruption.” Since Buckley, the Supreme Court’s narrow
doctrinal justifications of preventing corruption and its appearance have been reiterated countlss
times. Barring a major and unforeseen shift in the law, the twin goals of preventing corruption and
the appearance of corruption will continue to be the criteria by which the constitutionality of all
further reforms in the campaign finance arena are likely to be measured by the Supreme Court.
The difficulty comes in figuring out what corruption and the appearance of corruption mean.
For the past thirty-eight years, the Court’s framing of this debate has led to much consternation and
confusion. Criticism can be leveled at the Court because its definition of corruption has been
inconsistently applied from case to case, and sometimes within the same case, as majority and
dissent have bickered back and forth. Meanwhile, scholars have themselves often thrown out
competing definitions what “corruption” consists of, how the Supreme Court should define the term,
and, following a recently popular line of inquiry, how the concept would have been understood by
the framers.4 The problem with all of these definitions is that they diffuse the term of any effective
meaning. The term becomes diluted, rather than distilled. In focusing on what corruption means,
scholars have become distracted from addressing questions of what actually needs to be regulated.
Our debates concerning the definition of corruption divert our attention from addressing the roots of
the problem. They focus our attention elsewhere, on something that is not, at the end of the day,
terribly important. In effect, the usefulness of the phrase “corruption” has disappeared.
I do not mean to suggest that the disappearance of corruption translates into phrase meaning
absolutely nothing. Rather, more subtly, it translates into corruption, both as a term of art and a
reason for regulation, losing its utility. Today, corruption is no longer useful to us as a heuristic
device for remedying our woes in the campaign finance arena. As the definition of corruption has
been debated by lawyers, scholars, and he the Supreme Court, that definition has widened and
narrowed, twisted and changed. Over time, our alternating tendency to use the word in competing,
and sometimes conflicting, ways leaves us with a phrase which has lost all of its usefulness.
When it comes to the other half of the Supreme Court’s narrow justification for allowing
campaign finance regulations—“the appearance of corruption”—the problem shifts. Regulating the
influence of money in politics based on whether corruption appears to be present—or, put another
way, based on people’s perceptions of whether it exists—turns out to be dangerous. Upholding
regulations based on appearances invites slippery reasoning. Appearances, or people’s fears of them,
may be unfounded. Or they may be genuine, but difficult to measure. Despite this, arguments based
on appearances, perceptions, and people’s fears have increasingly and alarmingly found their way
4
See, e.g., Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL LAW REVIEW 341 (2009); Lawrence Lessig,
What an Originalist Would Understand “Corruption” to Mean, 102 CALIFORNIA LAW REVIEW 1 (2014); ZEHPYR
TEACHOUT, CORRUPTION IN AMERICA (forthcoming, Harvard University Press, 2014).
2
into other areas of election law, including the debate over voter identification laws, where a
population’s fears of voter fraud has been used by the state to justify requiring voter ID laws.
Rather than engage in the debates over meaning of corruption, this article takes a different
approach. I argue that the study of corruption, including the often restless debates about what
precisely “corruption” means and how it has been defined by courts, are unnecessarily diverting our
attention away from other, more pressing concerns. There is, of course, a long list of them. Among
the most important, however, is the concern over how our institutions of government should
regulate money in the American political system. The effect that money has over elections, how it
skews which individuals are able to participate, including under which circumstances, and how it
works to change the policy agendas of those on the receiving end of the money game are all
problems that have no panacea. But if that is the case, and if Congress knows it, then its attempts at
reform have not proven very successful. Understood in this way, our problem issue is not corruption,
because politicians are not corrupt. They are merely playing by the rules of the game. Rather, the
real problem is the system itself, or specifically the inability of our institutions to reform it.
Professor Lawrence Lessig’s contribution to the campaign finance debates takes an
important step at getting us to understand the problem we face better.5 That is because Lessig’s
introduction of his concept of “dependence corruption” forces us to reckon with the idea that our
concerns in this realm may actually be institutional in nature. Still, while Lessig lays a foundation
for thinking about the challenges of campaign finance in a novel way, he does not go quite far
enough. His goal seems to be winning over the Supreme Court to his view of corruption, and he
avoids the conclusion that the problem with campaign finance may be the Supreme Court itself.
If justifications for reform based on the “corruption” rationale have disappeared, what
solutions remain? This article argues that election law theorists, including Lessig and the advocates
of process theory and theories based on equality, give too much deference to the courts—and to the
Supreme Court, in particular. All of these camps, for instance, concede that a majority of the
Supreme Court is unlikely to overturn Citizens United anytime soon, and yet each frames its
advocacy, including how it defines corruption, in a concerted effort to appeal to the Supreme Court.
Relying on the Supreme Court as the remedy of last resort, however, is a mistake.
Instead, this article proposes a different path. It asks us to look at courts as merely additional
institutional settings in which campaign finance regulations are implemented—or unwound, as the
case may be. Like Congress, the courts act as players in a complex game when they issue opinions
about campaign finance. Like Congress, the courts have the power to shape the contours and
regulations in this important area of the law. However, to the extent that there has recently been a
call for scholars to take an “institutional turn” in election law scholarship,6 it has curiously stopped
5
LAWRENCE LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS CONGRESS—AND A PLAN TO STOP IT (2011).
6
See Heather K. Gerken and Michael S. Kang, The Institutional Turn in Election Law Scholarship, in GUY-URIEL E.
CHARLES, HEATHER K. GERKEN, AND MICHAEL S, KANG, RACE, REFORM, AND REGULATION OF THE ELECTORAL
PROCESS: RECURRING PUZZLES IN AMERICAN DEMOCRACY 90 (2011).
3
short of seeking change in the way we view and understanding the institutional role of courts. A
change in the Supreme Court’s makeup may not come very soon. Understanding that, the challenge
thus becomes to find ways to regulate money in politics through means other than a federal law that
can be challenged in, and would invariably by struck down by, the Supreme Court.
The rest of this essay proceeds as follows. Part II provides a summary of the phenomenon I
call the disappearance of corruption. It reviews how both the Court and various scholars have
looked at corruption and explores the implications of this work. It argues that the focus on
corruption distracts us from addressing other concerns. Part III turns to an examination of a related
concept, the appearance of corruption. This is the only other justification that the Supreme Court
has given for upholding campaign finance regulation. However, until recently, regulations based on
appearances have been poorly theorized. Part III attempts to shed some light of this problem,
although it ultimately finds that appearance regulation may be ill-advised. Part IV argues that the
issue we should be focusing on is, in fact, not “corruption” at all, as that term has been understood,
but rather institutional malfunction. In this sense, the role of the Supreme Court in regulating
campaign finance needs to be rethought. For this endeavor, we can build on Professors Lessig’s
work. I end by proposing several alternative ways for corruption regulations to be enacted.
II.
The Disappearance of Corruption
Thirty-eight years ago in Buckley v. Valeo, 7 the Supreme Court placed the concept of
corruption at the center of campaign finance law. Buckley concerned the constitutionality of the
Federal Elections Campaign Act of 1971 (FECA), as amended in 1974, which has been passed by
Congress in direct response to the Watergate scandal.8 In passing FECA, Congress attempted to
enact a comprehensive system to regulate campaign finance. The law limited campaign
contributions, 9 placed limits on campaign expenditures, 10 increased reporting and disclosure
requirements for political candidates, 11 created a public financing scheme for presidential
primaries, 12 and established a new federal agency, the Federal Elections Commission (FEC), to
supervise and oversee federal elections.13 Yet Congress’s plan did not survive for very long. It was
immediately in the courts, and when the Supreme Court found itself with the opportunity chance to
7
Buckley v. Valeo, 424 U.S.1 (1976).
8
GUY-URIEL CHARLES AND JAMES A. GARDNER, ELECTION LAW IN THE AMERICAN POLITICAL SYSTEM 640-649 (2012).
9
Id, at 646.
10
Id. at 647.
11
Id. at 648.
12
Id. at 648.
13
Id. at 649.
4
review the FECA and the constitutionality of its various provisions in Buckley, it wound up setting
the parameters for what the future of campaign finance regulations would look like.14
Notably, the Supreme Court in Buckley decided to place the regulation of campaign finance
under the scrutiny of the First Amendment, which became the lens through which it would view all
future regulations concerning money in the political arena. The Supreme Court found in Buckley
that campaign contributions, which included the monetary sums given to political candidates,
differed in terms of the degree of First Amendment protection they enjoyed from campaign
expenditures, which referred to the sums of money spent by the campaigns themselves, In the
Court’s view, placing limits on campaign expenditures infringed on “core political speech,” while
limiting campaign contributions imposed only a “marginal restriction” upon the contributor’s rights
to engage in free and open communication.15 For this reason, the campaign expenditures imposed
on candidates were entitled to greater protection than were the contribution limits imposed on the
donors to political campaigns. In addition to the First Amendment reasoning for treating
contribution and expenditures differently, the Court also found that the contribution-expenditure
distinction was justified by the government’s interests for enacting campaign finance regulations.
Specifically, the Court held that society’s interest in preventing “corruption and the
appearance of corruption” could outweigh the limits on free expression that would otherwise be
imposed by placing restrictions on campaign contributions. 16 It found that large political
contributions raise the specter of corruption “to the extent that large contributions are given to
secure a political quid pro quo from current and potential officeholders.”17 By contrast, it reasoned
that campaign expenditures did not raise the possibility of corruption. As such, their regulation
more easily violated freedom of expression and the protections of the First Amendment. 18
Meanwhile, other goals, such as giving all citizens all equal influence over the electoral process,
limiting the influence of money in electoral politics, or creating more competition in the political
system itself, were explicitly rejected by the Supreme Court as being insufficiently compelling to
justify regulating political speech.19 The result of Buckley, therefore, was that limiting individual
contribution limits could be justified on anti-corruption grounds, while placing limits on federal
expenditures could not be upheld on the basis of any constitutional grounds whatsoever.
It might be noted that the Court’s opinion in Buckley was unusually long and complex. It consisted of a 143-page
unsigned per curiam opinion, of separate opinions by other justices that totaled 83 more pages, and appendices on top of
this, for a total of 294 pages. See Richard L. Hasen The Nine Lives of Buckley v. Valeo, in CAMPAIGN FINANCE: THE
PROBLEMS AND CONSEQUENCES OF REFORM at 30 (Robert G. Boatright ed., 2011).
14
15
Buckley, 424 U.S. at 28.
16
Id. at 20.
17
Id. at 26-27.
18
Id. at 46-47; see also Hasen, supra note 14, at 31.
19
Id. at 25-27.
5
Without providing a precise definition of what corruption meant, the Court in Buckley
originally compared corruption to something akin to bribery, reasoning that corruption was when
“large contributions are given to secure a political quid pro quo from current and potential office
holders.”20 In this sense, corruption was like a payoff, an exchange where a pre-arranged trading of
votes for monetary contributions was obtained. However, quid pro quo corruption was only one part
of the definition advanced, and the term, confusingly, meant other things to other members of the
Court. In short, the Court in Buckley began a pattern where it would mention and emphasize the
quid pro quo standard of corruption, but then would suggest that corruption implied something else
as well. In Buckley, for instance, the Court clarified that corruption could also extend beyond
bribery to the “undue influence” that someone could exert “on an officeholder’s judgment.”21
Undue influence, however, is a different concept from quid pro quo corruption, and to the
extent that these constitute two definitions of corruption, they differ. The quid pro quo standard, as
Thomas Burke explains, implies that it is corrupt for a person who holds public office to accept
money directly in exchange for taking some action.22 When it comes to defining what quid pro quo
corruption means, most understand that the deal has to be explicit, in that both sides know and agree
that a trade is being made. The “undue influence” standard, however, is broader. Here, officeholders
do not take contributions in direct exchange for casting votes a certain way. Rather, they are said to
be corrupt when they perform their functions with monetary considerations in mind.23
As may be evident already, coming up with a precise definition of “corruption” has proven
to be tricky and elusive. Like love, democracy, and even pornography, corruption is a concept that
is extremely difficult to define (even though most of us believe we know what it is when we
encounter it). It is Burke’s view that our challenge in defining corruption stems from the fact that
there exists no agreed upon “benchmark” against which to measure things. As he elaborates, “you
cannot call something corrupt without an implicit reference to some ideal. In order to employ the
concept of corruption in the context of a political controversy, such as that over campaign finance,
one must have some underlying notion of the pure, original or natural state of the body politic.”24
Since Buckley was handed down in 1976, the Supreme Court’s singular focus on preventing
corruption and the appearance of corruption has been repeated in a series of campaign finance cases.
In almost all of them, the Court has repeatedly been tasked with deciding whether new campaign
finance reforms and regulations violate the First Amendment. In 1990, in Austin v. Michigan
Chamber of Commerce, 25 the Court’s anti-corruption rationale was briefly expanded, and
20
Buckley, 424 U.S. at 26-27.
21
Id. at _____.
22
Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 14 CONSTITUTIONAL COMMENTARY 127,
128, 131 (1997).
23
Id.
24
Id.
25
494 U.S. 652 (1990).
6
considerably, to include in the definition of corruption “the corrosive and distorting effects of the
aggregation of wealth”26 by corporate spending in the political arena. In 2000, a decade later, the
Court found in Nixon v. Schrink Missouri Government PAC27 that the concept of corruption could
be defined as going beyond the merely bribing government officials and could extend to influencing
politicians who are compliant with the wishes of large contributors in a broader sense.28
In 2003, the Court even further in defining corruption when it told us, in McConnell v.
Federal Election Commission,29 that “Just as troubling as classic quid pro quo corruption is the
danger that officeholders will decide issues” based “on the wishes of those who have made large
financial contributions valued by the officeholder.”30 Here again, the Court was repeating its pattern
of officially defining corruption as a quid pro quo, but then implying that it was also something
more. Some have referred to this third concept of corruption the “distortion” standard. 31 The idea,
rooted in democratic theory, is that the decisions of public officials should reflect the views of those
who elect them to office. Campaign contributions are thought to be corrupting to the extent that they
do not reflect public opinion, and thus distort policymaking through their influence.32
While my aim here is not to provide an exhaustive list of all the ways that the Court has
swung when it has come to explaining what it means by the term “corruption,” I do at least wish to
emphasize that its definitions have suffered from a lack consistency. What comprises corruption, or
what the Supreme Court considers “corruption” to mean precisely, has changed over time, and the
result, perhaps unsurprisingly, has been a sense of confusion and doctrinal incoherence.33
To make matters worse still, scholars have not demonstrated a terrible amount of
cohesiveness in their approaches to the corruption debates either—and only seem to find common
ground when it comes to criticizing the Supreme Court. For example, the three categories of
corruption identified by Burke—quid pro quo, monetary influence, and distortion—differ from how
others have parsed the Supreme Court’s decisions to arrive at their own. Zephyr Teachout has
similarly looked at the Court’s jurisprudence on campaign finance, and she argues that there are
“five different clusters of the Supreme Court’s definitions of corruption,” not three. 34 Deborah
26
Id. at 660.
27
528 U.S. 377 (2000).
28
Id. at 389.
29
540 U.S. 93 (2003).
30
Id.
31
Burke, supra note 22, at 131.
32
Id.
33
For an excellent summary, see Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 MICHIGAN LAW
REVIEW 581 (2011).
34
Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell Law Review 341, 387 (2009).
7
Hellman warns that “the Court should be hesitant to define it [i.e. corruption] at all,”35 but then
herself goes on to differentiate between three different variations of the concept. 36 John Joseph
Wallis, writing about what happens on an institutional scale and not specifically about the Supreme
Court, argues that there are two categories of corruption.37 In any event, as may be evident, the
battle over the constitutionality of campaign finance reform has turned into a war focused on
defining corruption. Other scholars haves proposed yet further definitions and distinctions.38
“DEPENDENCE CORRUPTION”
It is into these treacherous waters, full of competing or sometimes contradictory definitions
of corruption, that Lawrence Lessig, a relative newcomer to these debates, wades. The goal of his
important book, Republic Lost, is to make us see that corruption pervades the system as a whole.
“Corruption,” in the sense that Professor Lessig wants us to understand it, dos not affect individuals,
but institutions. It is a kind of corruption that can exist “without assuming evil or criminal souls at
the helm.”39 Rather than having bad souls, Lessig argues that institutions themselves can become
corrupt when the individuals who function within that institution become dependent upon
something foreign to it. Lessig describes that something as “an influence that distracts them from
the intended purpose of the institution.”40 In his introduction, Lessig provides us with the example
of a compass. Everyone understands in looking at the arrow of a compass which direction is true
north. And yet, if someone were to rub a lodestone on the westward casing of the compass, its
needle would shift in that direction ever so slightly, thus distorting true reality. 41 Likewise, for
Lessig, an institution becomes corrupt when the pattern of influence operating upon individuals
within that institution draws them away from the way the institution’s was intended to function.42
Who is it that is corrupting the institutions of government? Lessig uses the example of a
place called Lesterland to show us. Lesterland is made up. It doesn’t exist. But in Lessig’s
imagination, it is a country where two kinds of people make their home. First, there is a small group
35
Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 MICHIGAN LAW REVIEW 1385, 1388
(2013).
Hellmann’s three categories include corruption as the deformation of judgment, corruption as the distortion of
influence, and corruption as the sale of favors. See id. at 1397-1400.
36
37
These are venal corruption and systemic corruption. The former involves the pursuit of private economic interests
through the political process, whereas the latter involves the economic distortion that happens when politicians create
“economic rents” though “selectively granting economic privileges.” John Joseph Wallis, The Concept of Systemic
Corruption in American Political and Economic History, National Bureau of Economic Research Working Paper No.
10952 (December 2004), at 2, available at: http://www.nber.org/papers/w10952
38
The literature here is quite large. See, e.g., Samuel Issacahroff, On Political Corruption, 124 HARVARD LAW REVIEW
118 (2010); David A. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 COLUMBIA LAW REVIEW 1369
(1994). [LIST OF MORE ARTICLES ON THIS HERE]
39
LESSIG, supra note 5, at 17.
40
Id. at 15.
41
Id. at 19.
42
Id. at 231.
8
of citizens called the Lesters. Second, there is everyone else. Like American democracy today,
Lesterland also runs two sets of elections during each electoral cycle: There is a primary, in which
only Lesters can vote, and then there is the election in which everyone else gets to vote. But to take
part in the regular election, a candidate must first win (or do very well in) the primary election in
which only Lesters vote. Lessig’s analogy is obviously to the White Primary Cases, a line of
election law cases in which the Supreme Court struck down the system of all-white primaries that
had existed in Texas and from which African-Americans were excluded. Whoever won the
Democratic primary in Texas was virtually guaranteed of winning the general election too, given
that the state was (then) overtly in the hands of the Democrats. But since blacks were not allowed to
vote in the primary, they in effect had no say over who would participate in the general elections. It
worked similarly to Lessig’s fictional primary. Because only Lesters can vote in this primary, they
in effect decide who wins the general election—or at least who gets to participate in it.
And in Lessig’s analogy, the way that Lester vote in their primaries is through money. In the
last two decades, according to Lessig, members of Congress have developed a fearsome
dependency on campaign cash. The total amount spent on campaigns by all candidates for Congress
in 2010 was $1.8 billion.43 Fundraising has become a way of life, and extravagant giving has been
institutionalized. Lessig cites the example of former Senator Max Baucus (D-Montana), who was
the chairman of the Senate Committee on Finance, a position that gave him a critical role in the
debate over President Obama’s healthcare proposal. Between 2003 and 2008, Baucus received $5
million in campaign contributions from the insurance and health care industries.44 But Lessig also
cites similar examples from both sides of the aisle, for he points the finger at neither political party
in particular. In 2009 alone, lobbyists spent $3.5 billion, or $6.5 million for each congressman.
This need for campaign cash has one clear and important effect. Members of Congress now
spend between 30 and 70 percent of their time raising money, instead of deliberating as they were
elected to do. And as the need for fundraising has increased, the amount of time members of
Congress spend in committee meetings has dropped in inverse proportion.
If only our politicians were not in constant need of cash—to fuel political campaigns, run
attack ads against adversaries, and buy their way to electoral victory—present-day Washington, so
the theory goes and the media tells us, would be different. Our political elites would have time to
engage in meaningful dialogue, would spend more time paying attention to their constituents, and
would focus on issues that real citizens, rather than corporations, care about. Over and over, this is
what we, the People, are told. But we are told this by the mushrooming literature in the campaign
finance field that aims to understand corruption—“this disease,” as Professor Lawrence Lessig has
recently famously called it45—rather than by a literature that deals with what it at its root.
43
Id. at _____.
44
Id. at _____.
45
Id.. at 11.
9
Lessig provides an interesting way of looking at an old problem. Building on the work of
Dennis Thompson, who pioneered the distinction between corruption in its individual and
institutional forms,46 and also on the work of Zephy Teachout, who argues that a concern about
corruption can be traced back to the framers of the Constitution, Lessig’s “dependence corruption”
is meant to refer to the kind of corruption that pervades the institutions of government.47 The term
dependence corruption” does not mean venal corruption: bribery or bags of cash for personal use.
The Framers of the Constitution sought to guard against that by explicitly outlawing the corrupting
potential of gifts from foreign nations in Article 1. The framers, Lessig says, had just one kind of
dependence in mind for members of Congress: a dependence on the people. He quotes The
Federalist No. 52 which describes the House of Representatives as the “branch of the federal
government which ought to be dependent on the people alone In short, Lessig certainly makes an
important contribution to our understanding of corruption. It is a contribution, moreover, that seems
solidly grounded in an originalist understanding of the Constitution itself.
His unique analogy to Lesterland also makes us see clearer than ever how in order to win
office our politicians in Congress are more dependent upon a limited group of wealthy funders than
they are on the people they are being elected to represent. These funders need to be kept happy if
they are to keep giving. Thus, over time, legislators bend to the desires of these funders, whereas the
framers intended for Congress to be “dependent upon the People alone.”48 Lessig points the many
devices that the framers used to ensure sure that Congress’s dependency would be enforced only
upon the people, including holding elections every two years and so forth.49
THE TEMPTING CONCEPT
My purpose here is not to provide a substantive summary of Lessis’a arguments, nor to
provide a critique of them, which others have done adequately elsewhere.50 Nor in reviewing the
numerous definitions of corruption that have been put forth both by the Supreme Court and by
scholars is my goal to show off the diversity of labels that we have for this term. Rather, I have
gone over this ground merely show the confusion that may results from their sheer number.
46
See DENNIS F. THOMPSON, ETHICS IN CONGRESS: FROM INDIVIDUAL TO INSTITUTIONAL CORRUPTION (1995).
As Lessig explains, “’dependence corruption’ is a type of ‘institutional corruption.’ Like institutional corruption, the
claim rests on the ‘tendency’ that evolves within the institution of Congress.” See Lawrence Lessig, Institutional
Corruptions, Edmund J. Safra Working Paper, No. 1, at 14 (Harvard University, March 15, 2013).
47
48
LESSIG, supra note 5, at 231.
49
Id.
Indeed, there are quite a number of commentators who criticize Lessig’s concept on the merits and at great length.
See, e.g., Richard L. Hasen, Fixing Washington, 126 HARVARD LAW REVIEW 550 (2012); Richard L. Hasen, Is
“Dependence Corruption” Distinct from a Political Equality Argument for Campaign Finance Laws? A Reply to
Professor Lessig, 12 ELECTION LAW JOURNAL 305 (2013); Guy Uriel E. Charles, Corruption Temptation, 102
CALIFORNIA LAW REVIEW 25 (2014); Bruce E. Cain, Is “Dependence Corruption” the Solution to America’s Campaign
Finance Problems, 102 California Law Review 37 (2014); and Seth Barrett Tillman, Why Professor Lessig’s
“Dependence Corruption” Is Not A Founding Era Concept, 13 ELECTION LAW JOURNAL ___ (forthcoming 2014)
50
10
As may at this point be obvious, we have too many definitions and understandings of what
corruption should mean. Taken individually, at least some of these are rather useful and have done a
great deal to contribute to our robust knowledge of how the politics works—and, perhaps, what
might be wrong with it. But taken as a collective, all of these numerous, multi-faceted, and
sometimes conflicting definitions of corruption have not done a service to solving the issue at hand.
They have collectively lowered the “shelf-life” of any one definition of the term, and they have
done so in a way that has made the usefulness of the phrase less meaningful as a whole.
This disappearance of corruption is, of course, the ultimate result of Buckley’s complicated
legacy. In enacting the original Federal Election Campaign Act in 1971, Congress had a number or
objectives that it wanted to address. These included creating public financing for federal elections,
regulating the supply of money in politics, and equalizing the amount of influence each person had
in the political arena.51 In handing down Buckley, however, the Supreme Court transformed how
Americans would come to understand the regulation of money in politics. Buckley radically turned
campaign finance not into an individual problem, or even an institutional problem, but into a
constitutional problem. It did so by transforming campaign finance into a First Amendment issue.52
Moreover, by focusing on the corruption and the appearance of corruption as the only
doctrinal justifications for reform, Buckley and its progeny have caused scholars and practitioners to
winnow the range of their discourse precipitously. As Guy Charles persuasively argues, “We no
longer talk about the gamut of values we would like to see reflected in a system of campaign
financing. To be taken seriously in this doctrinal debate, all of our discourse must be articulated
within the corruption framework, which causes us to ignore other concerns that ought to be of
interest when considering a system of campaign financing.”53 Professor Charles astutely labels this
obsession with defining corruption the “corruption temptation.”54 The temptation is to focus on the
definition of corruption, but in seeking to define that term, we do so at the risk of not figuring out
what we want fixed. Corruption becomes less useful. This is the disappearance of corruption.
II.
The Appearance of Corruption
When the Supreme Court handed down Buckley v. Valeo, it established that Congress and
the states could pass campaign finance laws to address corruption and the appearance of corruption.
Beginning with Buckley, avoiding “the appearance of corruption” has also been cited as important
factor in campaign finance enacting reform, although one that is not quite as important as
preventing corruption itself. The phrase that the Court used is that the appearance of corruption is
51
See GARDNER AND CHARLES, supra note 8, at 643-649 (2012).
52
On this point, see Charles, supra note 49, at ____ (2013).
53
Id. at 26.
54
Id.
11
“Of almost equal concern.”55 Over the years, the “corruption” half of the ruling had attracted most
of the attention of scholars and commentators. Meanwhile, the power to regulate the “appearance of
corruption,” which may be equally important goal, has been treated as a poor step-child. The
category has been poorly conceptualized, and it remains not well understood.
Which is not to say that the category is unimportant. Certainly, the Supreme Court thought it
was and emphasized as much in its decisions upholding certain provisions of 1974 Amendment to
the FECA. In Buckley, the Court explained how Congress “could legitimately conclude that the
avoidance of the appearance of improper influence ‘is also critical … if confidence in the system of
representative government is not to be eroded’…”56 Likewise, in McConnell v. Federal Election
Commission, the 2003 decision the upheld most of the provisions of the more recent Bipartisan
Campaign Reform Act of 2002 (BCRA), the Court repeatedly referred to the government’s strong
interest in “preventing corruption and the appearance of corruption.”57
From the way that the Supreme Court has repeatedly referred to these terms, it would seem
that “corruption” and “the appearance of corruption” might be different categories. Buckley had
referred to the government interest in “combating the appearance or perception of corruption” that
came from large campaign contributions to political candidates as being of “almost equal”
importance to combating “corruption” itself, while McConnell talks about the “Government’s
strong interest in preventing corruption, and in particular the appearance of corruption.”58
Thus the Court’s equation of “the appearance of corruption” with “corruption” itself has, in
the years since Buckley, provided a second unqiue category under which campaign finance
regulations may be justified. But this justification, rather than being based on empirical harms,
hinges on public perceptions. And appearances, unfortunately, are not always what they seem.59
They can be messy and subjective, and can lead to a number of cascading effects that skew reality
in unintended ways. We would be wise not to think highly of courts when they uphold regulations
based on appearances only, without proof being proffered of the underlying problem’s existence.
A SEPARATE CATEGORY
As an initial matter, does the “appearance of corruption” constitute a separate phenomenon
from “corruption” itself? This question has itself been the subject of a debate, and at least some
55
Buckley, 424 U.S. at 27. See also Robert F. Bauer, The Varieties of Corruption and the Problem of Appearance, 125
HARVARD LAW REVIEW 91, 92 (2012). [Maybe delete Bauer.]
56
Buckley, at ___.
57
McConnell v. FEC, ____.
58
McConnell, at ____ (emphasis added?). CHECK THIS
59
Courts have relied on the following kind of evidence to demonstrate that an appearance of corruption may exist:
newspaper accounts, testimony from political figures, experts and other witnesses, referendum results, and public
opinion polls. See Persily and Lammie, supra note _____, at 128-129.
12
scholars believe that it does. Mark Warren argues that the concepts of “corruption” and “the
appearance of corruption” are, in fact, distinct. Yet he argues that, unlike corruption, society’s
concern with the appearances of corruption is of recent origin.60 It came about as a result of the
declining trust in government in the 1960s and is rooted in the notion that combatting corruption
involves dealing with the perceptions that the public holds of government officials and institutions,
which the public believes are inclined to act in ways that serve only their own powerful interests.61
While arguing for appearance regulations to be considered a separate category, Warren also
recognizes that regulations aimed at appearances can sometimes “take on a life of their own.” 62 For
instance, regulations can be aimed at curbing appearances for their own sake, even when there is no
misdeed or illegal activity underlying them. And this is recognized as being dangerous. To get
around this problem, Warren calls for us to develop a more robust theory that could justify the
regulation of appearances, and preferably one that is firmly steeped in democratic theory. 63 As
Warren explains, “institutions that fail to support citizens’ confidence in appearances produce
political exclusion and generate a form of disempowerment. Together these failures amount to a
corruption of the democratic process.”64 Appearances regulations provide a link to governance.
THEORIZING THE REGULATION OF APPEARANCES
Adam Samaha is perhaps the first scholar who has aspired to build a general framework for
understanding and evaluating claims that a government decision is justified because it will create a
desirable appearance.65 However, Samaha warns that “[a]ppearance arguments can be slippery” and
are “troublesome when asserted by those who claim to be working for the public good.” 66 This is
because appearances might or might not represent the reality in question. Samaha provides an
example of this when he raises the question of whether the appearance of a neighborhood might
lead to more crime, and whether policing strategies, by changing what a neighborhood physically
looks like, can stop crime from happening in it.67 The justification for uses appearance to regulate
crime in a neighborhood—known as “broken windows policing”68—may be familiar to those of us
60
Mark E. Warren, Democracy and Deceit: Regulating Appearance of Corruption, AMERICAN JOURNAL OF POLITICAL
SCIENCE, Vol. 50, No, 1 (Jan. 2006), at 160 (emphasis in original).
61
Id.
62
Id. at 162.
63
Id at 172.
64
Id. at 172-173.
65
Adam Samaha, Regulation for the Sake of Appearance, 125 HARV. L. REV. 1563, 1567 (2012).
66
Id.
67
Id. at 1566.
68
This term has been attributed to the work of the sociologist James Q. Wilson and his colleague George L. Kelling.
See James Q. Wilson and George L. Kelling, Broken Window: The Police and Neighborhood Safety, ATLANTIC
MONTHLY, Mar. 1982, at 29, 29-38. For a criticism of the theory, see generally BERNARD E. HARCOURT, ILLUSION OF
ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING (2001). In the law review literature, some of this inquiry
13
who have driven through a less-than-desirable neighborhood. The biases and judgments we make
about such neighborhoods, moreover, may be no different from what we think of a person when it
comes to his or her grooming and dress.69 Still, the regulation of appearances, both in these areas
and in campaign finance, is not a phenomenon that is well-theorized. 70 Samaha believes this is
especially the case when it comes to “legal institutions” or professional ethics.71 As he elaborates:
Appearance arguments can be slippery and, often enough, troublesome when asserted
by those who claim to be working for the public good. Consider campaign finance
litigation. Courts have invalidated a government interest in appearing noncorrupt
without much explanation of how or why it should matter. Are we supposed to think
that government is entitled to appear noncorrupt even if it is, in fact, riddled with
corruption? Are defenders of campaign finance laws claiming to know that the
government is basically free of corruption? Is there anything more to the argument?72
In an effort to confront the “potential and problematics of appearance justifications,”
Samaha sets out to build a framework “for understanding and evaluating claims that a government
decision is justified because it will create a desirable appearance.” 73 He begins by exploring in
greater detail the relationships between appearance and reality before going on to look at situations
where appearance and reality may diverge. When there does not exist a reality that is substantially
different from appearance, the evaluation of a law or norm promulgated to correct the reality is
uncomplicated. However, if appearance and reality happen to diverge, then questions undoubtedly
arise with respect to any government decisions that may be taken on the basis of an appearance.
There are three ways of thinking about the relationship between appearance and reality.74
The first involves those situations where reality is entirely insulated from appearance. The example
Samaha provides is of a bridge connecting two towns that are separated by a river.75 That bridge can
appear unsound but actually be safe, or it can appear to be safe but in reality lack structural support
and integrity, although in each case a good engineer would be able to spot this right away. In order
to make people think that the bridge is safe, architects know that they must “design in” the
appearance of safety, such as putting struts on the outside of the bridge. Yet these struts, designed
can be found in Tracey L. Meares & Dan Kahan, Law and (Norms of) Order in the Inner City, LAW & SOCIETY REVIEW
805, 805-832 (1998).
69
See DEBORAH RHODE, THE BEAUTY BIAS: THE INJUSTICE OF APPEARANCE IN LIFE AND LAW (2010).
70
Although there are exceptions from several areas of the law, such as anti-discrimination law. See, e.g., See, e.g.,
Robert C. Post, The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1 (2000).
71
Deborah Hellman, Judging by Appearances: Professional Ethics, Expressive Government, and the Moral
Significance of How Things Seem, 60 Maryland Law Review 653 (2001) and Matthew D. Adlet, Expression and
Appearance: A Comment on Hellman, 60 Maryland Law Review 688 (2001).
72
Samaha, supra note 65, at 1567.
73
Id. at 1567.
74
Id. at 1574-1575.
75
Id. at 1575.
14
purely for the sake of appearance, in fact may have no bearing on the physical integrity and safety
of the structure and are placed there only in the hope of reassuring the average daily user of the
bridge of the safety of crossing it.76 Still, the point is, simply believing that the bridge is safe does
not necessarily or architecturally make it so.77
A second situation is one where an appearance may drive what reality looks like over time.
In other words,, appearance and reality may initially diverge, but what people’s beliefs happen to be
is what reality in fact becomes over time. Appearances, according to this way of thinking, become
“self-fulfilling prophesies.” The “bank run” is perhaps the best-known example of this phenomenon,
and it can go a long way toward to explaining when a mere appearance of something can act to
precipitate meltdown of something as large as a financial institution. If bank depositors believe that
there will be a run on the bank, they will themselves help cause the run as they scramble to
withdraw their savings. And even if they do not cause the run initially, their actions will accelerate
it.78 Another example that can be provided is that of the tipping point. If one attends a performance,
it is customary for those in the audience to clap afterwards. Sometimes, if the performance is
especially good, it is customary for members of the audience to stand. However, there are audience
members who may not think the performance was so good as to be worth standing for, but the fact
that the majority of the auditorium is standing causes these audience members to stand as well,
whether because of peer pressure of a similar effect. In short, a person may find himself standing as
he is clapping regardless of whether he really enjoyed the show, and depending on what others
around him are doing. So for the cast members, appearance may not always reflect true reality.
Yet a third way of thinking about the relationship between appearance and reality is to
imagine situations where reality collapses into appearance. The example that Samaha gives is of
society’s use of clocks.79 These provide an agreed-upon social convention for keeping time that is
acceptable and understandable to all. Our official time is kept in Greenwich, England, and is known
as Greenwich Mean Time. And local time, whether it is official or not, has become a useful point of
reference for countless information systems. Almost all of modern society—from trains to airports
to banks to governments—relies on a construct of time that that the watches we wear represent.
However, in reality time is really nothing more than a useful human convention,80 a way of
solving coordination problems through coordination at their most basic and intuitive level. After all,
the time that is shown on a watch may not be the time “in reality.” Whatever the time may be on a
clock is certainly very different from the concept of time as measured by space, the cosmos, and the
76
Id. at 1575.
77
Id. at 1576.
78
Id. at 1578,
79
Id. at 1580-81. See also TODD D. RACKOFF, A TIME FOR EVERY PURPOSE: LAW AND THE BALANCE OF LIFE (2002)
(tracing the law’s effect on our use of time in ways that are so subtle and ubiquitous that we barely notice it and arguing
that the structure of time establishes the terms by which society allocates its efforts and establishes the rhythms of life)..
80
Id. at 1581.
15
universe. Despite this, the appearance of time becomes reality for those who accept that appearance
as real. But to show that time is a construct we need only understand how various governments use
time differently. In Russia, there are eleven times zones, yet all of the trains come and go on
“Moscow” time, the time used by all train stations. And in China, which likewise spans many time
zones in the minds of Westerners, the government has mandated that the entire country, and not
only the train stations, functions on “Beijing” time. Thus the appearance of time on the ground in
China may be different from the different time that it is in that “time zone.”
Even in situations where we do not know whether appearance and reality are the same,
legislators have been known to regulate on the basis of appearances—for instance, to prevent the
unusual taking of risk. Cass Sunstein terms regulation on this basis “the Precautionary Principle,”
though his view is that it leads to paralysis, because what the principle stands for rather vague.81 In
its strongest and most distinctive form, this principle imposes a burden of proof on those who create
potential risks to society. Sunstein believes that it requires regulation of activities even if it cannot
be shown that those activities are likely to produce significant harms. He argues, however, that the
Precautionary Principle should be rejected. This is not because it leads in bad directions, but
because it leads in no directions at all. Taking a step back, we understand that every step taken in
society, including inaction, creates a risk to health, the environment, or both.82
The same can be said of appearances. If not understood carefully, politics will always appear
corrupt (at least to someone) and on that basis there may be at least some people who believe that
corruption needs to be regulated, even in instances when we have no empirical evidence that
corruption actually exists. A further danger is that appearances justifications may spill into other
areas. For example, the Supreme Court relied on similar logic in Crawford v. Marion County School
Board, the 2008 case that upheld Indiana’s requirement that voters present a photo-ID in order to
vote. There, the Court reasoned that it a compelling justification for Indiana’s new voter ID
requirement was to prevent the “fear of voter fraud” among ordinary citizens of the state. Since the
state could not proffer actual empirical evidence that voter fraud had been occurring in Indiana, it
necessarily had to rely on voters’ fears of that voter fraud might occur as its justification for
imposing new requirements on the electorate. The problem was that there was little empirical
research about what people’s beliefs were at the time, and even less about whether those beliefs
were rational. One study, conducted around the time and based on polling data and voting records,
actually found that there was no correlation between people’s beliefs about the prevalence of voter
fraud and electoral turnout. Similarly, there was no connection or correlations found between the
strength of a state’s voter identification requirement and people’s beliefs about voter fraud.83
81
CASS R. SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE 26 (2005).
82
Id. at ____.
83
Nathaniel Persily and Stephen Ansolabehere, Voter Fraud in the Eye of the Beholder: The Roles of Public Opinion in
the Challenge to Voter Identification Requirements, 121 HARVARD LAW REVIEW 1737, 1750-60 (2008). On the other
hand, some commentators have argued that governments do have an obligation to prevent the appearance of voter fraud.
16
Samaha believes that the Supreme Court “treat[s] the appearance justification for campaign
finance regulation as if government were the proverbial bridge.”84 That is to say, the justices show
varying levels of sympathy and interest toward the alleged worries that elected officials have for
public confidence, and this worry consistently changes and evolves, following a “causal path from
perceived official misconduct to citizen demoralization and loss of confidence in government.”85
The ultimate dangers are not actually specified, or rather not specified very clearly. What, exactly,
happens when people’s perception or appearance of corruption goes up? Does that impact politics in
some way or does it have no effect whatsoever, either on the behavior of politicians, or our ability
to pass campaign finance legislation, or on something else? These questions are not answered, and
not even addressed, by the current debates. And what is the relationship between the appearance of
corruption and actual corruption? The problem is that the ultimate dangers behind the appearance of
corruption justification are not fully specified. Instead, they are akin to Samaha’s bridge, which,
regardless of its structural integrity, can be made useful and become not-often-traveled just by
virtue of having a “risky” reputation.86 And this is no way to regulate society.
Appearances are especially dangerous way of regulating politics for courts to engage in.
One reason, as mentioned, is that appearance and reality may diverge. A second reason is that the
feared consequence of poor appearance is the sagging or lowering of public confidence, which
although it may be a problem in the normative sense, does not equate to more actual corruption and
not a problem that the court should be tasked with tackling. This problem is obviously different
from actual corruption itself. It is not clear that regulation leads to less corruption, either. Judges are
also not known to be good at empiricism. Not in their training. Moreover, judges are susceptible to
the same claim that corruption exists in society as are regular people, without counting he numbers.
Judges don’t understand how causation happens, and without that, how to regulate appearances.
THE DANGERS OF APPEARANCE REGULATIONS
One reason to be skeptical of “the appearance of corruption” rationale in justifying
campaign finance reform is that the public’s perception of whether corruption exists (or not) may
not be tied to actual reforms. Instead, it may be based on other factors. In an important article,
Professors Nathaniel Persily and Kelli Lammie argue that trends in the public perception of
corruption may have little to do, in fact, with the campaign finance system at all.87 Rather, they
argue, a number of other factors influence when people’s perceptions of corruption in government
rise and fall. Looking at forty years of survey data about the attitudes that citizens have concerning
See, e.g., Andrew N. DeLaney, Note, Appearance Matters: Why the State Has an Interest in Preventing the Appearance
of Voter Fraud, 83 NEW YORK UNIVERSITY LAW REVIEW 847 (2008).
84
Samaha, supra note 65, at 1599.
85
Id.
86
Id.
87
Nathaniel Persily and Kelli Lammie, Perception of Corruption and Campaign Finance: When Public Opinion
Determines Constitutional Law, 153 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 119 (___).
17
corruption in government, Persily and Lammie find that a person’s perception of corruption derives
to a large extent from his (1) position in society, including his race, income, and educational level;
(2) his or her opinion of the incumbent president and the performance of the economy of the
previous year; (3) his or her attitude concerning taxation and “big government”; and (4) his or her
propensity to trust other people in general. 88 On the whole, those who come from lower
socioeconomic status are also more likely to tend to perceive the existence of corruption.89
There is also research to suggest that the public’s thoughts of whether corruption exists or
not may not be very well-founded. For example, the Center for Competitive Politics in Washington,
D.C., tried to find out through survey data what the average American thought about eight related
campaign-finance issues, including public financing of campaigns, contribution limits on donations,
rules regulating disclosure, and the appearance of corruption. After explaining to survey
respondents that candidates for Congress raising money from private sources and that in 2008 the
average campaign expenditure or a winning candidate in a U.S. race was about $1.1 million and the
average expenditure for a winning Senate seat was $6.5 million, the survey asked participants the
following question: “At what level do you think a contribution to a candidate for Congress becomes
large enough to exert a corrupting influence on that candidate?”90
Respondents were permitted to choose any dollar amount in their answers, to choose no
dollar amount, or to write a specific amount of their own choosing.91 At the time of the survey, the
federal contribution limit was $2,500, and yet this answer was chosen by very few respondents.
Rather, the median and mode answers for those who gave dollar amounts both said that $10,000
was the amount above which there would appear to be a corrupting influence. 92 The Center for
Competitive Politics reasoned that there does not appear a logical reason why the then-contribution
limit of $2,500 (which had been set as $1,000 by FECA in 1971 and has been adjusted for inflation
over the every odd-numbered year since93) has been made as the limit for contributions. Instead,
people think that $10,000 is the more corruptible limit, the study found, while the standard of
$2,500 “seems to have no quantitative or psychological effects.”94
Indeed, the survey found not just that federal individual contribution limits may be much too
low to trigger any sort of “appearance of corruption” in the public, but also that people who do not
88
Id.
89
Id. at 121.
Jason Fareell and Nima Veiseh, Public Perception and the “Appearance of Corruption” in Campaign Finance,
CENTER FOR COMPETITIVE POLITICS REPORT at 3 (December 16, 2011), available at
http://www.campaignfreedom.org/wp-content/uploads/2012/11/Public-Perception-and-the-Appearance-of-Corruptionin-Campaign-Finance-Report-Final.pdf (visited on February 1, 2014).
90
91
Id. at 3.
92
Id. at 3.
93
Id. at 3.
94
Id. at 3.
18
donate to campaigns are much more likely to be concerned about the corrupting influence of money
on politics.95 People who do not donate to political campaigns are more likely to think that they are
corrupt, which is perhaps a natural correlation. We would expect those who believe that our system
of government is corrupt to be the same people who express the most cynicism and skepticism of
politics, while those who do donate to campaigns to be those who feel that they understand the way
the game is played and that their donations are going to further the chances of their chosen player in
the game. Still, it is unlikely that setting individual contribution limits where they have been has had
much of an impact on public opinion or that the “appearance of corruption” would change if these
contribution limits were raised by Congress to be as much as even $10,000.96
In short, following on the heels of Persily and Lammie, other studies have shown that the
state of the campaign finance system in the United States has little to do with the public perception
of corruption, and that the public’s notion of when the “appearance of corruption” exists is based on
a host of other factors. Some of these factors may include people’s preexisting biases, and they
might not be tried to logic or empirical reality as such. If they are not, then formulating rules and
regulating corruption based on appearances would seem to present a slippery slope for policymakers.
In addition to the reasons outlined above, other commentators have pointed out further
reasons still that the appearances rationale is troublesome. Among the most obvious is that it invites
regulation on an indiscriminate basis. As Ronald Levin has written, “a focus on appearances creates
a strong temptation to engage in superficial analysis of what kind of campaign finance reform is
most needed.”97 Here, there are two strains of argument that we might convincingly pursue. First,
appearances can be manipulated—and, in fact, they often are. In an era of the scandal-ridden,
twenty-four hour news cycle, the appearance of impropriety is often directed at rivals, but it would
be foolish to base policies on what we see and hear without proof of it actually occurring. Second,
the appearances rationale invites circular reasoning. Again, as Levin writes, “it means that the most
zealous and aggressive advocates of restriction can make accusations, whether well founded or not,
and then use the very fact that some people believe the charges as a reason to justify regulation.” 98
People may also be lying when they talk about appearances, or else the appearances may not
reflect reality. An example is the so-called “Bradley Affect.”99 This is a phenomenon characterized
95
Id. at 2.
96
Id. at 4.
97
See, e.g., Ronald M. Levin, Fighting the Appearance of Corruption, 6 WASHINGTON UNIVERSITY JOURNAL OF LAW &
POLICY 171, 177-178 (2001).
Id. at 178. Indeed, Levin believes that the “appearances” rationale does not solve the problem that it seeks to address.
In his view the “language from Buckley needs adjustment” and, as he puts it, the “central issue should be: what kinds of
[campaign finance] restrictions are needed to prevent corruption or a significant tendency toward corruption?” Id.
(emphasis in original).
98
99
The concept is named for Tom Bradley, an African-American man who ran for the office of Governor of California in
1982. In polls leading up to the election, Bradley had a clear lead, and numerous media outlets boldly projected that he
would win the election. On election night, however, he lost to the Republican candidate, much to the puzzlement of the
Democratic Party and many Californians. One of the primary explanations for this phenomenon is racial. Pollsters have
19
by the tendency of non-white political candidates to perform better in opinion polls than they do in
actual elections when they are running against white candidates. This effect often strikes black
politicians, although it can just as easily affect Hispanics and other minorities. The phenomenon has
been a topic of intense study by pollsters, political analysts, and others, and there are several
theories used to explain the Bradley effect, which is sometimes also known as the Wilder Effect.
It is also worth noting that appearances regulations are unlike almost anything else in our
legal system. Usually when the core First Amendment rights of speech and association are at stake,
courts apply strict scrutiny review. However, in the campaign finance context, what constitutes
reality and what appears to be reality somehow are made to stand on equal footing. It is not only the
actual prevention of corruption which justifies the state’s regulations, but also the prevention of
appearances of corruption. It is a rationale with few counterparts in other aspects of the law.
The final problem with appearances is that they provide challenges in helping us to figure
out causation. We do not know if corrupt officials appear corrupt, or pointing the arrow in the other
direction, if regulating the appearance actually lessens corruption. Numerous phenomena can
plausibly influence the level of corruption in society, among them urbanization, income levels, the
government salaries of government workers, competition for public office, access given to public
officials calendars, and many others. Next, the perception of corruption can also be influence by
many different phenomena, including term limits, redistricting procedures, and so forth. It is not at
all clear that there is an overlap or that one influences the other. For this reason, Samaha and others
tell us that “judges have waded into questions of appearance without a functional navigation
system” 100 and that is extremely dangerous. As Samaha explains: “They make untested yet
confident assertions about the effects of regulation. They myopically picture the political system as
if it were a bridge in need of public confidence but without pressing core transparency concerns.”101
When we stop to think about it, we realize that a lot of regulations are based on appearances.
That is as true of those regulations affecting the stock market as it is of ones affecting crime and
safety. When these regulations are promulgated by legislatures that is one thing, but when they are
mandated by courts, it is another. It becomes problematic and suspect, because we do not know that
the courts are capable of handling appearances all that well. As Robert Bauer astutely writes:
Neither the same as actual corruption not well defined in its own right, the
“appearance of corruption” as a basis for campaign finance regulation is suspect on
two counts, depending on the observer: appearances are either useless appendages to
demonstrated instances of quid pro quo corruption, or they are rhetorical
compensation for their absence. If there is corruption, then the appearance of it may
suggested that voters may not want to admit to planning to vote against a black candidate, because they fear being
perceived as racist, especially when the pollster is black.
100
Samaha, supra note 65, at 1619.
101
Id.
20
be self-evidence, but beside the point. Absent corruption, placing the full weight of
the state regulatory interest on “appearances” guarantees contention, since the
regulatory regime’s advocates will often perceive what its critics do not see.102
Indeed, in Bauer’s view, the appearances doctrine, as he calls it, does not even get to the crux of the
problem in campaign finance: “it is concerned only with the appearance of government corruption,
without attention paid to the perceived corruption of the electoral process.”103 And here is where the
important work of Professor Lawrence Lessig comes in to play.
Generally, the type of corruption that gives rise to the problem of appearance problem is the
corruption of a government official acting in his official capacity. Under contemporary campaign
finance jurisprudence, corruption as defined by the Supreme Court is tied closely to the concept of
quid pro quo corruption, and it includes concepts, such as bribery, that involve the sale of an official
office, or of a vote, for personal gain. Yet the general problem is not that government officials are
themselves overtly corrupt once they take office—although they may be that, and certainly have
been in the past—but that our system for electing them is corrupt as the whole.
IV.
Regulating Corruption?
Let me for a minute refocus our attention away from corruption and its appearance, two
concepts I have discussed at length above. They are not the real issues we should be addressing. The
real problem in the American political system is not “corruption,” because corruption is ultimately
an amorphous concept that lacks an agreed-upon definition. Indeed, our overwhelming focus on
corruption in its many forms and guises, as I tried to argue above, only serves to pulls our attention
from pinpointing what lies at its root. Thus, the real problem must be something else.
IS MONEY THE PROBLEM?
We all know that money incentivizes public officials, who are constant need of it to win
office, to lend their ears to their funders instead of to their constituents (although, in some cases, we
must acknowledge that their funders may also constitute a small share of their constituents too). In
addition, money makes the playing field unequal for the rest of society’s citizens because those who
have money also invariably have more influence over the political process. Professor Lessig points
us to both problems in his important book, but these are problems that have nothing to do with
“corruption” in the ordinary sense that the average person would understand that term. The
existence of these problems does not mean that there is necessarily corruption afoot.
Perhaps the problem in the campaign finance system is not one of corruption but of money.
Money, according to one line of thinking, is at the root of all corruption. One thing that money does
102
Robert F. Bauer, The Varieties of Corruption and the Problem of Appearance, 125 HARVARD LAW REVIEW 91, 91
(2012).
103
Id. (emphasis in original).
21
is it influences the outcome of political campaigns.104 Another is that is provides a greater voice to
those who have it than to those who do not.105 The system, as structured, effectively allows people
to cast as many votes as they have dollars in their bank account, thus giving preference to individual
wallets over individual voices—and, as a result, to individual votes.106 So it is not only money itself
but, specifically, what having money translates into—access to the political arena for some and not
for others—that may be the problem that our political system is facing.
The issue we need to address is how the large sums of money given by a small number of
donors influences the outcomes of electoral campaigns and the decisions made by those who win
these electoral campaigns, namely our representatives in Congress. 107 Thus one way of looking at
what our campaign finance system needs to regulate is the effect of money in politics. The way that I
just stated the issue is not new, and has been adequately expressed by others, including both in
academia and outside of it.108 Indeed, those who have expressed it include Professor Lessig himself,
for these are the issues he tried to address when he refers to “dependence corruption.” Still, as I
have argued, his choice of phrase detracts our attention, and it takes us away from our mission.
What that money does to our political system, how it perverts it and alters it is, then, perhaps the
problem.109 What this phenomenon is called, by contrast, should not be a problem.
On the other hand, not everyone believes that the presence of large sums of money in the
political arena poses a threat to the state of our democracy. 110 Indeed, there are those who argue that
problem with the campaign finance system is not, as the news media and some of the current
discourse implies, that money in elections is “bad,”.that there is too much money in elections, or
even that there are candidates who are willing to spend an enormous amount of their own money to
win office. Nor is it that moneyed interest buy access to politicians and government policy or that,
because there is a wide freedom to spend when it comes to elections in the United States, there is an
104
See DARRELL M. WEST, CHECKBOOK DEMOCRACY: HOW MONEY CORRUPTS POLITICAL CAMPAIGNS (2000).
105
See MARTIN H. REDISH, MONEY TALKS: SPEECH, ECONOMIC POWER, AND THE VALUES OF DEMOCRACY (2001).
106
See the discussion on this issue in Charles, Corruption Temptation, at 34-36.
107
There is a large literature concerning the role of money in politics. JEFFREY N. BIRNBAUM, THE MONEY MEN: THE
REAL STORY OF FUND-RAISING’S INFLUENCE ON POLITICAL POWER IN AMERICA (2000); and ANTHONY GIERZYNSKI,
MONEY RULES: FINANCING ELECTIONS IN AMERICA (2000).
108
See ROBERT G. KAISER, SO DAMN MUCH MONEY: THE TRIUMPH OF LOBBYING AND THE CORROSION OF AMERICAN
GOVERNMENT (2009).
109
Daniel Lowenstein believes that the payment of money to sway the decisions of a person in public office is a practice
that is anti-American and that our abhorrence of it is rooted deep in our culture. Daniel Hays Lowenstein, On Campaign
Finance Reform: The Root of All Evil Is Deeply Rooted, 18 HOFSTRA LAW REVIEW 301, 302 (1989).
110
See, e.g., Bradley A. Smith, The Myth of Campaign Finance Reform, in ROBERT G. BOATRIGHT (ED.), CAMPAIGN
FINANCE: THE PROBLEMS AND CONSEQUENCES OF REFORM (2011); BRADLEY A. SMITH, UNFREE SPEECH: THE FOLLY
OF CAMPAIGN FINANCE REFORM (2001); and Bradley A. Smith, Faulty Assumptions and Undemocratic Consequence of
Campaign Finance Reform, 105 YALE L. J. 1049 (1996).
22
unequal distribution of resources in the political arena. Richard Hasen has famously popularized
this line of argument and referred to it as the political equality interest in campaign finance.111
Rather, while these may all be problems, they still do not get to the root of what ails our
democracy. And the root of the problem, I wish to suggest, is actually that our campaign finance
system operates in a pluralist society that contains a basic conflict between two values that are
critical. The first is political freedom and the second is political equality. The problem, simply put,
is not money, but rather the way that the Supreme Court has resolved this underlying conflict. Its
decisions have tended to favor the political freedom to spend at the expense offering its citizens
equal political representation. This choice, in turn, has negatively affected the operation of election
and has profoundly changed the nature of elections in our political system.
Viewed from this light, neither corruption nor money is the real challenge we face. Rather,
the challenge is that American society possesses conflicting values that our political institutions are
incapable of resolving by themselves. At times, different institutions view campaign finance reform
differently, so much so that they are often in conflict with each other.
What it is that prevents Congress from being able to regulate the role that money plays in
politics? Here, the answer is that it is the narrow doctrinal straightjacket that has been imposed on
campaign finance regulations by the Supreme Court, which has found that only two rationales,
namely preventing corruption and the appearance of corruption, exist for upholding contribution
limits without running afoul of the First Amendment. If if a majority of the Supreme Court were
constituted differently, then a different, perhaps broader reading of the First Amendment might lead
to different justifications being allowed for campaign finance reform. Viewed in this way, the
problem with campaign finance reform is not the First Amendment. Rather, it is the reading given
to the First Amendment by a narrow majority of the Supreme Court. Although lawyers are loathe to
admit it or to say it in print, the real problem here may just be the Supreme Court itself.
Professor Lessig has helped us to understand the fact that we face a problem that is
“institutional” in nature. But what he and others do not say is that the Supreme Court is another
institution that plays a role in our campaign finance debates. And its role, I am arguing, needs to be
reassessed. If it so happens that it is the Supreme Court’s view that limiting campaign expenditures
and some forms of campaign contributions violates the First Amendment, and if it is also its view
that combating corruption and its appearance are the only doctrinal justifications for reform, then
one way for reformers to proceed is to bypass the Court and to cut it out of the equation.
THE ROLE OF THE SUPREME COURT
Congress is not likely to want to adopt a major campaign finance regulation only to see it
struck down for violating the right to free speech. Thus, the greatest challenge for campaign finance
111
RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V.
GORE (2003).
23
reformers involves coming up with a way to regulate the campaign finance system without running
afoul of the First Amendment. 112 Obviously, any “law” that acts to regulate the system will have to
withstand a challenge in the courts, and may wind up before the Supreme Court itself.
Many of the recent debates in election law have pitted advocates of two camps against each
other. On the one side are scholars of process theory, such as Richard Pildes and Samuel Issacharoff,
who view “stoppages in the democratic process,” as John Hart Ely referred to them,113 as a failure in
the democratic market which justifies judicial intervention to alleviate our partisan political
“lockups.” 114 On the other side are scholars like Richard Hasen, who advocate theories based of
“political equality” to justify—or, sometimes, limit—the role of the courts in regulating the political
process.115 Yet both of these approaches do not apply well in the campaign finance arena, and they
also both give too much deference to the courts—in particular, to the Supreme Court. In both cases,
these scholars look to the courts to answers. Pildes and Issacharoff are looking for judicial
intervention to rescue a political process that is mired in gridlock. Hasen wants the courts to make it
so that there is a level playing field for all citizens who participate in the political process.
Seeking solace from the courts overlooks the fact that the courts themselves, including the
Supreme Court, may be “locked up” in a political struggle and not capable of moving forward. In
fact, when it comes to questions of election law, the courts often find themselves in no different a
position from the legislature. An example is in remedying partisan gerrymandering. Most
Americans think that gerrymandering is one of the greatest evils afflicting their democracy,116 and
yet the courts have not been able to agree on whether such an issue is even justiciable, much less
agree on what standard should govern in resolving gerrymandering disputes that may arise.117
Despite this, those who champion reforming the campaign finance system keep looking to
the Supreme Court for a remedy. For instance, in an important article, Professor Richard Hasen
extolls progressive thinkers on campaign finance reform to refrain from what he calls three
misguided approaches to reform.118 The first involves seeking to amend the Constitution to overrule
Citizens United. The second includes paying lip service to reform, as Hasen argues President Obam
112
See ANTHONY CORRADO, CAMPAIGN FINANCE REFORM 96 (2000).
113
JOHN HART ELY, DEMOCRACY AND DISTRUST 117 (1980).
114
See Samuel Issacharoff and Richard H, Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50
STANFORD LAW REVIEW 643 (1998).
115
See RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW 7 (2003).
116
[Long footnote here]. However, for a contrary view argued that gerrymandering in fact improves the perception of
Congress, see Thomas L. Brunell, Rethinking Redistricting: How Drawing Uncompetitive Districts Eliminates
Gerrymanders, Enhances Representation, and Improves Attitudes toward Congress, PSOnline ((January 2006),
available at http://www.utdallas.edu/~tbrunell/papers/packeddistricts.pdf (visited February 22, 2014).
117
Vieth v. Jubelirer, 541 U.S. 267 (2004).
118
Richard L. Hasen, Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform,
HARVARD LAW AND POLICY REVIEW (2013), at 3.
24
has done, without taking any concrete steps to fix a broken system. 119 And the third bad idea is to
give up, throw in the towel, and do nothing.120 Instead, Hasen wants us to defend what remains of
campaign finance law, move the action regarding campaign finance reform to the state level, and
hope that the Supreme Court overturns Citizens United.121 “The key,” writes Hasen in framing his
argument, “is to lay the groundwork for the Supreme Court to reverse Citizens United and other
cases, returning to its role of carefully balancing rights and interests in this very difficult arena.
There will come a time in the not too distant future when Justice Scalia and Justice Kennedy will
leave the Court, and if a democratic president appoints their successors, the Court’s campaign
finance jurisprudence easily could turn back 180 degree to its pre-Alito days.”122
This, I think, is wishful thinking. It is part of a trend of writing by progressives in the
campaign finance area that seeks to educate the Supreme Court, and to lay the evidentiary record for
the future campaign finance reforms to at least be defended in court.123 The reason this is wishful
thinking is because these arguments are aimed at a Court that Professor Hasen thinks maybe can or
cannot be moved and that Professor Lessig thinks can be moved just by the way we define the word
“corruption”—that tricky word that the Court uses in its balancing.
These approaches each debate whether, when, and the extent to which the Court should
intervene in congressional campaign finance regulations; whether the Court’s past reasoning has
made jurisprudential sense; and whether its present reasoning is consistent with prior rulings. Both
camps believe that the majority of the current Supreme Court is unlikely to overturn Buckley v.
Valeo anytime soon,124 and yet, surprisingly, each of frames its advocacy in terms of an appeal to
the Supreme Court, seeing it as the institution of last resort.125
What these approaches fail to see is that the courts—including the Supreme Court—are
themselves institutional settings in which campaign finance regulations are made. Along with
Congress, the courts act as a second institutional player in the complex game of allowing, or
striking down, various campaign finance regulations. Like Congress, the courts are given full veto
119
Id. at 9-12.
120
Id. at 12-15.
121
Id. at 15-16.
122
Id. at ____.
123
See, e.g., Renata E. B> Strause & Daniel P. Tokaji, Between Access and Influence: Building a Record for the Next
Court, DUKE JOURNAL OF CONSTITUTIONAL LAW AND PUBLIC POLICY (2014), at 1.
124
See Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in ROBERT G. BOATRIGHT (ED.), CAMPAIGN FINANCE:
THE PROBLEMS AND CONSEQUENCES OF REFORM (2011), supra note 14, at 30-32.
See, e.g., Richard L. Hasen, Is “Dependence Corruption” Distinct from a Political Equality Argument for Campaign
Finance Laws? A Reply to Professor Lessig, University of California, Irvine, School of Law, Legal Studies Research
Paper Series No. 2013-94, at 2 (2013) (“There could well be a time within the next decade when a more liberal Supreme
Court majority may consider overturning recent precedent and allowing more regulation …. In the end, the debate …
the debate helps elucidate the best and worst types of political equality arguments to advance to a future Supreme Court
and American public”) (emphasis added).
125
25
power over the shape and contours of what the next regulations in the campaign finance arena look
like.126 To the extent there has recently been a call for scholars to take an institutional approach to
election law scholarship, it has stopped short of including the Supreme Court in is umbrella.
A DIFFERENT PATH
I’d like to propose a different path. According to it, advocates of campaign finance reform
need to begin to think of the Supreme Court as an institution. Of course, we know it is an institution,
but I mean as a political institution. Although they are selected in a different way, the justices of the
Supreme Court ultimately influence what our society looks like, much like members of Congress do.
But why does the Supreme Court get treated differently from the other branches? It is appointed
differently, its members do not stand for elections, and the justices do raise money for their own
political campaigns. All of these things are true, and obvious.
Courts, including the Supreme Court, are simply to be viewed as institutional settings in
which campaign finance regulations are made. Like Congress, the courts act as players in a complex
game when they allow (or strike down) campaign finance regulations. Like Congress, the courts are
given full power to shape the contours and regulations in this arena. To the extent that there has
recently been a call for scholars to take an institutional turn in election law scholarship, it has
stopped short of seeking change in the way we view courts.
The Supreme Court functions as an important institutional player in regulating campaign
finance. By deciding which laws can stand and which cannot, our Supreme Court sets the prism for
our campaign finance discourse. To date, the Supreme Court has chosen to frame the issues
surrounding the regulation of money in political arena as a fundamental issue of free speech. As a
result, for almost four decades now, reform efforts have been concerned with how we may regulate
the campaign finance system without running afoul of the First Amendment.127 After all, Congress
is unlikely to adopt a major regulation only to see it be struck down for violating free speech. Or so
the thinking goes. But to succumb to this line of thinking is also to believe that the Supreme Court
has to have the last word to the subject. But can we also imagine a world where it does not?
SOME REFORM PROPOSALS
Many of the strategies for regulating corruption have sought to function within the
institutional structure we have and have not sought to change that institutional structure. Though
there did once exist a “court-packing plan” under President Roosevelt, 128 no one is seriously
As the social scientists James March and Johan Olson once explained: “The state is not only affected by society but
also affects it. [As a result,] political democracy depends not only on economic and social conditions but also on the
design of political institutions.” James G. March and Johan P. Olsen, The New Institutionalism: Organizational Factors
in Political Life, 78 AMERICAN POLITICAL SCIENCE REVIEW 734, ___ (1984).
126
127
See CORRADO, supra note 112, at 96 (2000).
Franklin Roosevelt’s “court-packing plan” proposed to add more justices to the Supreme Court to obtain favorable
rulings regarding New Deal legislation that had been struck down as unconstitutional. The Judicial Procedures Reform
128
26
advocating changing the composition of the Supreme Court today. Indeed, the number of the
justices has remained stable since 1869, and changing that number would not be politically
feasible. 129 There are other reform proposals, more practical than the above, that involve
implementing greater disclosure requirements on campaign donors130 For example, Ciara TorresSpelliscy, suggests that shareholders in corporations be given a say about the use of corporate funds
that given to political campaigns. 131 Her idea is to force companies to disclose their donations,
above and beyond a certain de minimus amount, and she wants this to be done by providing
information about the spending of corporate expenditures to political campaigns directly to the
corporation’s shareholders and by getting the consent of the shareholders before spending occurs.132
While the idea is a good one, the issue again is that it would have to be passed in the form of
a law and, in that sense, is not very different from the other proposals proposing to regulate
campaign finance reform now. For that reason, I would propose that Congress passes “internal laws”
akin to the House and Senate rules that govern the conduct of representatives. The place to begin is
Article I, Section 5, Clause 2 of the Constitution, which provides Congress with the authority to
discipline its own members 133 However, it is only within the last 40 years that Congress has
seriously and systematically undertaken disciplinary measures on itself.
Until more or less the 1960’s, Congress had declined to establish formal rules of conduct
and exercise its powers to disciple its members. These powers included not only expulsion but also
censure, reprimand, letters of reproval and letter of admonition, and financial restitution.134 In 1958,
Congress then adopted a 10-point general Code of Ethics for Government for officials and
employees. The Senate Select Committee for Standards of Conduct was created in 1964, and the
Bill of 1937 would have granted the President the power to appoint an additional Justice to the Supreme Court, up to a
maximum of six, for every member of the Court over the age of 70 years and 6 months. For historical background on
this, see the work of MICHAEL E. PARRISH, THE HUGHES COURT: JUSTICES, RULINGS, AND LEGACY (2013); JEFF
SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT (2010); and NOAH FELDMAN: SCORPIONS:
THE BATTLES AND TRIUMPHS OF FDR’S GREAT SUPREME COURT JUSTICES (2010).
129
The Constitution places the power to determine the number of Justices in the hands of Congress. The Judiciary Act
of 1789, set the number of Justices at six, creating on Chief Justice and five Associates. Over the years Congress has
passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869
fixed the number of Justices at nine. No change to the number of Justices has occurred subsequent. See
http://www.supremecourt.gov/faq.aspx (visited on March 3, 2014).
130
See Ciara Torres-Spelliscy, Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics after Citizens
United and Doe v. Reed, 27 GEORGIA STATE UNIVERSITY LAW REVIEW 1057, 1102-1104. (2011); Torres-Spelliscy,
Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics, 12
CONNECTICUT PUBLIC INTEREST LAW JOURNAL 139 (2012).
Ciara Torres-Spelliscy, Corporate Political Spending and Shareholder’s Rights: Why the U.S. Should Adopt the
British Approach, in Risk Management and Corporate Governance ( Jalilvand & Malliaris,eds. 2011), at 393.
131
132
Id. at 418.
U.S. CONST., art. I, sec. 5, cl. 2 (“Each House may determine the Riles of its Proceedings, publish its Members for
disorderly behavior, and, with the Concurrence of two thirds, expel a Member…”)
133
134
See CRS REPORT FOR CONGRESS, HISTORY OF CONGRESSIONAL ETHICS ENFORCEMENT at 1 (February 24, 2005).
27
House Committee on Standards of Official Conduct in 1967. In 1968, the House and Senate adopted
financial disclosure regulations for members, officers, and standard employees.135
There are of course other regulations governing the activities that a member of Congress
cannot engage in, and the bulk of these come in the form of criminal statutes. For example, a series
of laws in Title 18 of the U.S. Code make it a federal crime for member of Congress to solicit or
receive bribes for the performance of any official act, 136 solicit or receive anything of value for
himself because of an official act performed, 137 receive any compensation for in relation to any
proceeding or controversy to which the United States is a party, 138 or buy votes, promise
employment, solicit political contributions from federal employees, or threaten the job of a federal
employee who fails to give a campaign contribution. 139 However, these latter regulations again
come in the form of statutes.
But beginning in 1958, Congress began to adopt formal codes of conduct.140 The source for
this power was Article I, Section 5 of the Constitution, cited above. For violating its ethical rules,
Congress can expel one of its own members, although it has so far been extremely reluctant to use
this severe form of punishment. Only fifteen senators and four representatives have ever been
expelled from Congress, although many more have resigned to avoid expulsion).141
However, the code of ethics that was initially adopted by Congress was hortatory and had no
legal force. Ten years later, however, the House and Senate separately adopted new rules intended
to help prevent conflicts of interest in Congress. The new rules spelled out conditions under which
senators could accept money at fund-raising events and the use toward which contributions could be
put, prohibited senators and employees alike from soliciting campaign funds, and required senators
and employees earning above a certain income to file financial disclosure forms with the U.S.
comptroller general.142 The House rule on financial disclosure, unlike the Senate rule, required that
the information be available to the to the general public.143 Finally, in 1977 the House and Senate
adopted separate but this time largely similar codes of ethics for their members and employees. 144
This time the codes placed an limit on outside earned income—set at 15% of the congressional
salary—and, among other things, now required members of Congress to make public data on their
135
Id. at 3.
136
See 18 U.S.C. 201c.
137
See 18 U.S.C. 201g.
138
See 18 U.S.C. 203a.
139
See 18 U.S.C. 597-606.
140
CONGRESSIONAL ETHICS: HISTORY, FACTS, AND CONTROVERSY 9 (1992).
141
CONGRESSIONAL QUARTERLY, GUIDE TO CONGRESS 944 (5th ed. 2000).
142
Id. at 945.
143
Id.
144
Id. at 948.
28
income, gifts received, financial holdings, debts, securities, commodity transactions, and real estate
dealings. Spouses had to report the same information as well.145 Further ethical codes have been
passed on several occasions since, including an important set of provisions in 1999.146
It deserves to be admitted that these ethics committees are only as effective as the public’s
perception of wrongdoing.147 But Congress must go further and now adopt ethical standards for
itself regarding campaign finance reform. The goal is to get members to police themselves by
instituting disclosure requirements and self-policing. [say more]
Mark Warren criticizes justifications for regulating the corruption that are based on “trust in
government” theories, which in his view are akin to ethical codes of conduct, such as those put forth
by the Senate Ethics Manual. But to the extent these theories of regulating appearances can to
transform existing ethical obligations into institutional norms, this is a good thing. 148
Finally, given that new legal challenges to any potential changes to the current campaign
finance regime will be inevitable,149 any new regulation can only pass through ethics committees
and cannot become statutes. This should be made a new way to regulate, although it does not
answer the question having to do with whether this will encourage new or unforeseen consequences
to undermine the effectiveness of the new rules.150
CONCLUSION
Often in life, how we define a problem itself becomes a problem. That is certainly true when
it comes to the narrow conversations that the Supreme Court has forced us to have concerning
campaign finance reform. In an effort to buck that trend, I have sought move us away from the
Supreme Court’s straightjacket to a place where we could begin a different kind of conversation.
Building on Professor Lessig’s work, I want us to look at campaign finance regulation from
a more institutional perspective. When an institution will not allow reform to proceed, we need to
think of a way around that roadblock. In searching for a way to circumvent the narrow framework
introduced in Buckley, it would seem that a viable alternative would be to think about changing the
way that campaign finance regulations are promulgated (and implemented). One option is to
proceed along internal congressional rules or a Code of Ethics, with policing of campaign finance
codes done by the representatives, so as to void a challenge in the courts. This would require novel
145
Id.
146
Id. at 978.
147
CRS Report, at 9.
148
Warren, supra note 59, at 162.
149
For the most current version, see McCutcheon v. Federal Election Commission, ___ U.S. ___ (2014).
150
A related, but conceptually distinct, question is what changes can be made that will preclude the motives of political
actors of their campaigns to circumvent the law as well.
29
commitments. At the end of the day, however, they would be no greater than those we would need
to get from Congress to pass the same campaign finance regulations in the form of a statute.
True reform cannot go through the Supreme Court. Rather, it must begin with Congress
passing ethical guidelines to impose campaign contribution disclosure on its own members, to
impose contribution limits on its members, and to have members police each other to abide by these
rules—or risk expulsion from Congress. At the end of the day, my proposal will not provide an easy
solution to what is and has always been a difficult problem. But the reforms are necessary, and they
will only be hastened when legislatures and courts, as two institutions that each play a role in
regulating the role of money in politics, are placed on a more equal footing. The sooner we begin
discussing reforms like these, the sooner we can cease debating the meaning of corruption.
\
30