Dysfunctions
The Political Corruption Legalized by the Supreme Court
By Matt Ford, New Republic, November 5, 2019
Nov 6, 2019 - 9:44:39 AM

When discussing corruption in the Trump era, it’s easy to focus on the most flagrant examples. The Trump Organization announced last week that it plans to sell its infamous D.C. hotel, which gave businesses and foreign governments seeking the White House’s favor a high-profile mechanism to funnel cash into the Trump family’s coffers. Subtlety has never been their strong suit. “People are objecting to us making so much money on the hotel, and therefore we may be willing to sell,” Eric Trump, one of the president’s sons, told The New York Times.

Easier to miss are the more innocuous and pedestrian ways that money—especially large sums of it—shapes American politics. Over the past 15 years, the Supreme Court has aggressively struck down campaign-finance regulations on First Amendment grounds. The system they’ve carved out of Congress’s efforts to constrain public corruption rests upon a series of assumptions that have proven laughable.

Joe Biden’s presidential campaign is experiencing a cash crunch of sorts, with only $9 million in the bank as of last month’s filing report. Some of the vice president’s rivals, including Bernie Sanders and Elizabeth Warren, rely on broad pools of small-money donors who can chip in on a regular basis without hitting the $2,800 federal donation limit. Biden, on the other hand, is more reliant on donors who have already contributed the maximum legal amount to his campaign. That helped him build a substantial war chest when he entered the race six months ago, but has narrowed the opportunities to replenish it.

His campaign’s most recent solution to these money woes was the creation of a super PAC. Federal law limits the amount of money that individual donors can give to a campaign, as well as to how much can be given to party organizations and traditional political action committees. But donors face no such restrictions when giving money to super PACs. There’s a catch, however: Candidates and super PACs are not allowed to “coordinate” their activities, lest that coordination become a means to skirt federal donation limits. The Supreme Court first articulated this divide in the 1974 case Buckley v. Valeo when it struck down federal limits on “independent expenditures,” concluding that the lack of coordination reduced the risk of quid pro quo corruption.

In other words, Biden and his campaign staff can’t create a super PAC themselves or personally ask donors to fund one. They are, however, permitted to take the steps the Biden campaign took last month: reveal to reporters that they’ve dropped their opposition to super PACs and let news outlets publicize that information. As expected, a group of longtime Biden allies quickly organized a super PAC named Unite the Country and began using the funds they accrued to push back against Trump’s attacks. And while these activities are technically independent, they are unabashedly pro-Biden. Larry Rasky, the group’s treasurer, told Fox News that Unite the Country will “do our best to try and level the playing field and to use whatever is in the arsenal to take on lies and defend Biden’s record.”

Under the technicalities of the law, Biden and his campaign can’t coordinate with Unite the Country on strategy and messaging. Were a Biden campaign official to call a super PAC official to, say, urge them to not run attack ads against other Democratic presidential candidates, that conversation could run afoul of federal campaign finance restrictions. But if that same official were to tell journalists that the campaign would be unhappy if Unite the Country attacked other Democratic candidates, the super PAC could receive that message and everyone involved would be on legal terra firma. “Our campaign would be extremely frustrated if the super PAC was used to attack other Democrats,” Greg Schultz, Biden’s campaign manager, told reporters last week.

Biden’s super PAC shenanigans aren’t that extraordinary by recent standards. Hillary Clinton’s campaign also maintained kayfabe with Correct the Record, a well-funded pro-Clinton super PAC that vociferously defended her throughout the 2016 election. It all underscores how the Supreme Court misjudged the importance of independent expenditures in Buckley as well as subsequent cases that relied upon it. “The absence of prearrangement and coordination,” the justices wrote in 1974, not only reduces the risk of corruption but also “undermines the value of the expenditure to the candidate.” The fact that donors are willing to pour millions of dollars into these groups suggests otherwise.

Federal campaign finance laws are supposed to reduce the reality or appearance of corruption in American politics. In recent years, however, this regulatory regime has lent corruption a legal structure in which to flourish.

President Donald Trump will almost certainly face a Senate trial in which the body’s 100 members will decide whether or not to remove him from office for the Ukraine scandal. In recent weeks, he’s aggressively pressured the Senate’s Republican majority to defend his actions in public. Some have declined, noting that they’re likely going to act as jurors in Trump’s Senate trial if the House approves articles of impeachment against him.

That isn’t enough for the president. Politico reported last week that Trump is using his network of donors to bolster senators who defend him while ignoring those who don’t. The news outlet pointed to a recent fundraising pitch from Trump’s re-election campaign that invoked the impeachment fight while offering to split the donations with three GOP senators facing re-election next year: Colorado’s Cory Gardner, Iowa’s Joni Ernst, and North Carolina’s Thom Tillis. “If we don’t post strong fundraising numbers, we won’t be able to defend the President from this baseless Impeachment WITCH HUNT,” the pitch stated. As Politico noted, Maine’s Susan Collins—who didn’t join a Senate resolution criticizing the House’s inquiry—is facing a tough re-election fight but wasn’t included on the list. This week, Trump will host his first joint fundraising dinner of the cycle with a Republican senator this week when he heads to Atlanta to support Georgia’s David Perdue.

Consider the strangeness of this dynamic. If the average American defendant used their influence to direct hundreds of thousands of dollars toward a likely juror in their case, prosecutors would probably consider jury-tampering charges. But when a president facing an impeachment trial funnels campaign donations to senators who hold his fate in their hands, it’s a standard political fundraising tool. Trump isn’t necessarily doing anything illegal. But he’s demonstrating how campaign donations, especially at scale, can amount to an unfair level of influence.

The Supreme Court has struggled with this concept and erred on the side of donors. In the 2003 case McConnell v. FEC, then–Justice Anthony Kennedy argued the dynamic is inescapable in democratic politics. “It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies,” he wrote. “It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.” He later quoted from that passage in his majority opinion in Citizens United v. FEC.

A central theme in Citizens United is that quid pro quo corruption—cash for votes or some other official action, in other words—is the only form that Congress can police without violating the First Amendment. The court’s post-Buckley precedents conclude that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption,” Kennedy wrote. “In fact, there is only scant evidence that independent expenditures even ingratiate. Ingratiation and access, in any event, are not corruption.” Tucked away in his opinion was a prediction of sorts as well. “The appearance of influence or access,” he wrote, “will not cause the electorate to lose faith in our democracy.”

That prediction has not aged well. I wrote last week about the unseemly bipartisan tradition of turning donors into ambassadors, which reached its logical conclusion with Gordon Sondland, the U.S. ambassador to the European Union and a key figure in the Ukraine scandal. What’s striking about him and other donor-ambassadors is that their largest donations didn’t go towards Trump’s campaign. Sondland, for example, donated $1 million to Trump’s inaugural committee. Others gave large sums to the RNC and various Trump-aligned super PACs. It seems like the only people who haven’t figured out that indirect donations can, in fact, purchase direct access and influence are a majority of Supreme Court justices.