The Supreme Court decided last month that the only way a public official can be corrupted is if there is a quid pro quo transaction - I give you dollars, you in direct return do me political favors. If there isn’t evidence of that kind of outright bribery, the Court said, it’s not corruption.
This new ruling, in McCutcheon v. FEC, put an end to aggregate caps on how much an individual could give to candidates in one election cycle. That cap had been set at $117,000 a total that affected only 646 donors in 2012. That means that those 646 very rich people will be able to give far more in the 2014 election than the more than $75 million they have given in the past.
The McCutcheon ruling came on top of the Court’s previous Citizens United decision, which allows corporations and individuals to give unlimited funds to political action committees, supposedly established to support positions on issues but not candidates.
The Court has now established that there was nothing corrupting about a Las Vegas casino billionaire personally contributing over $100 million in 2012 to PACs and candidates. How much will he give in 2016? I have no idea, but the parade of potential presidential candidates who publicly traveled to Las Vegas last month to submit to his personal review indicates they think it will be enough to compensate them for what looked an awful lot like crawling there on their knees.
Writing for the majority in Citizens United, Justice Kennedy said, “This Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.”
Well, that may be how it looks to five judges sitting on the august bench in the Supreme Court building, but recent polls have shown that Americans have done just that. They have lost faith in the fairness of our system, and they cite how we finance our political campaigns as a major reason.
Norman Ornstein, a resident scholar at the generally conservative, pro-business American Enterprise Institute, wrote in the National Journal about McCutcheon, “More significant, in any case, were Roberts’s sweeping conclusions about corruption and the appearance of corruption in the decision. The Chief Justice took the shaky conclusion reached by Justice Anthony Kennedy in the Citizens United decision - that money given ‘independently’ of campaigns could not involve corruption or its appearance - and applied it in an even more comprehensive fashion to money given directly to candidates and campaigns. “Thanks to McCutcheon, only quid pro quo corruption is sufficient to trigger any restrictions on campaign contributions - meaning, direct bribery of the Abscam or American Hustle variety, presumably captured on videotape for the world to see. The appearance of corruption? Forget about it. Restrictions on elected officials soliciting big money? Forget about them, too.
“To anyone who has actually been around the lawmaking process or the political process more generally, this is mind-boggling. It makes legal what has for generations been illegal or at least immoral. It returns lawmaking to the kind of favor-trading bazaar that was common in the Gilded Age.”
I know after 40 years working in the Senate that outright bribery in Washington is rare. But as Ornstein says, the idea that unlimited money doesn’t corrupt the process is mind-boggling. As a result of these two Supreme Court decisions, we now have a system where a very small and very rich segment of the population can anonymously pour literally billions of dollars into political activity. You and I don’t have any way of knowing who they are, but I promise you the candidates whose campaigns benefit know who they are and what they want.
Don’t take my word for it. Sen. John McCain recently described the two Supreme Court decisions as “the worst since Dred Scott ... We’re at the height of corruption thanks to the United States Supreme Court.” He went on to predict, “a major scandal will happen because there is too much money washing around ... and people don’t know where it comes from.”
Strong words and reason to hope there will be a bipartisan response to the Court’s decisions. I believe the future of our democracy is dependent on a renewed effort to agree on meaningful campaign finance reform.
Ted Kaufman is a former U.S. senator from Delaware, and writes regularly for the News Journal. Contact Ted and read more of his work at tedkaufman.com.