by Barb and Kellye
This is the third in a series of four posts outlining the 7 major questions considered by the Supreme Court in making its Citizens United decision ( Part 1, Part 2). This post deals with two more of those major questions. One of these questions involves what corruption test should be used to determine whether campaign finance laws are needed to restrict political spending. The other question asks whether the “appearance of political corruption” erodes the public’s confidence in the democratic process. As stated at the beginning of the series, Justice Kennedy wrote the majority opinion and Justice Stevens the minority opinion.
Be sure to read to the end of this post to find out what the Supreme Court decided to do today.
Is strict quid pro quo the only political corruption that the government must guard against in political spending?
Strict quid pro quo is the only kind of corruption that merits government controls on political spending. [Quid pro quo is an identifiable exchange of a donor’s contribution for an official act by the elected candidate.] Large independent political expenditures do not constitute a risk of corruption or “appearance of corruption” sufficient enough to overcome 1st Amendment rights. “There is only scant evidence that independent expenditures even ingratiate…..ingratiation and access, in any event, are not corruption.” (Chief Justice Roberts, in his written concurrence, reasons against the precedent set by Austin v. Michigan Chamber of Commerce, in which the Court ruled that large corporate independent expenditures do constitute a risk of corruption or the “appearance of corruption.” Roberts goes on to cite times in the past when the court necessarily had to go against precedent in making its ruling.)
Even if not a strict quid pro quo exchange, large independent political expenditures do increase the risk of corruption or the “appearance of corruption.” “The difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Corporations can gain favorable political access and influence with unchecked political spending. “On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an ‘undue influence on an officeholder’s judgment’ and from creating ‘the appearance of such influence’ beyond the sphere of quid pro quo relationships.” Stevens cites several cases where the Court never suggested that “quid pro quo debts must take the form of outright vote buying or bribes.”
Does the “appearance of corruption” erode the public’s confidence in the democratic process?
The “appearance of corruption” in elections is not a factor that should be emphasized. “The fact that speakers [those spending money on political speech] may have influence over or access to elected officials does not mean that these officials are corrupt.” There is no reliable evidence to substantiate the idea that the “appearance of corruption” (influence or access) erodes the public’s confidence in the democratic process.
There are several court cases, including Buckley v. Valeo and First National Bank of Boston v. Bellotti, which provide precedent for the recognition that the “appearance of corruption” in elections is an important factor to be considered and that it does affect the public’s confidence in the democratic process. “A large majority of Americans (80%) are of the view that corporations and other organizations that engage in electioneering communications, which benefit specific elected officials, receive special consideration from those officials when matters arise that affect these corporations and organizations.” If the American people have the impression that corporations dominate our democracy, “they may lose faith in their capacity, as citizens, to influence public policy.” As a result of this, citizens may have a reduced desire to exercise their right to vote. “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
[A new development has occurred today in the realm of campaign finance law. The Supreme Court has agreed to hear a case on whether it is constitutional to limit campaign contributions. (Remember this is different from the Citizens United decision where the Court ruled that there could be no limits on political spending as long as it was independent of a campaign). If the Court rules that campaign contribution limits are unconstitutional, it will be in direct conflict with Justice Kennedy’s reasoning in his majority opinion in Citizens United in regards to quid pro quo. Kennedy relied heavily on Buckley v. Valeo in making the general case for the majority. In particular, he used the same rationale that was used in Buckley v. Valeo to make the case that there is almost no potential for quid pro quo corruption with independent political spending as compared to campaign contributions. Therefore, the government has an interest in restricting campaign contributions, but not in restricting independent political spending.]