Perspectives on Corruption

Abstract

355 McConnell v. Federal Election Commission1 presented a series of facial challenges to the constitutionality of the complex set of amendments to the Federal election laws codified by the Bipartisan Campaign Reform Act of 2002 (BCRA). In analyzing BCRA, the majority of the Court declined the opportunity to engage in an academic disquisition on the fine points of First Amendment jurisprudence. Rather, they accepted a realpolitik view of the seamy world of political fundraising. Relying heavily on “reams of disquieting evidence contained in the record,”2 the Court upheld most of the law’s provisions as reasonable means of addressing corruption or the appearance of corruption in the financing of elections. Most significantly, the Court upheld the two signature provisions of BCRA, that is, the ban on federal officeholders or national parties soliciting or receiving so-called “soft money” (that which is not subject to federal source restrictions and limits on amounts) and the replacement (at least in part) of the “magic words” test of express advocacy with new restrictions on “electioneering communications” (advertisements which identify federal candidates and are broadcast to the relevant electorate within 30 days of a primary or 60 days of a general election). The views expressed in the majority and dissenting opinions reflect not only contrasting understandings of what the case was about, but also very different perspectives about what constitutes corruption and the appropriate role of money, and corporate money in particular, in political debate. What was striking to me in listening to the oral arguments in both the district court and the Supreme Court was the degree to which the various advocates almost seemed to be arguing different cases. The opponents of the law forcefully argued the critical importance to a vibrant democracy of “uninhibited, robust and wide-open”3 debate of political issues and the centrality of the freedom of political association. These views are compellingly advanced in Justice Scalia’s dissent. Proponents of the law equally eloquently asserted the need to prevent corruption or the appearance of corruption to combat declining public confidence in government, confidence that is undermined by even the appearance that large donors get more access to government officials than the ordinary citizen. One side was arguing a case about the First Amendment, while the other side was arguing a case about corruption. My prediction after the argument was that whichever of these two approaches dominated the opinions would dictate the result. If, that is, the opinions focused on the corruption angle, the law would be largely upheld. If, on the other hand, the Justices primarily addressed the First Amendment, the fate of the law would be in jeopardy. As a quick and dirty measure of my prediction, I had a computer search done of the text of the opinions. The results show that some variant of the word “corrupt” appears more than twice