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The Reductio Ad Absurdum of Regulating Corruption

JURIST Guest Columnist Dan Epstein of Cause of Action discusses the upcoming Supreme Court decision in McCutcheon v. Federal Election Commission...

Last month, the US Supreme Court heard arguments in McCutcheon v. Federal Election Commission, a campaign finance case that legal commentator Jeffrey Toobin characterized as "Another Citizens United - But Worse". The issue before the court [PDF] is whether federal limits on the aggregate amounts an individual may contribute to all federal candidates, political parties, and other political committees in a single election cycle are unconstitutional.

Considering the rather broad policy question about contributions and corruption that sets the background for this constitutional fight, my organization, Cause of Action, filed an amicus brief [PDF] that serves as a focused critique of the notion that prophylactics on speech are an effective deterrent of corruption. Aggregate contribution limits were established by Congress in the Federal Election Campaign Act (FECA) because such limits were thought to curb political corruption. The government's key argument is that Buckley v. Valeo held that aggregate contribution limits are not subject to strict scrutiny and therefore, the distinction between contribution limits and expenditure limits is one that squarely distinguishes this case from Citizens United v. Federal Election Commission. What level of scrutiny applies is the sort of technical question courts do not typically depend upon to resolve cases, but they will address if resolving the question obviates the need to consider other jurisprudential issues.

But prophylactics on campaign spending do little in the way of deterring corruption. If you disagree, consider that the Office of Special Counsel (OSC)—an independent agency charged with enforcing the Hatch Act—found, for the first time in American history, that a cabinet secretary violated the Hatch Act by using her official capacity as Health and Human Services (HHS) Secretary to stump for President (and candidate) Obama and North Carolina gubernatorial candidate Walter Dalton. The OSC concluded that Secretary Sebelius violated the Hatch Act. And the law states that if a cabinet secretary violates the Hatch Act, the remedy is removal of that secretary from office. But for a cabinet secretary, who is presidentially nominated, only the President can make the decision to fire (recall that President Bush requested the resignation of Lurita Doan of the General Services Administration —who is not a cabinet member—when she was found to have violated the Hatch Act). President Obama did not fire HHS Secretary Kathleen Sebelius. Instead, the most high-level Hatch Act violation in American history was "cured" because the Democratic National Committee reimbursed the US Treasury for Secretary Sebelius's activity. In other words, the improper political activity was not remedied by fidelity to the law but through a financial payout. For an administration that criticized the decision of Citizens United, the Chief Executive of our country believes that a contribution of funds to the government by a political party would present no issue of corruption and would in fact cure impermissible political activity. This same administration has argued before the Supreme Court that money corrupts politics and that proper application of the law is necessary to end such corruption.

That government regulation has not effectively curbed corruption in Washington is the crux of Cause of Action's argument. We argue this point because we also believe that the government is effectively barking up the wrong tree. So the technical question—that is: whether strict scrutiny applies to aggregate contribution limits—is one we can more closely examine in the context of corruption. Whether strict scrutiny, or a lesser form of scrutiny (the government argues the appropriate standard is that contribution limits are "valid as long as they satisfy 'the lesser demand of being closely drawn to match a sufficiently important interest'") applies, if the government misunderstands corruption and its regulations fail to address corruption, then the interest to be addressed will fail to be sufficiently important and any prophylactic will be poorly designed to prevent corruption. Cause of Action believes that Buckley misunderstood political corruption and misconceives the power that disclosure has today.

First, consider the kind of corruption Buckley sought to address. As the government argues in its brief, "[f]ederal law contains 'an intricate web of regulations, both administrative and criminal, governing the acceptance of gifts and other self-enriching actions by public officials.'" The government argues that these regulations are justified under an "anti-corruption rationale" and that the court's reasoning in Buckley "closely resembles the long-accepted bases for more sweeping restrictions on the receipt by public officials of payments and gifts from persons outside the government." Here is the core of how FECA understood corruption. Corruption is bribery, fraud, the misuse of federal funds, prohibited political activity and the like. Corruption is not money in politics. The latter becomes the former if it involves the type of activity best deterred by administrative and criminal penalties. The government provides neither argument nor evidence showing that spending above the individual aggregate limits would constitute or encourage bribery, fraud or pressure federal officials to engage in political activity. The reason is that the same Department of Justice arguing McCutcheon has, in the last three years, successfully prosecuted more than a dozen cases involving campaign finance violations. The Justice Department has never said to Congress that somehow law enforcement is limited in its ability to prevent election crimes. Nor does that argument display itself anywhere in its brief before the Supreme Court. Prosecuting bribery and fraud prevents corruption; limiting speech doesn't. The 1976 Federal Election Campaign Act amendments transferred nine criminal statutes dealing with campaign financing from the criminal code to FECA. This is how government regulation curbs corruption and it is constitutionally appropriate. The government in McCutcheon has read Buckley to define corruption not as bribery or fraud but as contributing too much money. If the Justice Department believes contributing too much money to elections encourages bribery and fraud, they should tell Congress. That they have not is indicative that the government's argument is less about doing justice than promoting an ideological argument that can be manipulated when it serves the party in power, e.g. when the President criticized Citizens United but thought it appropriate for the DNC to make a contribution to cure a violation of the Hatch Act. The inconsistent application of legislative will is not how a nation of laws should function.

Second, the premise of Buckley—that disclosure of campaign contributions is insufficient to prevent circumvention of individual aggregate contribution limits--is no longer a salient argument. As Cause of Action argues, disclosure in 1974 was substantively different than disclosure today, where campaign contributions are not merely searchable online at the Federal Election Commission, but dispersed through the Internet via sites like OpenSecrets. As we argue, "[a] vast industry of public and private researchers and analysts is primed to receive any contribution filings, cross-check the filings against other records and against patterns and profiles, and instantly report any seeming discrepancies, especially any seemingly large contributions. In light of this new public capacity for instantaneous analysis, the aggregate limits are not needed to protect the individual contribution limits." One need only look at the effectiveness of groups like Citizens for Responsibility and Ethics in Washington and the Sunlight Foundation to note that disclosure holds accountable those who seek to circumvent the law. Hatch Act violations persist and "dark money" has proliferated, yet FECA has not stopped these things nor have federal prosecutions ended their existence. Consequently, such activities have been most effectively exposed and deterred through the sphere of public discussion. It is that sphere that aggregate contribution limits threatens to stifle. As Cause of Action argued: "If aggregate limits shift funding from these challengers to independent expenditures, there may be no innovative, upstart campaigns for the independent expenditures to support."

As a nonpartisan, nonprofit government accountability group, Cause of Action believes that the Supreme Court should strike down the individual aggregate contribution limits because they do not prevent corruption and impermissibly burden speech. Because the sphere of disclosure has revolutionized since Buckley was decided, watchdog groups, reporters and the public can scrutinize, criticize and investigate spending as it occurs. In his tome, On Liberty, John Stuart Mill wrote that the "diversity of opinion" was "an aid to the intelligent and living apprehension of the truth." Let the politically diverse discussion of the American public best judge money in politics, not nine unelected government officials.

Dan Epstein is Executive Director of Cause of Action, a non-partisan organization that uses public advocacy and legal reform tools to ensure greater transparency in government, protect taxpayer interests and promote economic freedom.

Suggested citation: Dan Epstein, The Reductio Ad Absurdum of Regulating Corruption, JURIST - Sidebar, Nov. 4, 2103, http://jurist.org/sidebar/2013/11/dan-epstein-regulating-corruption.php.

This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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