Originally published in The Daily Journal.
The existing campaign financing system is a major source of corruption in the U.S., but limiting private contributions is viewed by the U.S. Supreme Court as limiting free speech — money is speech. And there is little hope that the court will change its mind or that a constitutional amendment can be passed to address the problem. So what if, instead of focusing on contributions, we penalize those who gain substantive, material favors for their contributions and those who grant such favors for receiving contributions? Limitations would not be imposed on what one can give, but rather on what one can get.
One may say that such limitations are already in place. Courts have held that corruption can be deterred through transparency and disclosure requirements. In McCutcheon v. Federal Election Commission (2014), the Supreme Court said, “disclosure of contributions minimizes the potential for abuse of the campaign finance system [and] may also ‘deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.’” But in reality, these requirements do not suffice to curb corruption. Despite frequent reports about correlations between contributions by special interests and payoffs to them, there are no indications that such arrangements are in decline.
The McCutcheon court also held that whatever reductions in corruption result from limiting contributions are not worth the loss in free speech, as they “intrude without justification on a citizen’s ability to exercise ‘the most fundamental First Amendment activities.’” A rule penalizing those who gain through contributions side-steps one of the court’s chief concerns.
To implement such a rule, the court must hear cases that seek to expand the definition of “quid pro quo,” which is defined too narrowly. Illegal quid pro quo should be understood to take place when a person contributes to an elected official who acts to provide substantial benefits to the contributor, but not to others. If a change in law benefits the members of a particular industry or labor union, and these special interests contributed to the elected officials who introduced the beneficial act, then we have a case of quid pro quo.
An illustrative case is the relationship between the vitamins and supplements industry and Sens. Orrin Hatch and Tom Harkin. They co-sponsored the Dietary Supplement Heath and Education Act of 1994, which defined supplements as food rather than drugs, allowing the supplements to be marketed and sold without the oversight and safety testing required of the latter. Since that time, they have continued to mobilize senators to vote against legislation to regulate the supplements industry. They pressured the Senate to vote down Sen. Dick Durbin’s amendment to the 2012 FDA Safety and Innovation Act, which would have required supplements with potentially serious side effects to be labeled, and Sen. John McCain’s 2010 Dietary Supplement Safety Act, which would have required “manufactures to register with the FDA and fully disclose the ingredients.” They also pressured FDA officials to weaken their draft Dietary Ingredient Guidance.
Harkin and Hatch’s efforts are a major reason that unregulated supplements suffer from poor “quality control and inspection,” with a 2013 study finding that herbal supplements often contain unlabeled fillers or contaminants and that fully a third “contained none of the plant extracts indicated on the product label.” “Herbal-Supplement Scam: Tests Reveal Fake and Dangerous Ingredients,” Yahoo News, Nov. 4, 2013. The two senators are the top recipients of donations from this industry for decades. “Embrace the Irony,” New Yorker, Oct. 13, 2014. This is only an example — there are numerous cases of such quid pro quo.
Some donors argue that they give because they share the “philosophical” positions of the candidates. However, if they do not distribute their funds among those who share their position, but only those who “deliver the goods,” this defense should not be allowed to stand. This is particularly the case when the elected officials hold opposing philosophies on the matter at hand, the role of the government and of regulation, as Hatch (a Republican) and Harkin (a Democrat) do.
For a penalize-those-who-gain-through-contributions system to work, we must overcome the court’s narrow interpretation of “quid pro quo.” According to campaign finance and corruption expert Zephyr Teachout, in McCutcheon, the “landmark case that threw out aggregate limits on campaign spending,” Chief Justice John Roberts “made clear that for the majority of this current Supreme Court, corruption means quid pro quo corruption. In other words, if it’s not punishable by a bribery statute, it’s not corruption.” “What John Roberts Doesn’t Get About Corruption,” Politico, April 14, 2014. This is a crucial distinction because the court interprets bribery statutes to require the government “prove a link between a thing of value conferred upon a federal official and a specific ‘official act’ for or because of which it was given.” U.S. v. Sun-Diamond Growers of California (1999).
According to Justice Antonin Scalia, “‘quid pro quo’ … captures the notion of a direct exchange of an official act for money” (McCutcheon), and according to Justice Anthony Kennedy, the “risk of quid pro quo corruption is generally applicable only to ‘the narrow category of money gifts that are directed … to a candidate or officeholder’” (same), and diminishes if intermediaries are involved. Even Justice Stephen Breyer, who dissented from this narrow view of corruption in McCutcheon, acknowledges that the court “defines quid pro quo corruption to mean no more than … an act akin to bribery.” However, Kennedy’s assertion that “the corruption interest only justifies regulating candidates’ and officeholders’ receipt of what we can call the ‘quids’ in the quid pro quo formulation” gives hope that the court might give more leeway to an alternative approach. McConnell v. FEC (2003) (Kennedy, J., concurring in part).
The narrow definition of corruption is evident in both Citizens United v. FEC (2010) and McCutcheon, where the court cited earlier cases in asserting that “restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements” (emphasis added), making campaign finance limits a “prophylactic measure” rather than a cure.
In a private meeting, a high ranking official of the U.S. Department of Justice pointed out that the department understands quid pro quo to have taken place only when the donor explicitly ties granting the donation to the condition of receiving some benefit. If a congressional committee is about to vote on whether to grant a special favor tailored to match only a single donor, and that donor indicates that he will make a major donation after the vote, or half before and half after, and members of the committee then vote in line with the interests of the donor, it does not qualify as quid pro quo under current law.
This is a matter that reasonable people — that is, a jury — could read differently, and an issue the public could more readily understand than campaign finance limitations. The court has shown that to maintain its legitimacy, it pays mind to what the public considers legitimate. The next steps are to find people harmed by a law, e.g., by taking unregulated vitamin supplements and sue the industry’s association for preventing regulation. As the case rises through the system, courts can grapple with the definition of “qui pro quo.” This is likely to work only if accompanied by a major public movement in support.
Donations may be made indirectly via lawyers, lobbyists or third parties. Those intermediaries should be required to disclose that donations are not from their own pocket. And whistleblowers, congressional staffers and corporate staffers must disclose what the intent of the donor was and of those who paid back.
It is enough to punish just a few CEOs and elected officials — those whose quid pro quo is most evident to deter many others. These offenders are much more sensitive to legal actions than drug dealers. That markups have been cut back under public pressure supports the thesis that the public, which seems very difficult to mobilize to support limiting campaign contributions, might be much more ready to support limiting bribes.