The U.S. Supreme Court’s decision last week in McCutcheon v. Federal Election Commission – which struck down limits on the aggregate amount any one individual could contribute to multiple candidates during a single electoral cycle – has attracted a great deal of attention. Indeed, it has already generated so much discussion that I’m not sure I have much to add (particularly given that I’m not a campaign finance expert). But one piece of commentary on the decision caught my eye: on the Wall Street Journal’s blog, Jacob Gershman argues that McCutcheon is not just about the clash over the value of political speech and the effect of money on political integrity, but “at a more basic level” the decision is about “how to define the concept of ‘corruption.’” Many of my colleagues in the legal academy – several of whom are quoted in Mr. Gershman’s post – agree with that assessment, as does Justice Breyer in his dissenting opinion in McCutcheon. But I don’t think it’s quite right—or at least it’s only partly right.
The dispute in McCutcheon is not really about whether forms of political contributions that do not involve the reality or appearance of a quid pro quo can count as corruption. Rather, the dispute is about whether the interest in regulating those other forms of political spending (and political influence) is strong enough to justify restrictions on political spending (which the Court has controversially characterized as restrictions on speech). We can assume (as do all the Justices) that Congress may restrict political spending in order to avoid the appearance of quid pro quo corruption. We can also assume that there are other forms of political spending that do not involve a clear quid pro quo (or the appearance of same), but that nonetheless give donors privileged access, enhanced influence, special consideration, etc. The legal question before the Court in McCutcheon and similar cases is whether the interest in limiting the latter form of influence is strong enough to justify restrictions on political spending/speech. Whether we define that latter sort of influence as “corruption” or as something else doesn’t really help us answer that fundamental question (unless we decide – tautologically – to define as corruption those forms of disproportionate political influence that would justify restrictions on political spending/speech).
Just to elaborate on that point a bit: We could decide that “buying” special access or influence through campaign spending is not corruption and that regulating it is unjustified. We could decide that this practice is corruption and that regulation is justified. But we could also decide that those forms of influence are sufficiently problematic that Congress can regulate them even though they do not count as corruption; we could also decide that they even if they do count as a kind of “corruption”, regulation is still not justified. Indeed, Chief Justice Roberts suggests that final possibility when he writes, in his majority opinion in McCutcheon, that “while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” This may or may not be sound as a matter of constitutional law, but it illustrates that the dispute in McCutcheon is not primarily about definitions, but about what sorts of influence are so problematic that they justify restrictions on what the Court considers to be a form of political speech.
I do need to qualify that claim with an important caveat: The one sense in which Justice Breyer and others are correct that the dispute in McCutcheon is about definitions has to do with the meaning of prior Supreme Court case law. Earlier precedents (most notably the Court’s 1976 decision in Buckley v. Valeo) stated that the interest in preventing “corruption” (or the appearance of corruption) may justify limits on political spending. And because the U.S. Supreme Court presumptively tries to follow (or tries to appear as if it is following) its own precedents, it becomes important to discern what those earlier cases meant when they used the term “corruption.” Chief Justice Roberts claims that when Buckley and other cases referred to the legitimate interest in preventing “corruption”, they meant quid pro quo corruption; Justice Breyer asserts that the precedents meant to use the term “corruption” in a much broader sense.
But I don’t think that’s what most commentators have in mind when they assert that the dispute in McCutcheon is primarily about the definition of corruption. Most of those commentators seem to think that answering the definitional question (“What is corruption?”) will tell us the answer the normative question (“Are these restrictions on speech/spending constitutional?”). But it won’t, and shouldn’t. The question is (or should be) about how to strike the right balance between protecting political participation rights and protecting the integrity of the democratic process. That’s a substantive question, not a definitional question.