McCutcheon v. FEC Is a Substantive Clash, Not a Definitional One

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.

7 thoughts on “McCutcheon v. FEC Is a Substantive Clash, Not a Definitional One

  1. Matthew,

    I think doctrinally you’re absolutely right, but I also think that your post, standing alone, is a bit formalistic. It’s true that the Court could say: people donating money to politicians in exchange for privileged access and consideration IS corruption, but that restricting THIS corruption does not fly under the First Amendment. I think that opinion would be extremely difficult if not impossible to write, because the corruption of our democracy certainly seems like a compelling interest.

    The end of the plurality opinion supports your analysis, but I think 4 quotes from earlier in the opinion are in tension with your claim that the plurality does not have a definitional issue with “corruption”:

    (1) Contrasting “corruption” with influence/money in politics:
    “Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”

    (2) Comparing ingratiation and access to “corruption”:
    “In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.””

    (3) Describing “corruption”
    “The hallmark of corruption is the financial quid pro quo: dollars for political favors.”

    (4) Recognizing that its conception of “corruption” is narrower than the plurality’s
    “The dissent advocates a broader conception of corruption”

    • You’re right that this language in the opinion gives the impression that the dispute is about definitions, but I think in context it’s clear that when the majority opinion refers to “corruption” they mean (fairly consistently) “quid pro quo corruption”, even though they don’t always include the modifier.

      But I guess what I want to get at is this:

      If we cast the dispute as definitional — “What is corruption?” — it implies that we can have an abstract discussion about the meaning of the word, and then whatever conclusion we reach can be used to resolve the question of what the 1st Amendment permits. But I don’t think that’s the right way to think about it. Rather, we need to figure out, in this particular context, what regulations we think are justified. Maybe another way to put this is that it’s not that we decide what spending is “corrupt”, and then conclude that the 1st amendment permits us to restrict that spending; rather, we decide what spending the 1st amendment permits us to restrict, and then we label that spending “corrupt.”

      But maybe what’s really going on is that when the justices (or others) are debating the meaning of “corruption”, they’re really arguing about just how bad the effect of non-quid pro quo campaign spending is for democracy — there’s some threshold of badness where we’d label the spending corrupt. At that point the substantive and definitional questions merge. If that’s the best way to interpret the commentary implying that this is a definitional dispute, I have no objection, but then I’m not sure much is added by emphasizing the definitional aspect.

  2. I absolutely agree, and have been a little disappointed with the definitional debate that has followed the McCutcheon decision. However, I’m not sure that “definitional v. substantive” is the right distinction to be making, since definitions can, after all, be substantive.

    But I think the problem with seeing the debate as merely definitional (and why I think your post is so valuable) is that making this a definitional debate reframes the argument as a narrow and historical one, creating the false illusion that there’s a “right” answer to the question of what corruption or the appearance thereof means for these purposes. Perhaps that suits the originalists on the Court. But even though that’s an arguably substantive debate, that mode of argument obscures that there’s a larger and more fundamental question at play — which you’ve reframed so clearly.

  3. The question constitutionally is, as Matt points out, not so much the substantive content of any particular statutory definition of “corruption”. The real question is who decides. The underlying question is whether the judiciary has the institutional capacity to determine which substantive methods of campaign finance are, or are not, creating a danger of actual or apparent corruption. Justice Breyer urges more deference to the legislative branch, which certainly has a lot of experience with the role of money in campaigns. Chief Justice Roberts counters by saying that deference to the legislature should not be unrestrained where fundamental minority speech rights are a stake. But the foundational issue lost in the current debates is the premise of Buckley v. Valeo itself. Why is money treated as pure speech, rather than expressive conduct?

    • I’m no campaign finance expert (as I said in the original post), but I find myself largely in agreement. Buckley set up an odd framework, in which political spending is treated as speech, and restriction of such spending is only justified where such restriction is necessary to prevent “corruption” or the appearance of corruption. Not clear that either of those propositions is correct. Maybe Justice Breyer (and others on his side of this argument) have an impulse to broaden the understanding of “corruption” in order to work around the initial move to treat political spending as pure speech?

  4. I like the way Matthew presents the policy question raised in McCutcheon: “striking the right balance between protecting political participation rights and protecting the integrity of the democratic process.” Rather than closing off discussion with assertions about definitions, it opens the decision to further analysis. The next logical question is: how much damage will the political process suffer by lifting the combined overall limit of $123,200 individuals can give candidates, national party committees and certain political committees? That strikes me as an empirical question: anyone for trying to answer it?

    As an aside, the one class of citizens that will suffer tremendous harm from McCutcheon is the lobbyist class. The overall limit on giving has served that class very well, allowing it to duck giving to Congressmen and Senators by replying to requests for donations with a simple: “Sorry, I am maxed out.” The groans coming out of K Street offices when word of the decision in McCutcheon spread could, I am told, be heard all the way down Pennsylvania Avenue to the Capitol.

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