As many readers of this blog know, U.S. law on whether (or when) campaign donations can be proscribed by criminal anticorruption statutes is quite complicated, and to some degree unsettled. On the one hand, the Supreme Court has held that campaign contributions are constitutionally protected “speech” under the First Amendment of the U.S. Constitution. On the other hand, U.S. criminal law can and does prohibit campaign donations that are the “quid” in a classic quid pro quo bribery transaction. In other words, it would unconstitutional for the U.S. to prohibit campaign donations to politicians even if such a prohibition is motivated by the generalized worry that politicians might show special solicitude to the interests of their big donors. But it is perfectly constitutional for Congress to prohibit quid pro quo transactions in which a private interest offers a campaign donation as the “quid” in exchange for some “quo.”

It remains an open question, however, what can qualify as the “quo.” Certainly passing legislation, directing federal funding, and securing special regulatory benefits and exceptions would suffice. But what about mere access — an understanding between the donor and elected official that a campaign contribution will get the donor special access to the official? Two recent Supreme Court opinions — Citizens United v. FEC and McCutcheon v. FEC — contain language suggesting that it might be unconstitutional for U.S. law to prohibit an explicit quid pro quo agreement in which a politician offers access in exchange for campaign contributions. According to Citizens United, “[i]ngratiation and access . . . are not corruption,” while McCutcheon cautioned 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” (emphasis added).

Despite this suggestive language, the Supreme Court has not yet had to confront head-on the question of whether the First Amendment protects quid pro quo payment-for-access. The closest it came was last year in United States v. McDonnell (discussed on the blog here, here, and here). In that case, Governor McDonnell helped to arrange meetings between businessman Jonnie Williams and government officials, and accepted personal gifts from Mr. Williams in exchange. By a vote of 7-0, the McDonnell Court reversed the governor’s conviction and construed the federal bribery statute at issue not to cover the governor’s conduct.

But this doesn’t resolve the constitutional question. McDonnell turned on the construction of the existing federal anti-bribery statute, which requires that the “quo” be an “official act,” which the Court construed narrowly as excluding provision of mere access. Moreover, McDonnell was not a First Amendment case, as the alleged bribes were not campaign contributions. Nonetheless, the Court did discuss the concept of corruption in a manner reminiscent of its opinions in Citizens United and McCutcheon. According to McDonnell: “[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. . . . The Government’s position [that McDonnell violated the law] could cast a pall of potential prosecution over these relationships if [a donor] had given a campaign contribution in the past . . . . Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.” Furthermore, McCutcheon — which was a First Amendment case — defined the sort of corruption that could justify restrictions on campaign donations as “a direct exchange of an official act for money” (emphasis added), which might imply that, at least in the campaign donation context, McDonnell’s reading of the anti-bribery statute is constitutionally required.

But is that right? Separate from the question of whether Congress should criminalize payment-for-access, and from the question of whether Congress has in fact done so in the existing federal anti-bribery statutes, is the question of whether Congress could criminally proscribe payment-for-access if it wanted to. In other words, is payment-for-access constitutionally protected? Though some of the Supreme Court’s recent language has suggested such a conclusion, I believe that proposition is wrong, for three reasons:

• First, since the watershed 1976 decision on campaign finance in Buckley v. Valeo, the Court has recognized Congress’s authority regulate even the appearance of corruption. While Citizens United and McCutcheon dismissed most concerns about the appearance of corruption out of hand, it is important to realize the effect of permissible payment-for-access can have on perceptions of even narrowly defined corruption. Meetings between public officials and their contributors (or at least what’s discussed) are rarely matters of public record. There is often little way to know, absent investigation, whether these discussions caused a change in policy. And even if it was the substance of the discussion, rather than the fact of the donation, that changed the policy, the fact that a payment provided the opportunity to exert influence means that money was a critical link in that causal chain. A positive relationship between that access and a desirable policy outcome raises the specter of corruption and undue influence. Trust in the federal government is “near historic lows” In 2012, over 50% of respondents polled by Pew research viewed the federal government as “mostly corrupt.” Giving constitutional protection to payment-for-access will only exacerbate this problem.
• Second, individual prosecutions of politicians are different from regulatory obligations. Citizens United and McCutcheon involved prophylactic regulatory rules. Both opinions suggested such rules are permissible to prevent quid pro quo corruption, but did not directly address prosecutions for such corruption. Even if the Court thinks that prophylactic rules to prevent payment-for-access sweep too broadly, this need not imply a problem with a prosecution for quid pro quo bribery in a specific case. Take an example from McConnell v. FEC. In McConnell, the Court specifically took issue with access “menus” that political parties had written. At the time, a $10,000 annual donation to the Democratic Congressional Campaign Committee entitled donors to listen in on conference calls and to attend private meetings with Democratic leadership. While the McConnell opinion’s reasoning conflicts with much of Citizens United and McCutcheon, it highlights how explicit and outrageous deals for access can be. To the extent courts have been concerned about the chilling effects of prophylactic regulatory rules, quid pro quo prosecutions are far more narrowly tailored.
• Third, and possibly most important, access-based corruption runs contrary to concepts and values inherent in freedom of speech. Since Justice Holmes’ famous dissent in Abrams v. United States, much of U.S. free speech doctrine has been viewed through the lens of the “marketplace of ideas.” Under idealized circumstances, it is an individual’s ideas, rather than his or her contributions, that earn access. But money, when operating as a bribe, distorts this marketplace. In such circumstances, “speech” is not persuasive because of the ideas it promotes, but rather persuades because of its effect on an official’s campaign war chest. Further, public officials have limited availability, and purchased access can therefore crowd out earned access. Taken to its logical extreme, First Amendment protection of pay-for-access could permit an elected official to require campaign contributions before ever arranging a meeting, making a call, or otherwise engaging in regular constituent services.

The robust and sometimes unforgiving doctrine of free speech has long been the lifeblood of free and fair debate in the United States. However, payments for access run afoul of constitutional values and create the appearance of pervasive corruption. To afford them constitution protection is to ensure that those with money not only have the loudest voices in the public square, but also the clearest whisper in our public officials’ ears. It cannot be that the First Amendment works such damaging blows on the very democracy it is designed to protect.