Thoughts from the Menendez Trial: Preventing Corruption from the Start

Last fall’s corruption trial of U.S. Senator Robert Menendez (D-NJ) ended rather anticlimactically, with the presiding judge declaring a mistrial after the jury announced that it couldn’t reach a decision, and the Department of Justice eventually deciding not to retry him. Senator Menendez had been accused of taking donations and gifts from Florida ophthalmologist Salomon Melgen in exchange for advocating for visas for Melgen’s foreign girlfriends, the award of a government contract, and the resolution of a Medicare billing dispute. Plenty of digital ink has already been spilled on the broader implications of the Menendez case for other bribery prosecutions (on this blog here, and elsewhere here and here).

But putting aside the specifics of the case, what caught my eye about the allegations against Senator Menendez was a background feature of U.S. law that seems to have gone largely undiscussed: It’s perfectly legal (and normal) for non-constituents to contribute to political candidates. In other words, even if you are barred from voting for a candidate because you live outside that candidate’s district, you can still express your support by pulling out your checkbook. That lack of constraint on donations seems to invite the very kind of corruption the government alleged in the Menendez case, because it allows a wealthy donor to find and purchase his or her own “personal United States senator.”

I’m certainly not the first person to voice the concern that allowing non-residents to contribute to political candidates may facilitate corruption. Two states—Alaska and Hawaii—have recognized the risk posed by allowing non-residents to contribute to political candidates. They’ve responded by limiting those donations. But in the Lower 48 and in all federal elections, there are no differential limits on contributions from people residing outside the state, so long as they are American citizens or permanent residents. (Alaska’s law is currently facing a First Amendment challenge from an aspiring donor whose gift was returned because the candidate he supported had already reached the out-of-state contribution limits. A federal judge upheld the law as a “closely drawn” effort by the state to prevent “quid pro quo corruption or its appearance,” but the would-be donor has appealed.) Putting aside the constitutional defenses of the sorts of laws that Alaska and Hawaii have adopted (which you can find in the amicus briefs filed in the Alaska case here, here, and here), there are strong policy reasons for limiting contributions by people living outside a state or district—not least because such limits, as the judge in the Alaska case noted, can be a useful tool for preventing corruption or its appearance:

  • Narrowing feature. Limits on who can donate to a political candidate reduces the risk of corruption simply by reducing the number of potentially corrupt relationships. Today, if someone is looking to win a government contract through illegitimate means, it’s easy to go politician shopping. For example, there are 535 members of Congress to choose from—it’s hard to imagine that a dishonest businessperson can’t find just one politician willing to be swayed through outsized donations to use her influence to help the businessperson win a contract (or realize some other benefit). Likewise, a member of Congress seeking a six-figure campaign contribution can cast her gaze nationwide. Of course, limits on out-of-state donations don’t prevent a quid pro quo agreement between residents and their representatives, but they nonetheless limit the scope for potential “shopping” on both sides. A geography-based restriction whittles down the number of donor-donee relationships in a principled way, by promoting the interests of people who live in the district over outsiders who seek to purchase influence.
  • Enforcement difficulties. Campaign finance regulations are tough to enforce—and that problem is exacerbated when donors are numerous and far-flung. When there are fewer donors, it’s easier to spot potentially corrupt relationships. And fewer out-of-state contributors also means fewer problems with rulebreakers operating beyond the reach of state regulators or court judgments.
  • The appearance of corruption. When legislators vote against their district’s interests, advocate for non-constituents, or spend their time traveling outside the district to raise money, constituents begin to wonder who exactly their supposed representative really serves. That disillusionment leads to antipathy and disengagement in our democratic system. The Supreme Court has recognized the vital importance of avoiding policies that “drive[] honest citizens out of the democratic process and breed[] distrust of our government.”

Admittedly, the current climate seems focused on loosening restrictions on political donations and spending. After the Supreme Court struck down federal aggregate contribution limits in 2014’s McCutcheon decision, retired Justice John Paul Stevens complained that the Court had never before “even mentioned a citizen’s supposed right to participate in elections in which he or she has no right to vote.” With nearly 90% of the average member of Congress’s funding coming from outside of the district and just 5% of American zip codes accounting for three-quarters of all political donations, Congress is unlikely to impose such rules on itself anytime soon. And although candidates (especially at the federal level) increasingly rely on outside funding from PACs and political parties, these sources of funding pose less of a risk of corruption than individual donors.

More states are beginning to experiment. South Dakota is currently considering a bill to limit out-of-state contributions on ballot questions to $100,000 per election cycle. Massachusetts activists are petitioning for a ballot initiative to limit outsiders’ contributions to state candidates. Even more states should consider, debate, and test out similar rules. Implementing geographic limitations on donations is an opportunity for states to act (in the words of Supreme Court Justice Louis Brandeis) as “laboratories of democracy.”

Limiting donations from non-voters works as a prophylactic measure against corruption, helping to prevent situations like those alleged in the Menendez case. More broadly, it has the potential to improve politics and governance by tying representatives more closely to their constituents and reducing the sway of outsider donors.

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