When Are Quid Pro Quo Campaign Contributions Corrupt? When Are They an Embodiment of Democracy?

Recent developments in the nomination of Brett Kavanaugh to the U.S. Supreme Court have been dramatic, to say the least. As I type this, most of the discussion of Judge Kavanaugh’s nomination has focused on allegations that, while in high school, he and a friend sexually assaulted a 15-year-old girl. Events are moving so fast that by the time this post is published (which will likely be a few days from now, since I typically write these things in advance), there may be more new developments. But I actually don’t want to talk here about the issues that have (rightly) taken center stage with respect to this nomination. Rather, I want to discuss another controversy connected to Kavanaugh’s nomination that had been getting a fair bit of press until it was overshadowed by the disclosure of the sexual assault allegations. That controversy concerned a coalition of civil society groups in Maine that used crowdfunding to raise over $1 million, and declared that they would donate these funds to the opponent of Republican Senator Susan Collins of Maine the next time she is up for re-election (in 2020) if she votes to confirm Judge Kavanaugh to the U.S. Supreme Court.

Is that corrupt? Senator Collins and several of her political allies think so. Senator Collins denounced the campaign as “bribery or extortion.” Other commenters agreed (see here and here). And a group called the Foundation for Accountability and Civic Trust (FACT) wrote to the Department of Justice (DOJ) to call for an investigation of the groups that organized the crowdfunding campaign, alleging that conditioning a campaign donation to Senator Collins’ opponent on whether Senator Collins supports Kavanaugh is “an illegal attempt to influence an elected official’s specific vote” in violation of 18 U.S.C. §201(b), the section of the federal bribery statute that makes it a crime to “directly or indirectly, corruptly … offer[] … anything of value to any public official … with intent to influence any official act.” It’s perhaps worth noting that although FACT describes itself as a “non-partisan ethics watchdog,” its ethics complaints are targeted overwhelmingly (though not exclusively) at Democrats, and it is funded entirely by an anonymous trust fund (a so-called “pass-through”) favored by ultra-wealthy conservative donors, including Charles Koch. So reasonable people might take FACT’s own conclusions with more than a grain of salt. Still, though, the allegation that the grassroots campaign targeting Collins is engaging in illegal “bribery,” though in my view wrong as a matter of both law and ethics, is worth taking seriously, because it highlights some of the fundamental problems with the regulation of campaign finance in the United States—in particular the use of a “corruption” paradigm to address what’s mainly a political equality problem.

This issue has come up before, when the (partisan) shoe was on the other foot. Back in the spring of 2017, when the Congress was considering repeal the Affordable Care Act (ACA, a.k.a. Obamacare), the donor network headed and funded by Charles and David Koch pledged to donate millions of dollars to the campaigns of Republican Members of Congress in the 2018 election cycle if—but only if—those Republican incumbents voted against a bill that would have preserved the ACA. Shortly thereafter, Louisiana State University Law Professor Ken Levy wrote a provocative and compelling essay making the case that the Koch brothers’ declaration that their campaign donations were contingent on how a legislator voted on this particular bill was a violation of 18 U.S.C. § 201(b). (For a similar argument, see here.) The parallels to the current effort to influence Senator Collins’ vote on the Kavanaugh nomination are both obvious and uncanny. True, the Kochs’ attempt to influence congressional votes on the health care bill involved giving campaign donations to incumbents who voted the “right” way, while the Maine activists are trying to influence Senator Collins’ vote by threatening to give campaign donations to her next opponent if she votes the “wrong” way (or, equivalently, to withhold that donation—and presumably return the money to the donors—if she votes the “right” way). But that difference seems irrelevant to the question whether the offer/threat constitutes an illegal bribe under § 201(b).

Some commentators have noted the parallels between the two situations and used this similarity to call out as hypocrites those right-wing groups now accusing the Maine activists of “bribery” (see, for example, here and here). And indeed there seems something sleazy about a group like FACT, which receives all of its funding from a secret trust linked to Charles Koch (among others) denouncing some Maine activist groups for doing what Charles Koch himself did only 18 months earlier. (A quick search of the FACT website finds exactly zero concerns raised about the Koch offer/threat to Republican incumbents back in March 2017.) And in fairness, if one wants to call out those right-wingers for hypocrisy, I suppose one should also press those on the political left, like Professor Levy, who thought that the Kochs were violating federal anti-bribery law back in March 2017 whether they also think the Maine activists are similarly guilty. (I gather Professor Levy is an occasional reader of this blog, and so I hope he might weigh in on this.) But right now I’m less interested in scoring rhetorical points by calling out hypocrisy than I am in what seems to me the thorny, knotty underlying issue of when explicitly conditioning one’s support for a political campaign on the candidate’s vote on a specific matter ought to count as quid pro quo bribery.

As I said in the post I wrote last year in reply to Professor Levy, my instinctive answer to that question is probably no. That doesn’t mean that I think it’s totally fine for rich people or corporations to influence elected politicians’ behavior by promising to bankroll their campaigns if but only if those officials vote the way the donors want them to on specific matters. I don’t think that’s fine at all. The reason it’s not-fine, though, is not because it seems to me inherently improper (let alone corrupt) for a citizen to say to a politician, “I’ll support you if you vote the way I like, but I won’t support you if you vote the way I don’t like.” That sort of “quid pro quo” seems like how democracy is supposed to work—or it would, if citizens had roughly equal abilities to influence politicians through the granting or withholding of support. The problem, though, is that the U.S. Supreme Court has firmly rejected a “political equality” rationale for campaign finance limits. The only rationale the Supreme Court has endorsed as a justification for campaign finance restrictions is the prevention of quid pro quo corruption (or the appearance of such corruption). I concede that there are plausible reasons to reject “political equality” as a sufficient justification for burdens on what the Court has ruled is a form of protected speech. But in rejecting that and other plausible rationales, and treating the prevention of quid pro quo corruption as the only justification for regulating campaign finance, the Court has created an odd situation.

On the one hand, extremely wealthy donors whose support is viewed by politicians as vital to electoral success have an extraordinary degree of influence, and they can exert that influence without having to say anything so explicit as to amount to a quid pro quo. On the other hand, a longtime campaign volunteer who writes a letter to the politician she has supported in the past saying something like, “If you vote for bill X I’ll continue to volunteer for your campaign, but if you don’t you can count me out” would appear, at least if one goes by the letter of the statute, to have offered a bribe in violation of § 201. I can’t imagine such a case would ever be prosecuted, but that’s not important for the point I’m trying to make here. The thing that troubles me is that a broad criminal prohibition on any sort of quid pro quo in politics would seem to sweep in a lot of conduct that not only shouldn’t be criminal, but in fact is a legitimate and laudable part of democracy in action. But excluding campaign donations from the scope of “anything of value” in § 201 or other anti-bribery statutes would seem to give far too much power to wealthy donors to skip the indirect “ingratiation and access” approach and simply purchase votes with campaign donations.

What we need, it seems to me, is a principled way to distinguish what the Maine activists are doing—saying to Senator Collins, “It would be outrageous for you to vote Yes rather than No on this matter, and so if you do we’ll do everything we can to defeat you in the next election, including by raising a ton of money and donating it to your opponent”—from what the Koch brothers were doing back in March 2017—saying to each Republican Member of Congress, “It would be outrageous for you to vote Yes rather than No on this matter, and so if you do we won’t support you (as much) in the next election, because we’ll withhold this big pot of money we’ve created to support candidates we like.” I have a strong intuition that these cases should be treated differently—and that the former is fine and the latter is troubling—but I confess it’s hard for me to construct a plausible distinction based on the language of the anti-bribery statute, or one that ignores the identity of the parties. The former case doesn’t bother me because the money was raised by lots of small donations, and so plausibly represents a “quid pro quo” offer/threat extended on behalf of a mobilized group of citizens. The latter case does bother me because a much smaller group of people, with vast wealth (much of it inherited, though that’s not directly relevant here), can convert this economic power into political power.

Now, I must be honest and confess that I’m sympathetic to the Maine activists’ goals and I was opposed to the Kochs’ position on health care, so a critic might reasonably accuse me of allowing my policy preferences to shape my views about the legitimacy of the attempts to influence the decision-making process. That’s an entirely fair criticism, and one I take seriously. To be consistent, I’d have to stake out the position that I would also find it troubling (and presumptively improper) if a small number of extremely wealthy individuals (say, George Soros or Tom Steyer) made a promise similar to that made by the Koch brothers (“I’ll only support your campaign if you vote to preserve the Affordable Care Act”), while I’d find it entirely appropriate if a conservative group raised a bunch of money from small donors and threatened to give it to Senator Collins’ Republican primary opponent in 2020 if she does not vote to confirm Judge Kavanaugh. And I do think that’s where I come out. But if in the future I take an inconsistent line, I hope some of you out in reader-land will call me out to keep me honest.

All that is by-the-by, though. The main points I want to make here, which again echo my response to Professor Levy last year, are that (1) using the criminal prohibition on quid pro quo bribery to police promises or threats to support a political candidate based on his or her vote on a specific matter seems inappropriate, and (2) it seems very hard to come up with a plausible theory regarding which forms of quid pro quo campaign contributions should be restricted without invoking considerations of political and economic equality—considerations that the U.S. Supreme Court has rejected. So I’m at a bit of a loss, and would welcome comments and other input from folks out there, especially those who have a better handle on both US campaign finance law and federal criminal law than I do.

17 thoughts on “When Are Quid Pro Quo Campaign Contributions Corrupt? When Are They an Embodiment of Democracy?

  1. In 1980, Wanda Brandstetter wrote in a note that she’d give an Illinois state representative campaign help and a $1000 contribution if he voted in favor of the Equal Rights Amendment. The representative, no friend of the ERA, sought Brandstetter’s prosecution for bribery. She was convicted, fined $500, and ordered to perform 150 hours of community service. The Illinois Appellate Court affirmed Brandstetter’s conviction, and both the Illinois Supreme Court and the U.S. Supreme Court declined to review her case.

    Although bribery statutes like 18 U.S.C. § 201 don’t expressly distinguish between campaign contributions and other payments, the U.S. Supreme Court does. In McCormick v. United States in 1991, the Court held that campaign contributions may be treated as bribes only when “the payments are made in return for an explicit promise or undertaking . . . to perform or not to perform an official act.”

    Although I’ve defended the McCormick standard (84 Fordham L. Rev. 463, 482-84), it’s easily disparaged. As Justice Kennedy observed, this standard places a premium on winks and nods. “Explicit” promises aren’t the way corruption usually happens. Some (including the Eleventh Circuit in its ruling concerning former Alabama Governor Don Siegelman) have questioned whether this standard survives the later Supreme Court decision in Evans v. United States.

    Even the much criticized McCormick standard wouldn’t have helped Ms. Brandstetter, who must have been astonished when what she saw as everyday political action turned out to be a felony. It also wouldn’t help the Koch-funded group described by Professor Stephenson or the group that now threatens to contribute to an opponent of Senator Collins unless she opposes the confirmation of Judge Kavanaugh. An Oregon statute, however, would have blocked conviction in all of these cases. It declares that a properly recorded campaign contribution may not be treated as a bribe at all. Perhaps, in a system of privately funded election campaigns, it’s pointless not to legalize bribery that takes a suitable form. (There is in fact something to be said for abandoning the effort to regulate campaign contributions through bribery law and for regulating them instead through ex ante limitations on their source and amount. Sadly, in cases like Citizens United, the Supreme Court has largely blocked the more sensible form of regulation.)

    One circumstance may distinguish the cases of Ms. Brandstetter and the Koch-funded group from that of the group that threatens to contribute to an opponent of Senator Collins. It’s true that 18 U.S.C. § 201 prohibits giving anything of value to anyone with intent to influence an official act, and this language makes clear that a candidate can’t avoid a bribery conviction by saying, “Please pay the money to my sister.” I know of no case, however, in which threatening to fund an opponent (rather than offering funds to the candidate herself or her sister) has been treated as bribery. The folks who hope to influence Senator Collins may be able to march through this possible loophole.

    • Thanks so much for your extremely thorough and helpful answer!

      I think that our bottom lines are largely similar, and nicely summed up in the parenthetical at the end of your second-to-last paragraph: Trying to regulate corruption-via-campaign-donations using bribery law is not as effective or sensible as establishing ex ante limits on contributions, but the US Supreme Court has rejected the latter approach, leaving us stuck with the former.

      I also agree that the Collins situation may be distinguishable, but I’m not sure in the end I buy the distinction. If the Kochs said, We’ll fund the Republican primary opponent of any incumbent who doesn’t vote for tax cuts, for example, I think that most people who found their actual conduct problematic would be just as bothered.

  2. While I am not well-versed in the law (and thus at a considerable disadvantage here), I see no quid pro quo in promising to contribute to the campaign of an (as-yet-unnamed) opponent. While they are clearly trying to influence one specific vote, the Maine group is not offering anything of value to Senator Collins. This is more a threat than a bribe, but one that the Senator should be aware of, anyway: some people pay attention to how their Representatives and Senators vote, and are willing to reward or punish at the ballot-box. In my interpretation, this group has coalesced some public opinion into collective action with a little money behind it. If the Senator votes in favor of the confirmation, it should be because she believes that her constituents would want her to. If that is the case, then she should have no trouble raising at least as much money as those who oppose a “yes” vote.

    • Yes, you and several other of the commenters here and elsewhere have emphasized this distinction between the two cases, and I acknowledge that it may well be the most straightforward way to distinguish them. But whether or not it works legally, I’m not sure it’s entirely satisfying from a normative or policy standpoint. In both cases, the private actor is saying to the public official, If you vote the “wrong” way on this issue, we’ll use our economic power to reduce your chances of winning the next election. Why should it matter (at least from a moral perspective, if not a legal one) whether that exercise of economic power is withholding a donation from the public official if she votes the “wrong” way or making a donation to the public official’s opponent if she (the incumbent) votes the “wrong” way? That questions is genuine, not rhetorical — I’m not saying there’s no difference, I’m saying that I’m having difficulty articulating the reason for the difference.

      To sharpen it a bit, drawing from my post and my answer to Professor Alschuler above:

      (1) Suppose the Koch brothers said to the Republican incumbents: “If you don’t vote to kill Obamacare and cut taxes, we’ll donate millions of dollars to your opponent in the next Republican primary.” That’s a threat, not a promise–is it (morally) OK? My instinct is no, but it seems hard to distinguish from the Collins case on threat v. promise grounds.

      (2) Suppose the Maine activists said to Senator Collins, “We’ve raised all this money through crowdfunding and we plan to donate it to your next election campaign, but if you vote to confirm Judge Kavanaugh, we won’t.” Is that OK? Your analysis suggests (I think) that it wouldn’t be, because it’s more like a bribe–but isn’t this also a “group … coalesc[ing] some public opinion into collective action with a little money behind it”?

      • Although explicitly offering a campaign contribution in exchange for a vote against Judge Kavanaugh’s confirmation is a serious crime, threatening to contribute to an opponent unless Senator Collins agrees to vote against Kavanaugh’s confirmation doesn’t seem to be criminal. Because contributing to Senator Collins and withholding contributions from her opponent usually have about the same effect, their different treatment appears to be a glitch. Professor Stephenson make a good case that when a criminal code prohibits trading official favors for contributions, it should also prohibit trading official favors for promises not to contribute to a candidate’s opponent.

        Still, there are some possible distinctions. (1) Withholding a contribution from an opponent has the same effect as contributing to a candidate only in a two-person race (and many races in Maine don’t fit that description). (2) A candidate who is confident of her political skill and/or the appeal of her message may believe that a dollar given to her will aid her campaign more than a dollar given to her opponent will hurt it. (3) In view of the diminishing marginal utility of campaign expenditures, a candidate whose campaign treasury is smaller than her opponent’s may value a contribution to her campaign more than she fears a contribution to her opponent’s. And (4), most importantly, although contributions are expensive, talk is cheap. If Senator Collins were to yield to the threat made by Kavanaugh’s opponents, the opponents would get her vote without spending a dime. If she were to resist the threat and vote to confirm, the opponents might feel compelled to spend money to make good on their threat, but they might not. Collins can’t be sure that they’d do it. A corrupt but wary senator might reasonably say, “If you want to buy my vote, I need cash on the barrel head. A promise not to donate money you’re threatening to give to my opponent just won’t cut it.”

        • Thanks!! This is really helpful. I’m glad my original somewhat half-baked post has prompted some more nuanced and well-grounded elaboration of the legal and moral principles here.

          On your four possible distinctions, I think they’re all good points, but I still have questions:

          Distinctions 1, 2, and 3 would all, it seems to me, go to the _value_ of the offer/threat (expressed in utility terms rather than dollar terms). But why should that matter? A $10,000 bribe is just as illegal (isn’t it?) as a $100,000 bribe. Suppose that withholding a donation of $100,000 to Collins’ opponent has the same value, to her, as a donation of $10,000 to her re-election campaign. If the latter would be illegal, why shouldn’t the former be? Again, just to be clear, my intuition is very much that the Crowdpac pledge _shouldn’t_ be illegal, so I’m primed to accept any distinction I can grab onto, but this one still seems not entirely satisfactory.

          On distinction #3 in particular, though I see your point I think it’s worth noting that in most cases this factor will cut the other way: usually incumbents have much bigger campaign war chests than challengers, and in those cases one might think your marginal-value argument would suggest a donation to Collins’ challenger has a larger impact on her probability of reelection than does an equally-sized donation to her campaign.

          Distinction #4 is the one I find least persuasive. As a matter of law (unless I’m wrong), promises count as bribes, even if the transaction is never completed, and from a moral or public policy perspective, that seems to make good sense. Plus I don’t think this proposed distinction actually helps distinguish the Collins/Crowdpac case from the Kochs/ACA case. In the latter, the Kochs promised to donate to any Republican who voted to kill the ACA, but did not provide “cash on the barrel head.” Their promise/threat might have been more credible because of their past behavior and the fact that they’re “repeat players,” but I’m not sure that the credibility of the promise will consistently track the donate-to-incumbent/donate-to-opponent distinction, or that the law should take the credibility of the promise into account when deciding whether it counts as a bribe.

          Still, I feel instinctively that you must be right that these cases are different. The distinction I keep coming back to is the difference in economic/political power: In my ideal world, I think I might strictly cap campaign donations (and regulate independent expenditures), but allow certain forms of quid pro quo. But that’s off the table legally for now. So I’d like to find another distinction, and the ones you offer are intriguing, but I’m not quite sure they entirely work for me.

  3. This is indeed an issue that keeps popping up in arguments across the globe, and that as far as I know hasn’t been truly resolved anywhere. There would seem to be an inherent clash between the processes of representative democracy and the goals of an anti-corruption legal framework, in that the former require channels through which citizens are able to influence the political system, while the latter strive to punish the exercise of such influence (at least in some of its forms). However, Professor Stephenson’s intuition is on point, and it connects to both the common definition of corruption and the arguments made back in the day by James Scott: at its core, the problem with corruption is the privatization of collective resources. If we consider political power a type of collective resource, its deployment in response to an influence that can be properly labeled “less than collective” would be construed as an act of corruption. And this is why the actions of the Maine activists and those of Koch brothers are analytically different. The private-collective nature of influence needs to be considered on an spectrum, of course, but legal statutes would do well in moving away from the specific object that is transacted (which produces the quid pro quo condition) and instead concentrate on the degree of collectivization of the interests served by the holder of public office.

  4. Excellent essay! I don’t really disagree with any of it.

    One possible way to distinguish (a) the Koch Bros’ promise to make significant campaign contributions to Republican officials who vote to repeal the ACA from (b) Crowdpac’s promise to make significant campaign contributions to Sen. Collins’ 2020 opponent if she votes for Kavanaugh. (a) is clearly a bribe – a promise to increase compliant Republicans’ campaign chests and thereby their electoral prospects (and personal wealth). (b) is not such a promise; if Sen. Collins votes against Kavanaugh, Crowdpac will not give her a dime.

    Instead, Crowdpac’s promise is much more of a threat – a promise to put Sen. Collins at a great disadvantage in 2020 if she doesn’t comply than to put her at a great advantage in 2020 if she complies. So Crowdpac’s promise is much closer to extortion than to bribery. But given the way the federal extortion statutes are written, in order to make the case that Crowdpac is guilty of extortion, Sen. Collins would have to argue that Crowdpac is trying to obtain property from her. This claim is implausible because her right to vote for Kavanaugh is simply not her property. And even if it were her property, Crowdpac’s pressure is not depriving her of it; Sen. Collins can still go ahead and vote for Kavanaugh if she wants to.

    I can anticipate two objections. The first is that Crowdpac’s threat is an implicit bribe and therefore just as legally questionable as the Koch Bros.’ bribe. The second is that even if the legal distinction I am drawing here between the Koch Bros’ bribe and Crowdpac’s non-bribe threat is correct, they are still morally equal.

    In response to the first objection, Crowdpac’s particular threat would qualify as a bribe only if they had said not merely that Sen. Collins voting yes on Kavanaugh means her 2020 opponent would receive the hefty campaign donation but also that Sen. Collins voting no on Kavanaugh means that she would receive the hefty campaign donation.

    I think that the second objection is stronger. But in his essay, Prof. Stephenson made a key moral distinction: Crowdpac’s threat is much more democratic and expressivist than the Koch Bros’ bribe insofar as many more citizens with far less wealth are behind it.

    Still, what if we replaced Crowdpac with a wealthy individual like George Soros or Tom Steyer? I argue that his threat would still be morally distinct from the Koch Bros’ promise. I say this for three reasons.

    First, the appearances are different. The Koch Bros are waving money in front of politicians’ faces, which makes them look unscrupulous and the politicians who accept the money look greedy. The (hypothetical) Soros/Steyer threat does not involve any such unscrupulous waving or greedy grabbing of money.

    Second, the Koch Bros’s bribe is itself a threat. It is not merely a promise to reward compliant politicians with campaign donations but also a promise to punish disobedient politicians by withholding campaign donations. The same can’t be said of the (hypothetical) Soros/Steyer threat. It is merely a threat to fund Sen. Collins’ opponent if she doesn’t comply, not also an implicit bribe to reward her if she complies.

    Third, while the Koch Bros are using their wealth to manipulate politicians into promoting Social Darwinism, which is a cruel ideology, Soros/Steyer would be using their wealth to do just the opposite – prevent a cruel Social Darwinist ideologue from ascending to the most powerful court in the country.

    • Thanks for this thoughtful reply! There’s a lot in there, and I may post on this again later, but for now let me just try to touch on the issue you raise at the very end: Whether things would be different if some left-wing billionaire (say, Soros or Steyer) said they’d make a big donation to Collins’ next opponent if she votes to confirm Kavanaugh. This strikes me as problematic, because as I say in the post, I’m mostly worried about the concentration of economic power (and its translation into political influence), not the quid-pro-quo as such. You offer three distinctions:

      Your first point is intriguing, but i’m not sure I quite get it. Why would the Koch example count as “waving money in front of politicians’ faces” but the Soros/Steyer alternative wouldn’t? Is it just that the recipient of money in the latter case (as in the real Crowdpac case) is not the targeted politician herself, but rather her opponent? Is that just another version of the threat/promise distinction (your second point), or are you saying something different here?

      Your second point, the one on the threat-promise distinction, is also one that Professor Palifka (and others) raised, so see my answer to her there (including the two hypothetical scenarios). I see what you’re saying, but I’m not sure I buy that in this context the threat-promise distinction makes much of a (moral) difference.

      The only one of your distinctions I’d reject out of hand is the third — not because I disagree with your assessment of the morality of the causes being promoted, but because I don’t think one should resolve procedural questions about this on the basis of how much we like the cause being promoted. I’m not willing to say it’s a bribe if someone pays a politician to do something I don’t like but not a bribe if someone pays a politician to do something I like.

      Looking forward to continuing our exchange on this tough issue.

      • Thanks for the feedback. Here are my late-night reactions:

        My first point was about appearances. All else being equal, there is something uglier – at least superficially, if not substantively (morally) – about incentivizing a politician to vote a certain way with an offer of money if she complies than incentivizing her to vote a certain way with the threat of strengthening her opponent (or opponent’s campaign chest) if she does not comply. Incentivization by money seems crass or vulgar; incentivization by threat of strengthening one’s competition simply isn’t – or is much less so.

        Put another way, both a bribe and a threat are designed to manipulate the politician into voting a certain way (or, more generally, committing a certain official act). But manipulation by bribe is wrong because it involves incentivizing the politician with a vulgar offer of money that will help her win re-election – and very possibly make her personally wealthier. By contrast, manipulation by threat involves no such crass offer of money, only the non-crass, inoffensive promise that an impediment to the politician’s re-election will not be inserted.

        Given all this, I think that it would have been at least somewhat morally worse for Crowdpac to have promised Sen. Collins money for voting No on Kavanaugh than what they actually did: threaten Sen. Collins with the same amount of money going to her opponent if she voted Yes on Kavanaugh.

        Importantly, I believe that the former (bribe) approach would have raised far less money than the latter (threat) approach. Likewise, if Crowdpac had conjoined its threat with a bribe – that is, if Crowdpac had said that it would EITHER give the money to Sen. Collins’ opponent if she voted Yes OR give the money to Sen. Collins herself if she voted No – far fewer individuals would have donated. Why? Because I’m sure many – like me – don’t mind their money going to Sen. Collins’ Democratic opponent, whoever that is. But – given all of her other vile positions and official acts – they DO mind if their money goes directly to her.

        My second point was merely that the Koch Bros’ bribe was implicitly conjoined with a threat. The same is not true of Crowdpac’s threat; it was not also conjoined with a bribe. So if bribes and threats are equally morally wrong, then the Koch Bros. beat Crowdpac by 2 to 1.

        I happily concede your objection to my third point.

  5. What is the difference between Crowdpac and a Super-PAC? Is it only (or even) that Crowdpac is announcing its intentions up front, while Super-PACs coalesce around an issue during campaigns?
    And while we’re speaking hypothetically, what if Sen. Collins were to vote “yes” and her next opponent turned out to be a neo-Nazi? This hypothetical led me to the idea in the previous question–I imagine that the funds would not be donated to that candidate, but rather used to run ads on this specific issue/vote. Unless, of course, those behind Crowdpac already have an opponent in mind.

    • On your first question, presumably the critics of Crowdpac would say that a Super-PAC spends money to support or oppose a candidate, but doesn’t _explicitly_ make that spending conditional on a politician’s vote on a _particular_ matter. But as I tried to convey in the post, I’m not sure why that’s the most relevant distinction. Surely the Super-PAC’s political preferences are known, or can be easily conveyed with winks and nods. If one thinks that the real problem with (some) Super-PACs is that they’re funded by a small number of super-wealthy individuals or corporations, one might conclude that Crowdpac’s express quid pro quo is much less problematic, even though it, unlike most Super-PACs, is very clear about the single issue that it will use to determine its donation decision.

      On your second question, I guess this goes to whether Crowdpac’s promise is credible, and/or whether it’s under any obligation to the donors to follow through on the promise. Both interesting questions, but not ones where I have good answers (or that relate to the main issue I’m trying to explore in this post), so, with apologies, I’ll decline to address that here.

  6. This is so fascinating. I’m inclined to agree with you that there does not seem to be a principled way to distinguish these cases (notwithstanding the “political equality” rationale the Court has rejected). That said, were I the lawyer for the Maine group, I think I’d want to know if the organizers are current donors to Senator Collins. If they are, you might characterize their threats to fund her opponent as involving an additional step: we will stop funding you! However, if they are not current donors one might argue that their threats are no more than promises to fund her opponent without any suggestion Collins will receive their money for her NO vote. With the Koch brothers, meanwhile, no such distinction could be made because their dollars are presumably guaranteed depending on whether a candidate votes the right way.

  7. Really instigating topic! Financially supporting candidates whose agenda meet one’s interest as a voter seems to be part of the democratic game (leaving apart the discussion on whether private campaign finance is appropriate or not). A certain degree of commitment from the elected official with those who supported his or her candidacy is often seen as an almost natural consequence of this dynamics. The adverse effects of it are more often linked to the “institutional corruption” agenda rather than to the “individual corruption” area. It seems to me that the closer the expected behavior leading funders to support a certain candidacy is to a specific act after commissioned, more we feel the case shifting from the institutional to the individual corruption side. Drawing this line is an extremely hard task tough. One could think that this is only when the expected behavior violates the official’s duties to benefit the funders. In concrete cases, I believe this is even though a difficult to assess. Public officials’ duties are generally guided by open categories that give space to different interpretations. If we think about public officials supported by a certain national or local industry active in public procurements committing themselves to restrict the number of possible bidders by creating more restrictive rules, we could think about it as both: defending the local (or national) industry under a certain economic understanding of economic growth as well as corrupting public officials to restrict competition (probably increasing prices) to maintain the privileges of certain players.

    In Brazil, under the current anticorruption wave, the Supreme Court decided to adjudicate the criminal case presented by the Federal Prosecutors’ Office against Senator Valdir Raupp claiming that campaign donations although registered before electoral authorities could itself be deemed as corruption (https://www.jota.info/justica/2a-turma-do-stf-doacao-eleitoral-pode-maquiar-propina-07032017).

  8. Very interesting analysis and fascinating discussions below. I had only one thought reading through the post and all the comments – and it somewhat builds on Joao’s comment above. It seems that similar analysis, if taken just a little step forward, might indeed lead to a conclusion that all campaign contributions are, in fact, attempts to influence, since all of those (companies, organizations, individuals) who fund the campaigns / political parties naturally have their agendas which in some cases can be very well expressed – if not publicly to the politicians, then publicly without mentioning the politicians. An example of that would be a company publicly declaring that it seeks to influence public policy to ensure net neutrality (without mentioning any concrete politicians at all) and then making donations to politicians who support the cause. They select whom to fund based on their interests and decide if they should continue donations based on the performance of politicians. In other words, it seems for me that by publicly declaring the threats / promises such organizations are simply making transparent what is otherwise implicit. I understand that the Supreme Court does not want a situation where politics publicly become a bargaining game, it’s just that I don’t see a real difference and it is supported by the example Joao gave about the case in Brazil.

    I think an interesting example of how one can trace what influence donations have to politics is this case study by Audinga Baltrunaite. True, it does not measure influence to votes (although I suspect there are studies on that as well), but it provides correlations to demonstrate how companies seem to trade political contributions for public procurement contracts after election: https://editorialexpress.com/cgi-bin/conference/download.cgi?db_name=SAEE40&paper_id=446. (It should be noted here that it remains unclear whether after the reform discussed in the article, the influence money did not simply go “underground”, but that is another issue).

    In my opinion, the underlying notion here is that it is up for politicians to ensure that they are not swayed solely by funding promises or threats. I understand how naive this sounds in the context of millions of USD donated each year, but I see no other way of ensuring that political donations do not become bribes if we keep a political system where private donations are allowed in the first place. The politicians should bear the responsibility in ensuring us that their voting comes from their beliefs and policies and where possible a sound cost benefit analysis (not really possible in votes on issues such as nominations).

  9. At this point, we all know that Susan Collins voted yes (https://www.vox.com/2018/10/5/17943276/susan-collins-speech-transcript-full-text-kavanaugh-vote), that the CrowdPac site subsequently crashed (https://www.washingtonpost.com/politics/2018/10/06/susan-collins-announced-support-kavanaugh-causing-site-fund-future-opponent-crash/?utm_term=.931f221d525c) due to the high traffic by donors, and that Susan Collins reaffirmed her claim of quid pro quo on 60 Minutes (https://www.cbsnews.com/news/why-susan-collins-voted-yes-on-brett-kavanaugh/). I just want to document these development for future readers and state that it will be interesting to see if Senator Collins actually brings charges against CrowdPac and, if so, what will transpire.

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