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.