According to the U.S. Supreme Court, campaign contributions are a form of political “speech” and are therefore protected by the First Amendment of the U.S. Constitution. As a result, the government may restrict such contributions only if doing so serves a compelling state interest. Currently, the only interests that the Court has recognized as sufficiently compelling to justify restrictions on political spending are preventing corruption or the appearance of corruption.
Though sometimes presented as a single interest, the prevention of actual corruption and the prevention of the appearance of corruption are not the same. The reason the government has an interest in preventing actual corruption is obvious. The Court has explained the related but distinct interest in preventing the appearance of corruption by appealing to the importance of maintaining public confidence in the electoral process. If a certain campaign finance activity creates the appearance of corruption, then ordinary citizens may start to view their political participation as futile, and may lose faith in the integrity of elections. Because Congress has an interest in preventing this erosion of public trust, the government can regulate campaign finance activities that the public perceives as corrupt, even when those activities are not associated with actual corruption.
At least that’s what the Court has said. In practice, however, the Court has often failed to apply the appearance of corruption standard in a way that serves these objectives. This is nowhere clearer than in the Court’s recent decision in Federal Election Commission (FEC) v. Cruz. The case concerned a federal law that prohibited a candidate from using post-election campaign donations to repay more than $250,000 of personal loans that the candidate made to his or her campaign prior to the election. The government justified this law partly on the grounds that it prevented the appearance of corruption. After all, when a candidate uses donations to repay personal loans, the donor’s contributions go straight into the candidate’s pockets; the public could easily view such payments as fostering corruption. In support of this argument, the government pointed to a public opinion poll in which 81% of respondents thought it was “likely” or “very likely” that donors who make post-election contributions expect a “political favor” in return. Additionally, the government cited an academic study that found—on the basis of over three decades of empirical evidence—that politicians with campaign debts are “significantly more likely” than debt-free politicians to switch their votes after receiving contributions from special interests.
This evidence, on its face, would seem to support the government’s claim that the limit on using post-election donations to repay a candidate’s large personal loans furthers its compelling interest in preventing the appearance of corruption. However, the Court’s majority opinion dismissed the government’s appearance-based argument in a brief passage with relatively little sustained analysis, apparently treating the flaws in the government’s arguments as self-evident. The Court’s dismissive attitude to the government’s evidence in this case indicates a worrisome approach to the appearance-of-corruption issue more generally.
- With respect to the public opinion poll, the Court indicated that the poll was flawed because it only asked respondents their view of post-election campaign donations and hadn’t also asked respondents what they thought of pre-election donations. This was a strange criticism, given that the law at issue in Cruz only targeted politicians’ repayment of loans using post-election contributions. While the Court didn’t clearly explain why failing to ask about pre-election donations was a defect, its implicit criticism seemed to be that, absent this information, the poll was unable to establish that the public views post-election campaign donations as more corrupt than pre-election donations. In other words, the poll didn’t show that the particular sort of campaign donations at issue in Cruz gives rise to an especially pronounced or unusual appearance of corruption. If this was indeed the Court’s rationale, it is misguided. As the Court has previously held, the government has an interest in preventing the appearance of corruption because this perception undermines the public’s trust in the electoral process. If that’s true, though, then it should not matter whether the public perceives a certain campaign finance activity to be significantly more corrupt than another. The threat to democratic legitimacy is as much an issue when the public believes that specific campaign finance activities are distinctly corrupt as it is when the public perceives all campaign finance activities to be equally corrupt. The Court’s apparent hesitance to allow the government to regulate except in the former case is at odds with the stated purpose behind the appearance of corruption standard.
- The Court’s treatment of the academic study presented by the government was equally troubling. According to the Court, although the study showed that indebted politicians shifted their vote to align with the interests of their donors, the study was flawed because it didn’t prove that this shift was a result of corruption—that is to say, the study didn’t rule out other explanations for why elected politicians may alter their votes to align with the preferences of their donors. The problem with this critique is that the government cited this study to support its interest in preventing the appearance of corruption—an interest which, per the Court’s established doctrine, is distinct from the government’s interest in preventing actual corruption. If the Court requires evidence of actual corruption before the government could vindicate its interest in preventing the appearance of corruption—as the Court did in Cruz—then the appearance interest becomes entirely redundant. In other words, by treating the academic study as insufficient evidence merely because it didn’t establish actual corruption, the Court in effect imposed an evidentiary burden that threatens to erase the appearance of corruption standard altogether, undermining the important interest that it serves.
Cruz leaves many key questions about the appearance of corruption standard unresolved. As the Court further develops this standard in future cases, it should be careful not to compound its error in Cruz by continuing to ignore or neglect the underlying rationale for treating the government’s interest in preventing the appearance of corruption—as distinct from the interest in preventing actual corruption—as a sufficient standalone justification for campaign finance restrictions. If public perceptions of corruption erode public trust in the electoral process, then the Court must give Congress and government regulators sufficient latitude to address this problem. This means applying a proper evidentiary standard, one which does not require proof that a given campaign finance activity has links to actual corruption or that it creates an especially pronounced perception of corruption. Amid growing public concerns about corruption in governance and the integrity of elections, there could hardly be a more urgent need for the Court to ensure that the appearance-of-corruption standard serves its purpose.
Excellent commentary — at the time when _Buckley_ was handed down, the appearance standard might have been seen as equal in importance to checking actual corruption. But it has more or less dropped out of the judicial/legal conversation, to our detriment. Appearance standards are not without their potential problems, but the Court’s excessively narrow conception of corruption (hello, Bob McDonnell…?) amounts virtually to willful ignorance of corruption as an issue in real life…
The use of an appearance standard to judge the lawfulness of conduct has a bad rap among practitioners. That may explain why the Cruz majority gave it short shrift.
As a matter of law, it seems to have originated with section 201 of EO 11222 issued by President Johnson. The first government-wide directive on ethics, the E.O. provided that executive branch personnel must “avoid any action, whether or not specifically prohibited by subsection (a), which might result in, or create the appearance of [among other things] . . . giving preferential treatment to any organization or person [or] . . . affecting adversely the confidence of the public in the integrity of the Government.”
The unqualified direction to avoid appearances survived in the revised ethics E.O President Bush issued in April 1989, E.O.12674 of 4/12/89. It states that “Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards promulgated pursuant to this order.”
But without qualification, those asked to advise officeholders on the standard have been at a loss. Who is to judge whether a public servant’s action creates an appearance of impropriety? A sworn enemy? An opponent of the Administration in which the officeholder is serving?
A similar standard was in force in the Senate when I worked there, and I was occasionally asked for advice on when a Senator would be considered to have violated the appearance proscription. The best I could do was parrot what experienced ethics advisor told me: apply the “Washington Post test.” That is, if the day after the Senator commits the act, the Post writes that creates an appearance of impropriety, the Senator is guilty of a violation.
The Office of Government Ethics finally came up with solution in 1992. Prompted, I am told, by the then small coterie of lawyers who advised officeholders on ethics, it issued a rule qualifying the appearance standard. That rule provides that an appearance of impropriety is to be judged not by anyone but by a “reasonable person with knowledge of the relevant facts.” 5 C.F.R. § 2635.502. Still rather open-textured as Hart would say, but better than the purely subjective test the unqualified version serves up.
From the post, I think the government easily met this standard in Cruz. But perhaps the next time the issue comes before the courts adding a bit of the background above somewhere in the main brief or one of the amicus briefs might help. Whether it would it sway one or two of those in the majority in Cruz I don’t know, but then again they may be so dug in on campaign finance issues that nothing will.