Supreme Court just made political corruption easier
Republican Texas Sen. Ted Cruz’s victory at the Supreme Court this week won’t be one of the blockbuster rulings of the current term. That’s precisely why it deserves attention. The court’s decision enables blatant political corruption in the supposed service of the First Amendment. That it is not bigger news is a measure of how inured we have become to this conservative court.
Conservative justices have been on a decades-long mission to dismantle campaign finance restrictions, which they view as a danger to free speech. Limits on how much individuals can contribute directly to candidates remain in place, but with ample ways for deep-pocketed donors to get around those constraints.
Remember Citizens United v. Federal Election Commission, the 2010 ruling in which the court said corporations could not be barred from spending unlimited amounts to help elect favored candidates, on the laughable theory that such independent spending wasn’t corrupting? That opened the door to multimillion-dollar campaigns by so-called super PACs.
Four years later, the court struck down overall limits on the amount that individuals could contribute directly to federal candidates, political parties and PACs. These “aggregate limits” — $123,200 in 2014 — interfered with donors’ freedom of speech, the court ruled, and weren’t justified by the need to prevent corruption. Now, a determined wealthy donor can give millions directly to a favored party and its candidates in the convenient form of one humongous check.
The campaign finance rule struck down in Federal Election Commission v. Ted Cruz for Senate, decided Monday, is more obscure, but the corruption it enables is even more sordid. The issue involves candidates who lend money to their campaigns. They can raise money even after an election to repay themselves, but only up to $250,000.
Justice Elena Kagan, writing for the three dissenting liberals, offered a succinct explanation of why: “Political contributions that will line a candidate’s own pockets, given after his election to office, pose a special danger of corruption. The candidate has a more-than-usual interest in obtaining the money (to replenish his personal finances), and is now in a position to give something in return. The donors well understand his situation, and are eager to take advantage of it. In short, everyone’s incentives are stacked to enhance the risk of dirty dealing. At the very least — even if an illicit exchange does not occur — the public will predictably perceive corruption in post-election payments directly enriching an officeholder.”
The conservative majority considered the repayment rule with its usual combination of determined myopia and instinctive hostility to campaign finance restrictions. The opinion, by Chief Justice John G. Roberts Jr., both exaggerated the burden on candidates’ free speech rights and minimized the corrupting potential of such post-election donations.
The court has long held that political candidates have a First Amendment right to spend as much of their own money as they want on their campaigns. That makes sense; political speech is, after all, at the heart of the First Amendment. But Roberts ratcheted up that right to illogical heights. The repayment limitation, he argued, “increases the risk” that candidates’ loans to their campaigns won’t be repaid. Therefore, it “inhibits candidates from loaning money to their campaigns in the first place, burdening core speech.”
As Kagan wrote in dissent, this “overstates” the case. Nothing stops a candidate from spending as much as he wants on his own behalf. “The law impedes only his ability to use other people’s money to finance his campaign . . .,” she noted. “And even that third-party restriction is a modest one, applying only to post- (not pre-) election donations to repay sizable (not small) loans.”
As much as the majority demonstrated undue solicitude toward self-funding candidates, it showed scant respect for congressional concern about the corrupting potential or appearance of successful candidates vacuuming up post-election donations from donors interested in currying favor. Defending the law, the government argued that such contributions present a “heightened risk of corruption” because they put money back in candidates’ personal pockets and because donors to already elected candidates know they are betting on a sure thing. “That is not the type of quid pro quo corruption the Government may target consistent with the First Amendment,” Roberts wrote.
Again, Kagan demolished this argument, even under the court’s cramped view of corruption as extending only to quid pro quo arrangements.
“When a campaign uses a donation to fund routine electoral activities (including speech), the money marginally aids the candidate’s electoral odds, but in no way adds to his personal wealth,” she wrote. “By contrast, when a campaign uses a donation to repay the candidate’s loan, every dollar given goes straight into the candidate’s pocket. . . . So contributions going to loan repayment have exceptional value to the candidate — which his donors of course realize.”
Meanwhile, when donors “give money to repay the victor’s loan, they know — not merely hope — he will be in a position to perform official favors,” she added. “The recipe for quid pro quo corruption is thus in place: a donation to enhance the candidate’s own wealth (the quid), made when he has become able to use the power of public office to the donor’s advantage (the quo). The heightened threat of corruption — and, even more, of its appearance — is self-evident (except, it seems, to observers allergic to all campaign finance regulation).”
Allergic? That’s putting it mildly. Cruz didn’t need the money he loaned his campaign; he deliberately engineered the loan to challenge the repayment rule in court. If you know this court, you know his victory won’t be the last.