by Jeffrey Rosen
October 11, 2013
On the second day of the Supreme Court term, the justices debated whether limits on aggregate campaign contributions were necessary to prevent individual donors from corrupting politicians through quid pro quo gifts. As Bobby Burchfield, the lawyer challenging the aggregate limits put it, “The foundation of this Court’s jurisprudence in this area is the careful line between independent expenditures, which this Court has held repeatedly do not create a sufficient risk of quid pro quo corruption to justify their regulation, and contributions which do.”
Reaction to the argument has focused on the policy question that tied the justices in knots: namely, does or doesn’t the current political system favor the rich. Liberal justices and commentators say yes; conservative justices and commentators generally say no. But it’s a shame that the Court didn’t focus on the broader constitutional question underlying its recent decisions striking down campaign finance reform: does the First Amendment allow only campaign finance regulations designed to prevent quid pro quo corruption by individuals, or does it allow a broader definition of corruption, designed to prevent the entire political system from being inextricably dependent on a handful of the richest donors? The truth is that the Court adopted an unnecessarily narrow definition of corruption in the Citizens United case, which held, as Burchfield put it, that the “gratitude and influence” that all members of Congress feel toward big money donors to candidates, parties and PACS “are not to be considered quid pro quo corruption.” And a brief filed in McCutcheon, but ignored by the justices in the argument, suggests that this definition is inconsistent with the original understanding of the Framers of the Constitution.