The Senate Judiciary Committee has delayed its vote on the confirmation of Brett M. Kavanaugh to the Supreme Court until next week, but there isn’t much evidence any Republican senators have backed off their support for him. There’s one big reason for their enthusiasm that hasn’t gotten the attention that has been devoted to Roe v. Wade or the ability of President Trump to do whatever he pleases.
It’s the fact that a Supreme Court with Kavanaugh on it could create a free-for-all when it comes to the influence of money in politics, a new era in which corruption is absolutely rampant — and completely legal.
To understand why, we have to look at not just what Kavanaugh believes, but also at where the court has been heading in recent years. With the court about to be dominated by a quintet of highly ideological conservatives, conservative ideas about campaign finance and about corruption could come together in a way that presents a profound threat to the integrity of the American system of government.
In recent years, conservatives have been systematically chipping away at any and all restrictions on the ability of corporations and wealthy individuals to funnel money into campaigns, an effort Kavanaugh enthusiastically participated in as an appeals court judge. Though it happened most famously with Citizens United in 2010, which allowed corporations to spend unlimited amounts to influence elections, there have been a series of decisions providing more avenues for money to flow into campaigns with fewer and fewer restrictions.
The essential principle undergirding campaign finance law is that the potential for money to corrupt the process of governing is a serious enough threat that it justifies restricting that money’s flow. What conservatives have done in recent years is to define the potential for corruption in narrower and narrower terms, saying that it won’t be corrupting, for instance, if a billionaire spends money to help a candidate get elected but doesn’t actually communicate with that candidate about the details, or it won’t be corrupting if corporations do the same. The one place they haven’t yet gone is to remove the restrictions on direct contributions to candidates, which are now capped at $2,700 per election.
But Kavanaugh could be coming for direct contributions, too. Rick Hasen recently explained:
Recently released documents from the time that Kavanaugh was advising Bush on McCain-Feingold show a person seriously skeptical of campaign finance laws’ constitutionality. Kavanaugh expressed deep misgivings about laws that let outside groups spend unlimited sums in elections while limiting how much candidates and parties can raise to respond to such ads. He told another adviser that he saw “serious” First Amendment problems with capping what people can contribute to candidates, adding that “it is possible my 1A views are even purer than yours.” He also noted that while “very few people” thought contribution limits to candidates are unconstitutional, “I for one tend to think those limits have constitutional problems.”
As Hasen notes, there are cases moving through the federal pipeline right now in which the plaintiffs seek to strike down virtually all limits on campaign finance, and one of them could be the vehicle for the Supreme Court to do so.
Now here’s where the definition of “corruption” comes in. The idea of limits on direct contributions is that while it may be possible for me to give you a million dollars for your campaign while wanting nothing in return, the transaction is so potentially corrupt that we don’t have to investigate every case to demonstrate that it’s problematic. We just set a contribution limit low enough that members of Congress can’t really get bought for that amount. A congressman will lavish you with compliments for $2,700, but he probably won’t change his vote on a bill for it. But conservatives would like to change the definition of corruption so that we pretend it isn’t something we need to worry about anymore.
That’s where McDonnell vs. United States comes in. This was a 2015 case concerning former Virginia governor Robert F. McDonnell, who accepted $175,000 in gifts and loans (including a shopping spree, a Rolex and payment for the catering at his daughter’s wedding) from a donor who clearly wanted the governor’s help in promoting the nutritional supplements his company produced. The case hinged on the definition of “government action,” and the Supreme Court found that the actions McDonnell took, including setting up some meetings for the donor, weren’t substantial enough to constitute corruption. In effect, the donor tried to bribe McDonnell, and McDonnell encouraged him to think he was making a bribe (in some cases, McDonnell requested the gifts), but because McDonnell didn’t deliver enough of a change in government policy, it didn’t constitute corruption.
There’s a legitimate and complex question about whether we should allow the ordinary operation of politics to become criminalized (see the case of Don Siegelman). And in the McDonnell case, even the liberal justices believed the governor hadn’t given enough of a quo in exchange for the quid he received, especially given Virginia’s lax laws on gifts officeholders can receive. But if you have strict rules about contributions and gifts, you have to worry a lot less about what does or doesn’t constitute a quid pro quo, because you’ve removed the ability to offer the quid.
What conservatives want, however, is the worst of all possible worlds: Narrow the definition of corruption to where it’s almost invisible, and remove limits on spending and contributions, so money is flying everywhere.
The ruling in the McDonnell case has already resulted in politicians getting off the hook for what seems like pretty obvious corruption. Kavanaugh and the other conservatives could use it as a hammer to destroy campaign finance laws.
It wouldn’t be hard. The court’s conservatives could say that they’ve already found that for a quid pro quo to exist, it has to involve significant changes to policy that are unquestionably done in exchange for a gift or contribution, so there’s really no reason to limit contributions, because most of them won’t involve that kind of exchange. In the rare cases when it would happen — let’s say if a billionaire writes a $2 million check to a congressman’s campaign and is recorded saying, “I am giving you this money so that you will vote for a bill to cut my taxes,” and the congressman replies, “thank you for this money, I will now vote for a bill to cut your taxes,” then we can prosecute it. Otherwise, no problem.
The trouble is that that isn’t how things work in the real world. No politician has to ask what the Koch brothers want, or what Sheldon Adelson wants, or what other mega-rich donors want. They already know. Communicating the quid pro quo is unnecessary.
If contribution limits are eliminated, it will be even easier for billionaires to simply buy themselves the Congress they want. As Michael Tomasky notes:
An average House race costs around $1.5 million. The Kochs and the Mercers and Sheldon Adelson and 15 or 20 other people like them could very easily get together, pool their money, and elect 50, 70, maybe 100 of the finest minds of the 16th century to Congress.
Adelson, a casino magnate, got a windfall of nearly $700 million from the tax cut the Republicans passed last year, and he is ponying up $30 million this year to help them stay in office. They know what the money’s for.
Once Kavanaugh joins the other conservatives on the Supreme Court, we could see almost all campaign finance laws disappear. Then, Republicans would declare that we’ve solved the problem of corruption in politics, because almost nothing would be against the law.