Let us start again with the purpose behind campaign finance laws: the elimination of, or at least he discouragement of, corruption. The most direct form of corruption is money for legislative votes, so called quid pro quo corruption. Not even the Roberts Five, or the Roberts Four plus one, are likely to think quid pro quo corruption is protected by the First Amendment. But it seems that is about all the present Supreme Court majority in Citizen United is ready ban.
I’ve already quoted this from Heather Gerken, the law professor at Yale, writing in the American Prospect, but it bears repeating:
The truth is that the most important line in the decision was not the one overruling Austin. It was this one: "ingratiation and access . . . are not corruption." For many years, the Court had gradually expanded the corruption rationale to extend beyond quid pro quo corruption (donor dollars for legislative votes). It had licensed Congress to regulate even when the threat was simply that large donors had better access to politicians or that politicians had become "too compliant with the[ir] wishes." Indeed, at times the Court went so far as to say that even the mere appearance of "undue influence" or the public's "cynical assumption that large donors call the tune" was enough to justify regulation. "Ingratiation and access," in other words, were corruption as far as the Court was concerned. Justice Kennedy didn't say that the Court was overruling these cases. But that's just what it did.
If the Court rigidly insists that Congress can regulate only to prevent quid-pro-corruption, narrowly defined, then Citizens United has implications that extend well beyond what corporations can do. Justice Kennedy's own opinion even hints at the possibility, as he notes that the evidence supporting the "soft money" limits – which apply across the board -- rests on evidence about the connection between money and political access. While Justice Kennedy backed off from saying anything definitive, we may find that it was the Court's discussion of corruption, not corporations, that matters most in the long run.
“Ingratiation and access . . . are not corruption.” That would be giving money to both parties so that politicians of every stripe will come and heel when you call. For those of you who were at Drinking Liberally last Thursday, you heard John Marty describe how Ziggy Wilf, the owner of the Vikings gave large sums of money to both the Republican and the DFL parties, their respective caucuses, and to each of the major party candidates for governor last time around. It wasn’t, as John said, because Ziggy was confused about which party he supported; it was to buy, to use the terms of the Supreme Court, “ingratiation and access.”
Senator Marty called this process “corrupt,” and he is right. Not the donors, at least necessarily, nor the politicians, again, at least necessarily, but the process itself. It is a corruption of a core principle in a republican democracy that some citizens are heard so well and so often and others not at all.
I’d intended to finish up with a discussion of some of the proposals to address the consequences of the Citizens United decision, but that will have to wait for another day.