Corruption ought to be corruption, plain and simple.
The same rules and principles governing corruption of a “foreign official” ought to apply to corruption of U.S. “officials.”
Yet, as I have highlighted for years on these pages there is a glaring double standard when it comes to alleged corruption of “foreign officials” and corruption of U.S. “officials.” The U.S. government is eager to address the former, yet countenances in many cases the latter by advancing certain policy arguments.
Last week in McCutcheon v. FEC, the U.S. Supreme Court dived into the topic of corruption.
The specific issue before the court was whether the aggregate limits on campaign contributions found in 2 USC 441(a)(a)(1), which restricts how much money a donor may contribute in total to all political candidates or political committees, violates the First Amendment.
In a plurality opinion authored by Chief Justice Roberts and joined by Justices Scalia, Kennedy and Alito, the court held that such aggregate limits are invalid under the First Amendment and in doing so dismissed the argument that such limits served the objective of combating corruption.
The opinion recognized that “while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption ‘quid pro quo’ corruption.” As to that type of corruption, the opinion adopted a narrow view and stated: “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. Ingratiation and access are not corruption.”
As to the aggregate limits at issue, the opinion stated:
“[S]pending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s officials duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner influence over or access to elected officials or political parties.”
“The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basis First Amendment rights.”
Next, the plurality opinion addressed contributions through various “third parties” such party committees, PACs or others and stated:
“[T]here is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly. When an individual contributes to candidate, a party committee, or a PAC, the individuals must by law cede control over the funds. […] As a consequence, the chain of attribution grows longer, and any credit must be shared among the various actors along the way. For those reasons, the risk of quid pro quo corruption is generally applicable only to the narrow category of money gifts that are directed, in some manner, to a candidate or officerholder.”
It is difficult to square this logic with – for example – the third-party payment provisions of the Foreign Corrupt Practices Act.
In closing, the plurality opinion notes that any risk of corruption is cured by disclosure requirements under federal law and that “[t]oday, given the Internet, disclosure offers much more robust protections against corruption.” It is interesting to note – as highlighted in my article “The Story of the Foreign Corrupt Practices Act” – that disclosure vs. prohibition was the preferred method of addressing the so-called foreign corporate payments problem by the Ford Administration and various members of Congress.
A dissenting opinion authored by Justice Breyer and joined by Justices Ginsburg, Sotomayor and Kagan states that the notion “that large aggregate contributions do not give rise to corruption – is plausible only because the plurality defines corruption too narrowly.”
The dissenting opinion speaks broadly of corruption.
“Corruption breaks the constitutionally necessary chain of communication between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”
“Since the kinds of corruption that can destroy the link between public opinion and governmental action extend well beyond those the plurality describes, the plurality’s notion of corruption is flatly inconsistent with the [basic constitutional rationales].
In the end, the double standard between the meaning of corruption as it relates to “foreign officials” vs. U.S. “officials” matters as it undermines the legitimacy and moral authority on which the U.S. government acts.
Against the backdrop of the U.S. government bringing FCPA enforcement based on allegations that a company was seeking access to certain foreign officials or certain information or that company employees were seeking to ingratiate themselves with foreign officials through such items of value as a bottle of wine, flowers, karaoke bars or cigarettes … just remember, in the words of the U.S. Supreme Court “ingratiation and access are not corruption.”