The McCutcheon Decision and Local Government Ethics
The big news in the government ethics world this week is C.J.
Roberts' <a href="http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf" target="”_blank”">opinion
in the <i>McCutcheon</i> case</a>. The biggest problem with this opinion
is its author's continuation of an unrealistic picture of how large campaign contributions work. Roberts acts as if
access were not an important goal, and as if the only problematic
relationship between contributor and elected official involved
<i>quid pro quos</i>. A more
accurate view is that because contributions are one aspect of relationships based on ongoing gift-giving
and ongoing access and benefits, those who seek access and special benefits from a
government should not be able to make large gifts.<br>
<br>
If Roberts' view of problematic relationships were applied to
government ethics laws, there most likely wouldn't be very many rules left
standing, because government ethics, like campaign finance, exists
in a non-<i>quid pro quo</i> world.<br>
<br>
Although this decision applies only to federal campaign finance
laws, past campaign finance decisions have been applied at all
governmental levels. Therefore, it is problematic for local
government ethics that a statement near the end of the Roberts
opinion presents a picture of campaign contributing that bears
little relationship to what occurs at the local level:<blockquote>
When donors furnish widely distributed support within all applicable
base limits, all members of the party or
supporters of the cause may benefit, and the leaders of the party or
cause may feel particular gratitude. That gratitude stems from the
basic nature of the party system, in which party members join
together to further common
political beliefs, and citizens can choose to support a party
because they share some, most, or all of those beliefs. See
<i>Tashjian</i> v. <i>Republican Party of Conn</i>., 479 U. S. 208,
214–216 (1986). To recast such shared interest, standing
alone, as an opportunity for <i>quid pro quo</i> corruption would
dramatically expand government regulation of the political process.</blockquote>
When a donor "furnishes widely distributed support" to local
candidates, up to the limit allowed (if there is one), his
contributions rarely go to members of a political party or faction
based on "causes" or even "common political beliefs" shared by the
donor.<br>
<br>
One, most local elections are not fought on the basis of political
causes or beliefs. They are much more about power, personality, race
and ethnicity, and a belief in competence. In fact, most city and
town elections are non-partisan and, among those that are partisan,
a large percentage of cities and counties are run by a single party.<br>
<br>
Two, most large contributions to local candidates have even less to
do with political causes or beliefs. Large contributions usually
come from contractors, developers, grantees, appointees, and
employees, that is, individuals who have something economic to gain
from their contributions, or something to lose if they fail to make
a contribution. If someone who sought benefits from a city or county
government were to make large contributions to a large number of its
candidates and to their party, it would look to all the world as if
she were trying to buy favor. If the individual obtained or retained
a contract, grant, or permit, it would look like a <i>quid pro quo</i>
deal, although it would be hard to prove this without a sting
operation.<br>
<br>
Different views of free speech rights in terms of election campaigns
is one thing. Different views of the reality of election campaigns
is another. It is distressing that campaign finance rules are being
struck down based on an inaccurate view of reality. The Supreme Court
majority's view of reality is even less true of local election
campaigns.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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