The McCutcheon Decision and Local Government Ethics

The big news in the government ethics world this week is C.J. Roberts' opinion in the McCutcheon case. 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 quid pro quos. 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.

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-quid pro quo world.

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:

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 Tashjian v. Republican Party of Conn., 479 U. S. 208, 214–216 (1986).  To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process.

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.

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.

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 quid pro quo deal, although it would be hard to prove this without a sting operation.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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