Differing Views on Corruption and Campaign Finance

I keep thinking about the recent line of U.S. Supreme Court campaign finance cases that limit corruption to "quid pro quo" situations. A few months ago, I wrote a blog post explaining that the Court's picture of campaign finance as about political beliefs is not how things work at the local level, where politics is more about power and spoils than about beliefs. But the "quid pro quo" view of corruption is problematic in other ways.

One problem is that this view involves only one kind of corruption:  personal corruption. It is relevant only to situations where one individual wants a candidate or official to do something very specific in return for a campaign contribution. This is a problem, but it is not the principal problem in campaign finance.

What is most problematic in campaign finance is institutional corruption, that is, legal contributions and independent expenditures that lead to special access and preferential treatment that cannot be directly traced to a quid pro quo deal, but are reasonably seen by the public as either pay to play or ongoing favoritism related to a series of contributions over time.

This is especially true at the local level, where most sizeable campaign contributions and independent expenditures come from those seeking, or trying to maintain, special benefits from the government, including contractors (especially professional contractors and consultants, whose contracts are rarely competitively bid), developers seeking permits and approvals, grantees, regulated businesses, government appointees, and government employee unions.

Personal vs. Institutional Corruption
When personal corruption is discovered, it is damaging primarily to the individual, although it does reflect on the entire government. The more of it there is, the more it resembles (or reflects) institutional corruption and, therefore, undermines trust in the government. Personal corruption can be lessened by effective laws, training, advice, disclosure, and enforcement.

Institutional corruption is damaging to the entire government. And in most campaign finance programs, the only defense against it is disclosure. Ridding a community of institutional corruption requires a change of culture which, with respect to campaign finance, is accomplished through the very laws (contribution limits and prohibitions, and public campaign financing programs) that have been weakened or prohibited by recent Supreme Court decisions that apply personal corruption standards to these institutional corruption prevention methods.

Corruption According to the Public and According to Justices
The wrongheadedness of these decisions can be seen by looking at two very different kinds of situation, one of which I was involved in myself. Several years ago, I told my town's First Selectperson (effectively the mayor) that I would give her the maximum contribution ($1,000) if she would promise to form a charter revision commission. I had been arguing that this was the responsible thing to do, because our town hadn't formed one for over 25 years, longer than any of the other large towns in the state that still had our small-town form of government. It was time, I believed, for our community to discuss its form of government and to bring the charter in line with state and local laws that had been passed over the last 25 years.

According to the U.S. Supreme Court, this was a bald act of corruption, even though I had nothing to gain personally, in a financial or even a political way. The First Selectperson refused my offer, and it's now been well over 30 years since my town has had a charter revision commission. Not having a discussion about our form of government suits those who benefit from it.

On the other hand, a government employee union or a big developer could spend many thousands of dollars in support of local candidates, despite upcoming labor negotiations or the upcoming approval of a big development project, and the Supreme Court majority would not considered this corrupt, as long as there was no evidence that the union or the developer elicited any promises from the candidates it supported. It may look to citizens (if they knew about the spending before the election, since most local campaign contributions, especially for independent expenditures, are neither frequently disclosed nor easily accessed) as if the union or developer were trying to buy the election, but this is okay, since there was no quid pro quo.

In short, there are two kinds of corruption:  what the public considers corruption and what the Supreme Court majority considers corruption. What I did, in the name of my belief in the open discussion of important community issues, is not generally considered corrupt or corrupting. I simply refused to make a contribution to any candidate who did not promise to do something important to me, but not in any way that would benefit me personally. What people do that appears to be intended to get them a higher salary, a permit for their development, or a contract is generally considered corrupt. But the Supreme Court majority considers what they do legal, and what I did illegal.

At the very least, the Supreme Court decisions should not be applied at the local level. But even at the federal level, it's questionable whether the majority's view of corruption is shared by much of the public, which appears to see little difference between conflicts of interest and campaign finance. Perhaps the Supreme Court majority's view that these are different is as as out-of-sync, and as important, as its out-of-sync definition of corruption, which is the topic of a lot more discussion.

Robert Wechsler
Director of Research-Retired, City Ethics

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