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Last week, the U.S. Supreme Court heard oral argument on the case that will decide the constitutionality of the new campaign election restrictions. Proponents of the law claim that it is mere reform, but the lower court has already invalidated much of it as violative of free speech. The three-judge panel disagreed on many issues, but all agreed that parts of the law violate the First Amendment. Even Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), the law’s birth parents, have conceded that all is not right, for they have refused to defend some of the law. The job of defending the Bipartisan Campaign Reform Act in its entirety belongs to Solicitor General Theodore Olson. He argued to the Court last Monday that there is a “compelling” governmental interest in the campaign financing restrictions, because they serve to reduce the “appearance” or perception of corrupt politics — “the breakfasts, the lunches, the receptions, the dinners . . . the relentless pursuit of big contributions.” It is, of course, illegal for a politician to accept money (in the form of campaign contributions or otherwise) in exchange for his or her vote. Bribery laws have prohibited that for generations. These new restrictions, the proponents of campaign regulation argue, are necessary to prevent the appearance that politicians are for sale. Seth Waxman, a lawyer representing McCain, Feingold, and other legislators in the BCRA litigation, told the Court that voters must be confident “that their vote counts, that big money doesn’t call the tune.” APPEARANCES NOT COMPELLING Is there a compelling interest in eliminating the “appearance” of impropriety? The “compelling” interest test allows the government to do things that normally violate the Bill of Rights. Oddly enough, most of the litigants who oppose the McCain-Feingold law concede, or assume for purposes of argument, that removing this “appearance” is a compelling interest. This concession reflects what most Americans think. Take the case of judicial elections. A recent American Bar Association poll concluded that “72 percent of all Americans are concerned that the impartiality of judges is compromised by their need to raise campaign contributions,” with over half of the respondents saying that “they were ‘extremely’ or ‘very’ concerned.” However, believing something does not make it so. Unlike Dorothy in “The Wizard of Oz,” who could return home simply by saying, “There’s no place like home,” one cannot create a constitutional violation simply by surmising that one exists. As Justice David Souter noted in the campaign financing case of Nixon v. Shrink Missouri Government PAC (2000), “This Court has never accepted mere conjecture as adequate to carry a First Amendment burden.” We now have some rigorous economic studies of campaign contributions, and they give us results that are contrary to the assertions that are easily made and too easily accepted in this area of the law. What they show is there is no actual impropriety. Therefore, there is no reason to change the law to protect against a mere appearance of an impropriety. For example, it is often asserted that the high cost of broadcast advertising is the root of the problem. The typical contested House of Representatives race cost $318,000 in 1972 and $973,000 in 2000 (both in 1990 dollars). People often claim that candidates must buy expensive television advertising to win, so the rising cost of television time drives up election spending. And the perceived need to increase spending, so the logic goes, increases pressure on candidates to raise money, thus opening them up to charges of actual or apparent conflicts. Yet the empirical research does not support the basic assumption on which this logic is based. A rigorous study by MIT and Yale economists published in 2001 found that higher television advertising prices “have no effect on total campaign spending levels.” Moreover, higher television advertising prices also “have no significant effect on incumbent vote margins or victory rates.” In short: “The advent of television in campaigns has had little effect on spending levels or vote margins in congressional elections.” THIN EVIDENCE OF INFLUENCE Those who advocate limiting campaign contributions and campaign expenditures (a proposal that tends to help incumbents, who vote for these laws) also routinely assert that those who give the money corrupt the recipients, or at least they “appear” to corrupt the recipients. But another economic study by three MIT economists concluded in a paper published earlier this year that the evidence that campaign contributions lead to a substantial influence on votes is “rather thin.” Legislators’ votes depend almost entirely on their own beliefs and the preferences of those who vote for them and their party, according to the study: “Interest group contributions account for at most a small amount of the variation. In fact, after controlling adequately for legislator ideology, these contributions have no detectable effects on legislative behavior.” Building on earlier work by Gordon Tullock, a law professor whose office is down the hall from mine, these economists concluded that one simply cannot explain why people give so little in political campaigns if one assumes that the givers intend to change the behavior of the politicians. After an extensive econometric analysis, the economists concluded that political campaign contributions are a form of consumption that gives personal satisfaction, like giving to the United Way (except that individuals give less to politicians than they do to charity). As a percentage of national income, political contributions in 2000 were four-hundredths of 1 percent. If people contribute to political campaigns to corrupt the recipients, one would think that it should be straightforward to examine as a statistical matter the charge that campaign contributions affect judicial decision making. Indeed, it should be easier to examine this link than the possible link between campaign contributions to legislators and members of the executive branch. While legislators or members of the executive branch deal with many issues and interest groups, judges deal with specific parties involving particular matters. Thus if these parties (or their lawyers) give campaign contributions to the judges, and then the judges rule in favor of these parties (or their lawyers), that does not necessarily mean that judges are corrupt, but it does mean that people’s fear regarding the “appearance” of impartiality is not unreasonable. I recently published an article that studied this supposition, and I reached the same conclusion as the economists (although without their rigorous statistical analysis). Look at just one of the states I examined, Illinois. The total amount of money that the contributor-litigants gave was not large, particularly when compared with the total amount of all campaign contributions that noncontributor-litigants gave. The contributor-litigants as a group gave only 6.6 percent of the money that the candidates raised. The amount that the judges gave themselves dwarfed the amount that the contributor-litigants gave them. In other words, the judicial candidates contributed to their own campaigns two and a half times as much as all of the contributions of the contributor-litigants. This sort of “self-contribution” is significant because there is no risk of corruption when judicial candidates contribute to their own campaigns. The justices are not litigants before their own court, and they do not need to spend money to influence themselves. In the eight-year period between 1991 and 1999, 34 percent of the cases that the Illinois Supreme Court heard involved a party, lawyer, or organization that made a campaign contribution to a Supreme Court justice in the prior election cycles. However, more than two-thirds of those cases involved public attorneys representing the state. These publicly employed lawyers do not work on contingent fees; they are not billing by the hour; they do not worry about losing their client. When the state-employed contributors appeared before the court, they were more often on the losing side than the winning side of the case. WHEN GIVING HURTS DONORS If we remove publicly employed lawyers from the list of contributors, the percentage of cases before that court where a contributor-litigant made a campaign contribution drops to just 10.7 percent. And when we turn to that 10.7 percent, we find that those contributors were more likely to be on the losing side than the winning side of the case. In other words, to the extent that there is a statistical correlation, it is negative. The U.S. Supreme Court has already rejected restrictions on campaign financing when an anti-corruption rationale is unlikely to exist, in Federal Election Commission v. MCFL (1986). Nonetheless, the major players before the Court are assuming that there is a “compelling” interest in protecting the “appearance” of impropriety, although the evidence that is available is 180 degrees to the contrary. Perhaps, like Dorothy in “The Wizard of Oz,” they believe that wishing something can make it so. Ronald D. Rotunda is the George Mason University Foundation Professor of Law at George Mason University School of Law.

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