Washington Campaign finance reform is what it pretends to combat: corruption. The Supreme Court should have said something like that when it struck down, as unconstitutional abridgments of free speech, Vermont's severe limits on contributions to and spending by campaigns.
Instead, the court cobbled together a majority by producing a muddle. The court still wallows waist deep in the muddy waters of its 1976 opinion in Buckley v. Valeo.
In that, the court declared campaign spending limits unconstitutional restrictions on speech. But the court upheld limits on contributions because such limits supposedly serve a compelling interest - combating corruption or the appearance thereof. Because corruption long has been illegal, reformers stress appearances.
Monday's opinion, written by Stephen Breyer (joined by John Roberts and Sam Alito; Anthony Kennedy wrote a concurrence; Clarence Thomas, joined by Antonin Scalia, embraced the result but not the reasoning) held to Buckley's ban on spending limits. Breyer declared Vermont's contribution limits (the nation's tightest - $400 to candidates for statewide offices) too severe and, characteristically, laid down a fog of five criteria for judging acceptable limits - criteria that will generate dozens more cases.
Thomas recognized that the likelihood of the rule of law, of principled government action, is related inversely to the number of criteria the court concocts for determining what political contribution limits are just right. What qualifies judges for this judgment, or how the First Amendment permits it, is unclear. So Thomas sensibly advocated overturning Buckley, allowing people to give, and candidates to spend, what they like, and allowing voters to sort things out. What a concept.
During oral arguments in February, Chief Justice Roberts asked Vermont's attorney general, "How many prosecutions for political corruption have you brought?" The attorney general: "We have not had any." Roberts: "Do you think that political corruption in Vermont is a serious problem?" Attorney general: "It is." Roberts: "Would you describe your state as a clean state politically or as a corrupt one?" Attorney general: "We have got a real problem in Vermont."
Roberts asked the attorney general for an example to validate his assertion that campaign contributions from Vermont interest groups "often determine what positions candidates and officials take on issues." The attorney general answered that he could not offer an example, and said "influence" would be more accurate than "determine." People trying to influence elections and government? Heaven forfend. In another clarification, sort of, the attorney general said the problem is "undue influence." So there.
Incessant allegations about the "appearance" of corruption are self-validating - they create a public impression of corruption. Such allegations enable the reform movement to keep raising money and raising doubts about the sufficiency of government regulations, however numerous, of speech about government. Hence reformers have a powerful incentive to argue two propositions.
One is that corruption is so pervasive and subtle it is invisible. They resemble the zealots who say proof of the vast sophistication of the conspiracy to assassinate President Kennedy is the fact that no proof has been found.
Alternatively, reformers argue that corruption is entirely visible everywhere: It is called politics. If politician A votes in a way pleasing to contributor B - particularly if B enjoyed "access" to A - that shall be designated corruption. Never mind abundant research demonstrating that money usually moves toward politicians of particular behavior, rather than changing behavior.
Although many reformers say "corruption" is secret, hence they cannot be expected to document it, some serious corruption is hardly hidden. It is in the legislative history of McCain-Feingold. Bob Bauer, a Democratic campaign lawyer, notes that the law, although marketed as a measure for clean government, was an opportunity for incumbents' self-aggrandizement. They exploited the opportunity, enacting special protections against wealthy opponents, and "blackouts" on much pre-election advertising. These they justified as enabling them to control the content of political discourse in election seasons, and enabling them, as Bauer says, to "avoid the indignity of 'negative' ads directed against them."
The "appearance of corruption" rationale, by which incumbents justify writing laws for their convenience, is threadbare. So reformers increasingly argue (see their justifications for restricting citizens' "527" groups) that regulating the timing, amount and content of political advocacy is necessary to improve the tone of politics. So that is what Madison meant: "Congress shall make no law abridging freedom of speech - unless incumbents think abridgements will elevate speech about themselves."
Reformers say that government regulation of campaign giving and spending will not only spare our leaders the distraction of the governed seeking "undue" influence on government, it also will make us think better of government. But a jaundiced view of government is often sensible, and certainly it is justified by campaign regulation, which has become a particularly virulent form of the disease it purports to cure.