Looking like Legal Bribery
Terry H. Schwadron
May 18, 2022
The conservative Supreme Court majority has upheld a campaign finance exception that all but assures something that can look an awful lot like bribery.
The case decided on Monday helped Sen. Ted Cruz (R-Texas) who had challenged a federal campaign finance rule that had blocked him from loaning personal campaign money and then collecting it from donors once in office — in payments to himself, with no oversight or reporting.
Until now, the law would have capped such a loan at $250,000; Cruz loaned himself $260,000 to challenge the law. Actually, the decision will allow him to recoup donations towards a half-million-dollar loan he made to his campaign in 2012 as well.
Legally, the case concerned whether the restriction constituted “injury” to a candidate who wanted to loan himself money to run for office.
Substantively, the case revolved around a more understandable proposition: Once in office checks to repay the personal loan could easily be tied to actions by that officeholder that benefit the donor.
The federal rules for pre-election loans treat the action as reportable contributions, but candidate loans fall into a separate category. But repayments of such candidate loans by outside donors is not addresses.
Since this court decision involves personal loans, we may never know who is giving Cruz that kind of money.
The Arguments
Writing for the 6–3 majority, Chief Justice John G. Roberts Jr. said noted that the limits on the contributions to candidates post-election are the same as pre-election, and thus carry no particularly corrosive effect. He criticized the law’s “need for prophylaxis-upon-prophylaxis,” adding that said the government was “unable to identify a single case of quid pro quo corruption in this context.”
In dissent for the liberal minority, Justice Elena Kagan wrote “both candidate and donor know what they are getting: The candidate is ‘deeply grateful’ because his personal wealth is affected, and the donors know “as they paid him, so he will pay them.” She added, donors could “receive government benefits — maybe favorable legislation, maybe prized appointments, maybe lucrative contracts. The politician is happy; the donors are happy. The only loser is the public. It inevitably suffers from government corruption.”
The Justice Department argument: “A post-election contributor also usually will know whether the recipient of the contribution has prevailed in the election. The contributor therefore can know ― rather than merely hope ― that the recipient will be in a position to do him official favors.”
What of Accountability?
The idea of campaign finance law is to assure that there is accountability in political contributions. Sure, candidates can self-fund their campaigns as they wish. The law is concerned with how they collect and spend other people’s money.
But over years and multiple decisions now, the Supreme Court has whittled away at the power of such law. The court has enabled corporations to pour money into candidacies, has overseen the growth of political action committees that operate on the edges of anonymity, have discouraged limitations that they see encroaching on First Amendment rights.
In addition, the Supreme Court has helped insist on evidence of cash exchange or demonstrable evidence of specific bribery to justify public corruption.
The combination has been unhealthy for public accountability among politicians, regardless of political orientation.
There is little question that the political money race is a bad thing for the country. No sooner is one election over than winners spend part of each day hunting for contributions towards the next election. With campaigns stretching into well over a year, the amount of cash on the table has become astronomical.
The money goes for television ads, of course, which uniformly end up annoying the voting public, which just wants it all to stop. The campaigns “sell” an image with sound bites and slogans that never solve the public’s problems.
Amid all the hoopla about the legitimacy of the court itself, the question increasingly becomes how this Supreme Court majority is earning the public’s trust. The run of recent cases overturning abortion rights, the pending decision to expand gun-carry permits at a time of heightened concern about gun violence and the court’s own lax ethical rules say different.
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