A question of proximity and degree: Schenck v. United States and Citizens United v. FEC
"Politics is supposed to be the second oldest profession. I have come to realize that it bears a very close resemblance to the first."
Pres. Ronald Reagan - 1977
The free choice of private individuals and organizations to support a candidate for public office is intrinsic to the very nature of representative democracy. Any private entity should be allowed to donate its time, labor and capital to the candidate of its choice. These voluntary contributions are of immense value to candidates for public office and as venerated as the republic itself. While no one who believes in democracy would advocate limiting the amount of time or effort private individuals or organizations may contribute to political candidates or their parties, well-intentioned but erroneous reformers have made strenuous efforts to limit their monetary contributions, however.
These attempts have proven to be extremely problematic for two reasons. First, they have been largely ineffective. In the spirit of the post-Watergate reforms, Congress amended the Federal Election Campaign Act in 1974 by limiting the amount of money individuals and organizations could donate to candidates for federal office. By employing unregulated "soft money" and bundled campaign contributions, candidates, their parties, and a myriad of special interest groups have circumvented these and subsequent restrictions. Therefore, the Congress passed the Bipartisan Campaign Finance Reform Bill and President Bush signed it into law on March 27, 2002. Although this law limits the amount of soft money individuals and organizations may contribute and increases the transparency of issue advertising, it actually doubles the amount of "hard money" contributions that may be bundled into purchasing influence.1 Second, restrictions on political donations raise important constitutional issues by inhibiting the freedom of political expression within the public arena. Although the Supreme Court upheld most of the provisions of the 2002 Campaign Reform Act by a slim majority of five to four, as Justice Scalia wrote succinctly and accurately in his dissent in McConnell v. FEC (2003), "... an attack upon the funding of speech is an attack upon speech itself."2 Thus, both pragmatic and theoretical reasons exist to oppose these recent congressional efforts to impose futile and unconstitutional restrictions upon the ability of individuals and organizations to express their political opinions by contributing their time, effort, or property to candidates for federal office, as the Court endorsed in its recent Citizens United v. FEC (2010) decision.
Because it plays a vital role in campaigns for public office, private capital has been, is and will be an essential element of the democratic process. Nevertheless, massive political contributions may be accompanied by an actual or tacit quid pro quo. If so, they transmogrify from the expression of political opinion, which is protected by the First Amendment, to bribery, which is not. The Supreme Court recognized the difference between protected speech and bribery in Buckley v. Valeo (1976). In this decision, it held that although portions of the Federal Election Campaign Act of 1974 were unconstitutional, Congress could place restrictions upon some political donations because doing so is one of the:
"... primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions." 3
Simply put, in attempting to differentiate between a donation and a bribe, the Court distinguished between political contributions that do not purchase influence and those that do. It then maintained that that former is protected speech, and that the latter is not. Thus, the Court permitted reformers of campaign financing to reduce the corrupting influence of large campaign contributions by limiting their size. Conversely, their opponents contend that these and subsequent limitations place unreasonable and unconstitutional restrictions upon the freedom of donors to express their political opinions financially. Unfortunately, both sides in this dispute have missed the crux of the issue: they are arguing about the money when the real problem is not the money but the influence it purchases.
The theoretical principle upon which the proper resolution of this issue can be based was conceived by Supreme Court Justice Oliver Wendell Holmes, Jr. and expressed in his famous decision in the case of Schenck v. United States (1919). The standard he espoused permits Congress to enact a prior restraint against free speech, such as political contributions, when that speech exhibits a "clear and present danger" to bring about "substantive evils that Congress has a right to prevent." 4 Bribery and improper influence clearly meet this threshold. As Justice Holmes observed crucially, however, "It is always a case of proximity and degree." Thus, when the proximity of the private donor to the public candidate is high and the degree of the donation is large, corrupting influence is likely to ensue: political favors will be bought and sold. When either the proximity or the degree is reduced so that improper influence is eliminated, political donations become a benign form of protected speech.
Campaign finance reformers have focused their efforts upon reducing the degree of improper political influence by limiting the size of political contributions. Rather than restricting improper political influence by limiting the degree of the donation, Congress could reduce the proximity of the donor to the recipient instead. By so doing, the size or degree of political contributions may be increased commensurately without incurring the de facto bribery of corrupting influence. To appropriate Justice Holmes's famous example of pernicious speech, congressional campaign finance reformers have sought to silence the man shouting "Fire!" in a crowed theatre. Instead, they could remove him from the theatre so that he can shout "Fire!" to his heart's content.
Nevertheless, this fire-shouting man, even if he was standing outside the theatre, could amplify his voice or shout loud enough to panic the patrons within, and in so doing, speak in a manner that causes a substantive evil that Congress has a right to prevent. Hence, democratic governments have an ethical obligation to determine the point at which the degree of this incendiary speech is sufficiently loud that a prior restraint against its expression is appropriate notwithstanding the diminished proximity of the speaker to the audience. By applying this principle to campaign contributions, Congress could endeavor to determine the point at which the mere amount of the donation, notwithstanding the diminished proximity of the donor to the candidate, transforms it from a benign form of free speech to an inherently corrupting bribe. It is at this point that a prior restraint against this form of political expression becomes both desirable and permissible because the size of the contribution does not simply corrupt an individual candidate for public office; it corrupts the democratic process itself.
In the Buckley decision, the Supreme Court held that limiting the size of political donations was constitutional because large donations between two or more distinct parties could constitute actual or tacit bribery. Therefore, it is exceedingly likely that the Court would sustain the constitutionality of any law enacted by Congress that might expand the size limitations it places upon political donations substantially. If Congress has the right to restrict the political speech implicit in campaign contributions, it certainly has the right to relax those restrictions. The Supreme Court came to the opposite conclusion regarding the constitutionality of restricting the amount of money candidates could contribute to their own campaigns, however. In this instance, the Court held that such a limitation is unconstitutional because actual or tacit impropriety cannot be inferred from a political contribution to oneself. In essence, the Court posited that the phrase "self-bribery" is an oxymoron.
Although this is obviously true, public bribery is not. Imagine momentarily that powerful and widely revered clerics engaged in political campaigns for secular power. Because the cultural power they possess cannot be liquidated in a secular democracy and apportioned so that it improperly influences the electorate, they must rely upon their political skills, not their religious talents, in order to influence public opinion and acquire governmental power. In other words, because clerics can neither cajole voters with promises of absolution nor intimidate them with threats of damnation in exchange for their votes, their religious power is politically illiquid. Economic power is politically liquid, however, and it can be apportioned and exchanged for votes. This is why our election laws prevent candidates for public office from paying citizens in exchange for their votes directly. Such a prohibition implies strongly that restricting some of the ways in which candidates might use their own personal property to acquire public power is not only permissible, it enhances the integrity of the political process, as well. If candidates for public office are precluded from purchasing votes directly, can they be precluded from doing so indirectly? Are restrictions on the use of private economic power to acquire public political power permissible and constitutional, and if so, are they appropriate and beneficial? To what degree, if any, do the expenditures of vast sums of personal wealth to acquire political power tend to corrupt the democratic process itself, thereby creating a substantive evil that Congress has a right to prevent?
First, the public has the immutable right to restrict the use of any personal property in direct proportion to the adverse effect that the acquisition or use of this property may have upon the general welfare, or as Benjamin Franklin wrote in 1789,
"Private Property therefore is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing...."5
Thus, the use of private funds to purchase a lavish gift is restricted to legal commodities, and regardless of one's personal wealth, one cannot purchase a human slave legally. Moreover, even if the ownership of the commodity itself is entirely legal, its owner's disposition of it may not be. Hence, buying a legal commodity for your own personal use is unconditionally permissible; buying one for the purchasing agent of a private corporation might be restricted by its value and liquidity; and buying one for a public official whose decisions may affect one's private financial interests may be prohibited completely. As property makes its way from the private realm to the public domain, it assumes an increasingly greater degree of permissible restrictions because the ownership of that property becomes less individual and more collective. From zoning restrictions and highway speed limits to confiscation by eminent domain and prohibitions against providing material comfort to an enemy nation in a time of war, the nature of the ownership and use of private property is often not a matter of kind, but one of degree. Just because it's your baseball bat doesn't mean that you can beat your spouse over the head with it.
This evolutionary process of private to public ownership must also pertain to the use of personal financial assets when they facilitate the acquisition of any public commodity, regardless of whether that commodity is a government contract, a federal license or direct political power. Regarding the latter, in 1807 Thomas Jefferson wrote that,
"When a man assumes a public trust, he should consider himself to be public property."6
As it pertains to massive political self-donations, therefore, the crucial determination becomes establishing the point at which the private property of an individual who attempts to acquire public power assumes a public nature. Before the assassination of Robert Kennedy in 1968, candidates for President were not provided with any protection from the Secret Service.7 As Senator Kennedy's assassination demonstrated so tragically, this perception of presidential candidates as private citizens was profoundly myopic. Similarly, when affluent individuals engage in efforts to assume a public trust, the financial assets they use to accomplish that objective acquire a high degree of public ownership, which enables a great degree of permissible restrictions. When wealthy individuals contribute to their own campaigns, they are, in effect, transferring their assets from their private to their public personae. As the individual candidates transmogrify from private to public entities, the methods they employ to accomplish this objective metamorphose, as well. Therefore, attempting to acquire a public trust must be tantamount to possessing it ethically. The degree of the public's ownership of the trust itself must equate to its degree of the ownership of the process by which that trust is acquired. Placing restrictions upon the use of private property to support those efforts is entirely permissible, so long as they do not restrict the right of those individuals to express their own political opinion through contributing to their own campaigns unduly.
Thus, contributing to one's own campaign must possess the same degree of constitutional protection as contributing to any other political candidate; it is a form of protected speech to the degree that the amount contributed does not subvert the political process intrinsically. The degree to which massive political contributions subvert the electoral process, therefore, must equal the degree to which they are not protected by the First Amendment to the Constitution. Hence, Congress is not constitutionally precluded from imposing restrictions upon the size of political self-contributions that it believes would corrupt the democratic process itself.
If some kind of generous restrictions on self-contributions are permissible constitutionally, are they advisable politically? The modus vivendi of the United States is predicated upon the insidious and corrosive nature of power. Our society employs an elaborate system of checks and balances to disburse and disseminate dangerous concentrations of cultural power within it, such as federalism, three coequal branches of government and the separation of church and state. When affluent individuals campaign for public office, they are attempting to concentrate both economic and political power personally, and using the former to acquire the latter is inherently corrupting. Although warning his compatriots about the dangers of concentrating too much political power in any one individual or branch of government, George Washington described the intrinsic depravity of power astutely in his Farewell Address to the nation in 1796 by noting that,
"The spirit of encroachment tends to ... create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position."8
Hence, the propriety of the use of either a public commodity such as political power or a private commodity such as personal property to acquire the other should be determined by degree. Thus, receiving a modest remuneration for public service is entirely ethical, while using political power surreptitiously for excessive self-aggrandizement is not. The same principle implies that modest political contributions, regardless of the respective identities of the donors and the candidates, are entirely ethical, while excessive contributions, again regardless of the identities of the donors and the candidates, are not. Affluent individuals who endeavor to acquire political power by using their assets to purchase the votes of corrupt public officials betray democracy to the same degree as those who endeavor to acquire this power by using their assets to purchase the votes of the citizenry. It is for this reason that public officials who possess copious amounts of both property and ethics will place their private assets in blind trusts during their tenures of office. Simply put, the ethicality of blind trusts should be mandated for those who solicit political power as well as for those who possess it. Maintaining a wall of separation between the exercise of public political power and private economic power is just as essential to the virtuous operation of a free society as the walls of separation that exist between the exercise of ecclesiastical and secular power or among the various branches of government. Huge political contributions from wealthy donors to their own campaigns for public office corrupt neither the donors nor the recipients; they corrupt democracy.
What Can We Do?
When the donor and the candidate are independent parties, the issue of the proximity of the donor to the recipient becomes paramount. Therefore, by reducing their proximity Congress could increase the degree of those contributions substantially without engendering any adverse effect upon the ethicality of the political process. In self-funded campaigns, the donor and the candidate are one in the same, and hence, the issue of proximity does not exist. Therefore, the exact same restrictions that are established for political donations between independent parties must be as ethically and constitutionally valid as those established for self-donation. When proximity has been eliminated, any limitations Congress might place upon the size of political contributions would not be instituted to obviate "the reality or appearance of improper influence" upon any particular individual or organization, but rather to obviate their "improper influence" upon the political process itself.
Private individuals and organizations should be free to support the candidates of their choice financially unless and until the amount of their contributions becomes so massive that they could corrupt the electoral process. Therefore, in restricting the size of political donations, Congress could apply a maximum amount of $100,000 per election cycle, either given or received, might be established regardless of the public or private nature of either the recipient or the donor.
The implementation of this standard could contain the following six stipulations:
Individual donors or their surrogates could be limited to contributing $100,000 to any individual public official, candidate for public office, or their surrogates, as well as to any political organization or party during any election cycle.
Individual recipients or their surrogates could be limited to receiving $100,000 from any public or private individual or organization or their surrogates during any election cycle.
Organizational donors could be limited to giving $100,000 to any individual public official, candidate for public office or political organization during any election cycle.
Organizational recipients could be limited to receiving $100,000 from any individual or organization during any election cycle.
Any individual or organization that has received any charitable contributions in excess of $100,000 within the preceding ten years could be prohibited from donating any portion of those contributions to any candidate for public office or political organization in order to preclude the possibility of any illegal third-party donations.
Finally, this limitation could apply to those instances when the donor and the recipient are the same individual, as well.
Additionally, Congress could establish the following ancillary regulations in order to limit the corrupting influence implicit in large political donations by eliminating the proximity between independent donors and candidates and by placing reasonable restrictions on the size of any individual private contribution:
Charitable political donation is a form of protected speech, but the use of private financial assets to purchase actual or tacit political obligations is a form of bribery regardless of whether it is an individual candidate or the public at large that is being influenced monetarily. For example, when massive donations are combined with the close proximity of the donor to the recipient, as they are in civic philanthropy, influence is expressed in some form of name recognition typically. This name recognition often involves the public display of the contributor's largess and has created civic institutions as diverse as the Pulitzer Prize, the Ford Foundation and Duke University. With political contributions, this recognition provides individuals and organizations with the opportunity to influence the nature of public policy decisions based upon narrow private interests. Treating political influence as a commodity to be bought and sold in an open market is antithetical to the principles of democracy and should not be allowed to continue unabated for three essential reasons. First, it inhibits the free flow of information into the political marketplace of ideas, thereby creating a self-perpetuating status quo. Second, it induces the ethical prostitution of our elected political representatives. Finally, it exacerbates the cynicism of a disaffected electorate. As Sophocles wrote in Antigone, Americans should embrace the sentiments of Creon when he said,
"For me, whoe'er is called to guide a state and ... as worthier than his country counts his friend, I utterly despise him."9
Using money to purchase the "friendship" of a public servant is reprehensible. Private money cannot and should not be excluded from politics, but the private influence it purchases can and should.
1http://www.fec.gov/pdf/guidesup03.pdf, p. 10
9http://www.bartleby.com/8/6/1.html, lines 205-206, 210-211