Bruce E. Cain,
Is “Dependence Corruption” the Solution
to America’s Campaign Finance Problems?,
102 Cal. L. Rev. 37
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol102/iss1/3
U.S. campaign finance regulation is currently in bad shape. The combination of congressional inaction, regulatory ineffectiveness, and constitutional constraint perpetuates a status quo that no one intended and many deplore. Public financing for presidential elections is effectively dead, while Super PACs and other forms of independent spending are on the rise. The 501(c)(4) nonprofit disclosure rules are very leaky, allowing corporations and others to conceal soft money contributions to Super PACs if they so choose. The Supreme Court has effectively precluded comprehensive campaign finance reform by its rulings, which have thrown out independent and personal expenditure bans,1 limited public finance to opt-in schemes,2 loosened the definition of issue ads,3 and allowed corporations to use unlimited amounts of their treasury monies to fund independent campaigns.4 To borrow from Vladimir Lenin, "[W]hat is to be done?"5
Professor Lawrence Lessig, in his Jorde Symposium Essay, What an Originalist Would Understand "Corruption" to Mean, believes the answer is to reframe the campaign finance problem as "dependence corruption" using originalist logic. Is he right? I have my doubts, as I will explain. In an effort to persuade the Court to reconsider its very narrow construction of permissible campaign finance reform, Professor Lessig is trying to thread the eye of a doctrinal needle. He wants to broaden the Buckley v. Valeo material corruption logic 6 but avoid the Austin v. Michigan Chamber of Commerce equality rationale7 that was overturned in Citizens United v. FEC.8 This is a hard task that he makes even harder by embedding "dependence corruption" in an originalist argument.
In this short commentary, I will examine the merits of this approach from a political science perspective and offer an alternative way to look at the same problem. Lessig's original-intent account rests on too many contestable counterfactual assumptions regarding what the Founders would have thought about conditions and political practices that they could not have imagined in their day. Moreover, the argument that the Constitution's intent was only direct popular sovereignty ignores the Electoral College and U.S. Senate elections, which are based on geography. Nonetheless, I must leave it to constitutional scholars to determine whether his story is plausible enough to convince the Court.9 My focus is on whether dependence corruption is the right principle for regulating campaign finance. As I will explain, I prefer to think that the problem is one of democratic distortion, and that the solution under the current constitutional constraints requires continuing efforts to open up donor participation to all voters, fix the broken disclosure system, and preserve the current system of congestion pricing.10