The Supreme Court ruled in the Citizens United case that campaign contributions are a form of free speech protected by the First Amendment. On April 2, the Supreme Court ruled, in McCutcheon vs. Federal Election Commission, that Congress does have the right to legislate against corruption in campaign financing, but, as Jill Lepore pointed out in an article in The New Yorker, only against certain forms of corruption.
Chief Justice John Roberts wrote the opinion for the five-to-four majority. “The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute,” he began.
Congress may not “regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.” But there is “one legitimate governmental interest for restricting campaign finances,” he explained: “preventing corruption or the appearance of corruption.”
That said, the Court’s understanding of corruption is very narrow, Roberts explained, echoing a view expressed by Justice Anthony Kennedy in McConnell v. F.E.C., in 2003: “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.”
Quid pro quo is when an elected official does something like accepting fifteen thousand dollars in cash in exchange for supporting another politician’s bid to run for mayor of New York. The only kind of corruption that federal law is allowed to prohibit is out-and-out bribery. The kind of political prostitution that the Moreland Commission was in the middle of attempting to document—elected officials representing the interests not of their constituents but of their largest contributors—does not constitute, in the view of the Supreme Court, either corruption or the appearance of corruption.
The Moreland Commission to Investigate Public Corruption was appointed by Gov. Andrew Cuomo in April, 2013, to investigate corruption in New York state.
The commission was given 18 months to do its work, but in March of this year, Gov. Cuomo shut it down. He said it was supposed to investigate the legislative branch, not the executive branch.
In the meantime, the commission made a series of preliminary recommendations, including closing loopholes regarding limited liability laws, mandating disclosure of outside spending, instituting public finance and creating an independent election-law enforcement agency.
As Lepore noted, these recommendations, except maybe for public campaign financing, would have had little effect in the light of Citizens United and McCutcheon.
Zephyr Teachout, who opposes Gov. Cuomo in the coming Democratic primary, is a law professor who says the Supreme Court’s decision is contrary to the intention of the authors of the Constitution. Even if she’s right, this doesn’t change anything.
Maybe it is necessary to amend the Constitution, as was done after the Supreme Court ruled that slavery was protected by the Constitution and later when the Supreme Court ruled that a federal income tax was unconstitutional.