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How Justice Roberts’ campaign-finance ruling ignores the real world

Jim Meffert, who ran for Congress and has also run a PAC, says of John Roberts’ decision: “Dude, you have no idea what you are talking about.”

The recent Supreme Court ruling stated that campaign contributions are so vital to freedom of speech that Congress can regulate them only to the degree necessary to prevent corruption or the appearance of corruption.
REUTERS/Gary Cameron

Jim Meffert of Edina has run for Congress and has run PACs that contributed to candidates for Congress. So he has more than a clue about the kind of transactions that lead to campaign donations. His reaction after reading U.S. Supreme Court Chief Justice John Roberts’ recent ruling (McCutcheon et al vs. the Federal Election Commission) that struck down the limit on the aggregate amount donors can contribute to congressional candidates included this:

“Dude, you have no idea what you are talking about.”

Roberts’ description of the donor-candidate transactions that lead to millions and millions of dollars in campaign contributions bears little relationship to what happens in the real world in which well-heeled individuals and groups absolutely do buy influence, Meffert said.  

Writing for the controlling plurality of four justices, Roberts’ ruling was constructed on these elements:

  • Campaign contributions are so vital to freedom of speech that Congress can regulate them only to the degree necessary to prevent corruption or the appearance of corruption.

  • Corruption (or at least the kind of corruption that Congress constitutionally is permitted to target) consists only of the use of quid-pro-quo bribery to buy votes, as when a donor says to a candidate: “I will give you this amount of money if you will vote for a tax break that will help my company’s bottom line.” And the candidate says OK and takes the money, gets elected and votes for the tax break.

  • The aggregate limit on the amount that a given donor can give to all candidates or party-sponsored campaign organizations combined does not deter corruption because a particular candidate is likely to be corrupted only by money given directly to his campaign.

  • Yes, Donor A might try to get additional money to Candidate B by giving it to a third party, but the donor cannot be assured that the money will reach Candidate B and the candidate won’t know that the money came from Donor A, so it wouldn’t buy much corrupting influence.

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Meffert is familiar with the ways political campaigns and special interests with concrete legislative agendas have developed for turning campaign contributions into support for those agendas. He says it often amounts to a quid pro quo or something so close to one that the difference is entirely semantic.

Before running for office, Meffert held high-ranking positions with two health care-related trade associations that donated to candidates through a PAC (Political Action Committee). Such organizations have specific legislative goals that have little do with the general welfare of the nation and are often technical matters, well below the radar screen of public discussion. Such groups are obviously using their political dollars to help elect members of Congress.

Then in 2010, Meffert ran for Congress and won the Democratic nomination to challenge incumbent Republican Rep. Erik Paulsen in Minnesota’s suburban Third District. (Meffert ended up losing to Paulsen by a 59-to-37 percent margin.) Based on that campaign experience, here’s some of what he said in our conversation about the reality of campaign fundraising and how it differs from what Roberts described in his opinion:

Full-time job raising money

Raising money is essentially “the full-time job of a person running for office,” Meffert said. That necessarily “narrows the number of people and the kind of people you talk to and listen to” because you are talking mostly to people who might give you money or might arrange for others to give you money.

The candidate’s time is in high demand, so the campaign staff and others do a lot of work so that by the time the candidate places a phone call to a potential contributor, the deal has essentially been struck. The donors, especially a PAC like the one Meffert used to manage, or a “bundler” who distributes money collected from others, are not asking for commitments on philosophical war-and-peace issues.

“Most of the time, especially with the bundlers, it’s something very specific they want done,” Meffert said. “It’s a change in an obscure regulation or it’s something in the tax code that might be advantageous, something buried deep within the Affordable Care Act or the Medicaid structure or within the agriculture bill.”

Jim Meffert

Everyone involved in the process understands that a commitment is being exchanged for the contribution, Meffert said. “The correlations between the money and the issue are just too direct… That sense of quid pro quo, that feeling that this is a form of legalized corruption, is shared by people on both ends of the transaction.”

By the time the candidate actually calls the contributor, the understanding has been reached by members of the campaign staff, perhaps the campaign’s finance director. The donor has made clear what is wanted and the staff has agreed to it. Then the candidate actually makes the call or attends a meeting with the donor.

“You sit down with an interest group or with an individual,” Meffert said. “You’ve been told ahead of time by your campaign staff what they want. You go in and you talk about it and you talk about how important it is to you and what you will do to help them on that particular issue. There’s a specific dollar amount that’s already been discussed. You do that and the money comes from the individuals. It’s pretty much as quid pro quo as you’re going to get,” except that you don’t actually say that you are taking that position in order to get that contribution.

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Meffert said that in reading the Roberts ruling (also signed by Justices Antonin Scalia, Samuel Alito and Anthony Kennedy), he was struck by how little Roberts understood about how the donor-candidate interaction actually works. Roberts’ version and his discussion of the ban on quid-pro-quo donations didn’t “pass the laugh test,” Meffert said.

No politicians on court

Meffert mentioned that in the past, the Supreme Court was often a combination of people with primarily judicial backgrounds and others, including former governors and senators who had actually been practicing politicians and had a clue how politics worked. But the current court doesn’t have a single member who has ever run for public office.

The McCutcheon ruling doesn’t have a specific effect on the quid-pro-quo dynamic as Meffert described it, since the court has left in place, for now, the limit on the amount that an individual donor can give to a specific candidate or party organization.

The McCutcheon ruling only removes the so-called “aggregate limit,” which limited the total amount that a given donor could give to all candidates or party organizations put together. But because of the degree to which money gets passed around from party committees or so-called leadership PACs to a campaign like Meffert’s, the aggregate cap was still relevant. A donor who had already given the maximum allowed to the campaign would still get calls, letting the donor know that there are other organizations to which they could contribute that would result in helping the same candidate’s campaign.

But the professionals would know when a particular donor had reached the aggregate limit and they would simply stop calling that donor.

Now, under McCutcheon, that stop-calling moment won’t occur.