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

REUTERS/Gary Cameron
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.

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.

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.

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.

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Comments (35)

  1. Submitted by John Reinan on 04/07/2014 - 11:17 am.

    “Dude, you have no idea:” the best soundbite so far

    And Meffert’s comment about the narrow background of modern justices has been overlooked by the national media covering this. It’s an important point. Look at just a few justices from the last century. Many of them are no longer well-known names, but they had active political careers before joining the court.

    Charles Evans Hughes: governor of New York, presidential candidate
    Fred Vinson: U.S. congressman from Kentucky and Treasury secretary
    Earl Warren: governor of California, district attorney and state attorney general
    James Byrnes: governor of S.C., U.S. congressman and senator, U.S. Secretary of State
    Sherman Minton: state utility commissioner and U.S. senator from Indiana
    Hugo Black: county prosecutor, U.S. senator from Alabama (and KKK member)
    Stanley Reed: state assemblyman from Kentucky
    Harold Burton: mayor of Cleveland, state representative and U.S. senator from Ohio
    Frank Murphy: mayor of Detroit, governor of Michigan
    Pierce Butler: Ramsey County attorney

    There are many others. In fact, Harlan F. Stone, appointed Chief Justice in 1941, was the first Chief Justice not to have served in elected office.

    Now all the justices come from the same narrow background of legal training at a handful of elite schools, followed by prestigious federal clerkships and then either government or corporate work.

    In fact, the usual strategy now is for aspiring legal superstars to do or say nothing that could possibly be controversial, so as to leave no record that could cause someone to oppose their nomination. It’s the old tabula rasa strategy.

  2. Submitted by Dennis Tester on 04/07/2014 - 11:43 am.

    Meffert’s argument is that politicians are corrupt

    Therefore, we must limit the corruption by limiting political contributions.

    Nonsense. If a government lawyer is running for congress against a small businessman, it doesn’t take a genius to conclude that they will be diametrically opposed to legislation that increases or decreases taxes or government regulation. Those who agree with a candidate’s views have the right to support them with any level of financial contribution they so choose, with a reasonable expectation that the candidate they support will vote on that legislation accordingly.

    It’s not quid pro quo when the candidate who states his position on the fundamentals of government, such as taxation and regulation, are then supported by those who agree with those positions.

    Legislators who vote according to their stated principles are being honest with their supporters and non-supporters alike. No one would accuse a democrat for being corrupt when he votes to raise taxes, increase spending, or increase government regulations, because that’s what they do. Both his supporters and his opponents expect from him.

    A republican candidate will always tell you he’s in favor of lower taxes and less regulation. You know what you’re getting from that legislator.

    Problems arise, and charges of corruption perhaps have merit, when legislators suddenly vote in an unexpected way. When republicans start voting for socialized medicine, or tax increases, or more federal regulations, we start to wonder why and begin examining what could possibly have influenced him to vote contrary to his stated principles on such matters.

    But bottom line, all laws covering campaign financing are unconstitutional. Allowing the government to limit political speech (contributions and spending of those contributions) is tantamount to allowing the government to limit the number of barrels of ink a newspaper may buy.

    Dealing with corrupt politicians should be done by the voters at the ballot box by throwing them out of office.

    • Submitted by Geo. Greene on 04/07/2014 - 03:02 pm.

      No, that’s not what he’s saying.

      He’s saying that the way the system works, you can buy votes for your legislation as long as you don’t explicitly say it -and it’s legal. And it shouldn’t be.

      When the rich get to use the Grateful Dead’s sound system and the rest of us can only whisper, that’s a problem. However, voters should remember that all that money is spent trying to influence voters. Republicans are against any and all campaign reform and try as hard as possible to limit the number and kinds of people who vote. They’re giddy about the court’s vote and not really because of anything to do with free speech.

      Voters have the power to stop the taking of their rights and freedoms by voting Republicans out of office.

  3. Submitted by Todd Hintz on 04/07/2014 - 11:54 am.

    Free Speech

    If money equals speech, then people with more money get more speech. And people with less money are heard less and those with no money are not heard at all.

    We need to get some sanity back into the political process and not just with the money issue. Just as importantly, corporations should not be considered people in any sense of the word. As I’ve said many times before, the preamble says “we, the people,” not “we, the limited liability corporation.”

    Let’s get the government working for people, not companies.

  4. Submitted by Dennis Tester on 04/07/2014 - 01:20 pm.

    “corporations should not be considered people

    in any sense of the word.”

    Does that mean they shouldn’t be taxed and regulated like people are? Does that mean they can say whatever they want in their ads without being held accountable?

    If you’re going to make them pay the taxes and obey the laws, then you’re going to have to give them the right to lobby congress to affect those taxes and laws.

    • Submitted by Joel Fischer on 04/07/2014 - 02:03 pm.

      Was there something stopping them, as individuals,

      before the Citizens United decision, from lobbying congress?

      Every citizen should have the same right to affect legislation. You are advocating that certain people, i.e. corporations, should have additional rights beyond their rights as an individual citizen to lobby congress.

    • Submitted by Paul Brandon on 04/07/2014 - 02:42 pm.

      The ruling has noting to do with lobbying

      It concerns contributions to political campaigns.
      And corporations are not taxed the way individuals are — usually they pay lower tax rates. Are you advocating the elimination of the corporate income tax structure.
      And yes, there are some problems involved in applying the same laws to corporations (as opposed to the individual members of that corporation) as to individuals. How do you put a corporation in jail?
      If a corporation causes the death of someone in a state which has the death penalty, can you subject the entire corporation to the death penalty?
      Inquiring minds want to know.

    • Submitted by Joe Musich on 04/07/2014 - 04:18 pm.

      wow !

      I am as big and as influential as name for corporation. Thanks Mr Tester for increasing my bottom line and my personal importance.

    • Submitted by Marc Post on 04/07/2014 - 04:22 pm.

      No we don’t

      You say “If you’re going to make them pay the taxes and obey the laws, then you’re going to have to give them the right to lobby congress to affect those taxes and laws.”

      No we don’t! The stock holders and employees of the corporations already hold those rights. They are NOT entitled to additional rights.

  5. Submitted by Ron Gotzman on 04/07/2014 - 01:49 pm.

    Question?

    Do public employee unions and teacher unions have a corrupting influence in politics through their political contributions or is it just the rich and business that are corrupt?

    • Submitted by RB Holbrook on 04/07/2014 - 02:31 pm.

      Clarification

      Do you think this case would have come out the same way if “public employee unions and teacher unions” were donating the same amount of money as business interests?

    • Submitted by Paul Brandon on 04/07/2014 - 03:47 pm.

      Unions represent

      the opinions of their members, citizens, who have equal votes in the election of the union leaderships.
      The same cannot be said for corporations. They are not simply aggregates of citizens. Since many corporations are multinational in nature, the corporations who buy elected officials may not represent American citizens at all.
      Even if we side step the corruption issue, corporations simply have different interests than do unions or most American citizens.

    • Submitted by Peder DeFor on 04/08/2014 - 07:45 am.

      Corrupt?

      But Ron, teachers and public unions all believe in the *correct* things! How could they possibly be corrupt? True, they’re giving money to the people who will set their salaries and benefits but how could that possibly go wrong? I suppose in some imperfect world, that could lead to corruption, but again, these are citizens, not corporations and therefore should be trusted for some reason.

      Setting sarcasm aside, of course it’s a problem, an obvious one. And the continual attempts by the Dems to put unions into some ‘other’ category casts doubt on any principled attempt to stop corruption here. If a teacher’s union meets with a candidate and suggests that they want someone who will further their interests, that’s as much quid pro quo corruption as a corporation asking for a tax break.

      • Submitted by Paul Brandon on 04/08/2014 - 09:34 am.

        The whole point of unions

        is to bargain equitably with the people who control their working conditions.
        Since unions represent only a small portion of voters (I seem to recall that something like 17% of workers are unionized, and not all voters are workers), by themselves they can’t elect representatives. They need support from a considerable larger number of non union individuals.
        So how are public employees any different?
        And of course they still have civil rights.
        You might read the history of the working conditions of teachers in pre union days.

        And of course corruption is always a possibility; that is why we have laws.
        In the case of unions, the membership (and their families and friends) have broader interests than just their jobs, and their own interests in reducing corruption in unions.
        It’s not clear that current unions as a whole are any more corrupt than current municipal governments (talking about snake pits).

        • Submitted by Peder DeFor on 04/08/2014 - 10:50 am.

          Unions

          I’m not sure that I understand exactly what you’re arguing here. I will say that the number of union motivated votes is much larger than the number of people whose vote will be swayed if a company like Medtronic gets a tax break or not. That’s especially true if you include retired members who rely on large pensions. On their own, a union like the teachers union, has more political sway in votes (and often in direct money) than even a large company.
          If you’re suggesting that corporate money and influence is inherently worse than money and influence from unions, then I think you’re completely wrong. (To be fair, I’m not sure if that’s what you’re saying.) If we want politicians to be motivated more by principle and less by money, then we can’t put ideological blinders on.

          • Submitted by Paul Brandon on 04/08/2014 - 06:36 pm.

            What I’m saying is (in part)

            that unions are aggregates of individuals exercising their constitution (first amendment) “….right of the people peaceably to assemble, and to petition the Government….”.
            Since there are more individuals belonging to unions than members of corporations, they will have more votes — that’s the nature of democracy. Including shareholders would be another matter, but most shareholders such as you and I have little say on corporate conduct; political or otherwise.

            Corporate money when its source is identifiable is not inherently more corrupting than union money.
            Money given by Citizens United type organizations whose donors are NOT identifiable is another matter.

    • Submitted by Jon Lord on 04/09/2014 - 07:59 am.

      Gee Ron

      Only business and the rich obviously. Not all of them, just most of them though…eh? Political contributions are political contributions no matter who make them. This is about taking the cap off the “amount” of money that can be given. It applies across the board but the most wealthy contributors are given an advantage now. Money is now “free speech”. Each dollar is now one voice for the contributor. One million dollars would be one million free speech voices. So, who’s got the most money?

  6. Submitted by Greg Kapphahn on 04/07/2014 - 05:42 pm.

    Chief Justice Roberts is NOT Ignoring the Real World

    He’s counting on it.

    He knows EXACTLY what the effect of this ruling will be, and he’s lying through his teeth when he pretends that he doesn’t know and isn’t expecting exactly the result the rest of us are expecting.

    Their pretending to use the Constitution of the United States to create rulings which do nothing but further the interests of wealthy individuals and corporations and the GOP,…

    which is what they have ALWAYS intended and consistently done, reveals the “conservative” majority of the Roberts court to be the most biased, corrupt and dishonest court in many, many years.

  7. Submitted by David Markle on 04/07/2014 - 06:00 pm.

    Campaign finance and civil liberties

    Roberts and his conservative majority decree that money is speech and freedom of speech trumps everything.

    But shouldn’t the exercise of civil liberties be subject to balancing when one party’s exercise of a right infringes on another’s exercise of a right?

    Don’t campaign finance laws help the public enjoy their right to due process and equal protection?

    • Submitted by Peder DeFor on 04/08/2014 - 07:47 am.

      One Party

      David, it seems that plenty of money is being spent from both parties. Lots of viewpoints are getting a public airing. If we were at a point where only one ideological view could afford to talk, that would be a problem. We clearly aren’t anywhere near that.

      • Submitted by Paul Brandon on 04/09/2014 - 09:22 am.

        We’re someplace in the middle

        Both parties (and their supporters, which is the point) spend large amounts of money.
        But when the election is done, several times as much has been spent supporting Republican campaigns.

        • Submitted by Peder DeFor on 04/09/2014 - 09:28 pm.

          This Doesn’t Seem to Be True

          “But when the election is done, several times as much has been spent supporting Republican campaigns.”

          My Google-Fu isn’t giving me any good total numbers but what I can find is that Obama outspent Romney by a small margin. Republicans may have had a small edge in the rest of spending but not a large one. Certainly not ‘several times’.

  8. Submitted by Ron Gotzman on 04/07/2014 - 08:04 pm.

    Real World?

    Thanks Paul,

    I am glad to know that unions are not invovled in “buying elected officials.”

    • Submitted by Paul Brandon on 04/09/2014 - 09:25 am.

      Please cite proof of an instance

      in recent history where a union has paid money directly to the personal finances of an elected official (not to their political campaigns). THAT would be corruption.
      Or, you might cite proof of a recent instance where union funds have been used to pay someone to cast a particular vote.
      “Everyone knows that….” doesn’t count.

      • Submitted by Peder DeFor on 04/09/2014 - 09:33 pm.

        Proof

        Paul, if we use your standard of proof than this entire article is invalid. The entire argument here is that wink wink acknowledgment is done before contributions are made. Is there any reason to think that unions don’t have access to the candidates that they endorse? It seems pretty naive to think that there is no communication between DFL candidates and various union officials.

  9. Submitted by Peder DeFor on 04/08/2014 - 08:19 am.

    More Calls to Donors

    My take away from this article is that the only real change with this ruling is that wealthy donors will probably be contacted more by campaigns than before. That doesn’t seem like a big deal to me. If anyone can explain what I’m missing there, I’d welcome the explanation.
    Justice Roberts might not be addressing quid pro quo corruption, but this case doesn’t seem to lead to addressing it. The question before the court had to do with the number of candidates that an individual can donate to. I have to agree with the Chief Justice that it seems strange that you can donate to so many, but *one* more makes it corruption.

  10. Submitted by Peder DeFor on 04/08/2014 - 08:38 am.

    Stopping Corruption

    This is a very interesting article. I’ve never gotten to hear about this part of the sausage making. I suppose, it’s not that surprising, given the results but it’s interesting to hear about the minute technical changes that donors want. That certainly sounds like quid pro quo but I’m extremely doubtful that cash limits will change the practice. How much cash would it take to convince a candidate to support an obscure tax extension? Especially if it’s buried in a 5000 page document that literally no one will ever read all the way through?
    So how to stop the practice? Ban meetings with candidates? That seems like an even higher constitutional bar to jump. Disallow personal giving? Also against the constitution but even if it wasn’t, there are enough other channels that it won’t matter. For instance, it’s pretty easy to find a fluffy job for a spouse or child. So what to do?
    The standard libertarian/conservative answer of how to reduce money in politics is to reduce how much politics effects money. It’s true that corporations wouldn’t care about giving if they didn’t have to worry that a competitor would give instead and create an advantage but frankly, we’re well past the place where we can easily reduce the political/corporate tango.
    Well, here’s an idea. How about if we ask our candidates to reduce the size of the bills that they vote on? It’s much harder to hide corporate presents inside of a ten page bill than it is a 5000 page one. It’s also easier to vote on a smaller bill when you know *exactly* what’s in it.
    I can’t think of any right/left advantage in getting away from omnibus bills. I don’t know of any technical reason why we need to pass unreadable monsters instead of smaller, more specific ones. This one thing would make it much harder to hide the shady stuff and much, much harder for pols to vote for shady things.

    • Submitted by Dennis Tester on 04/08/2014 - 11:40 am.

      One of the arguments for tax reform

      is to take the power of the tax code out of the hands of politicians. Politicians historically have rewarded their friends and punished their enemies via the tax code with differing rates, tax exemptions, tax deductions, etc.

      A flat tax with no exemptions, or an even better solution, the elimination of the income tax and the IRS altogether, to be replaced with a consumption tax (federal sales tax) would go a long way toward reducing money in politics by reducing the politicians’ power to tax.

      • Submitted by Peder DeFor on 04/08/2014 - 02:43 pm.

        Simpler Taxes

        Dennis, I can’t disagree with any of that. I’ll add that broader and simpler regulations on business would have the same effect. If the rules are easy to understand and apply to everyone, it’s much harder to carve out special treatment.

      • Submitted by Paul Brandon on 04/09/2014 - 09:32 am.

        The usual

        Since the poor spend a larger proportion of their money, a federal sales tax would be highly regressive unless paired with a very strong investment tax on all money -earned- in the United States, not simply on the income from investments earned onshore.
        And of course it would have to define ‘income’ broadly enough to include the kind of bonuses (stock options, etc) that financiers have been using to avoid paying income taxes.

  11. Submitted by Jon Lord on 04/09/2014 - 08:30 am.

    I think this ruling

    This ruling is a wake-up call about how we implement campaigns in this country. The more money a candidate gets the more that candidate can afford on television ads, etc. The poorer the candidate the less able that candidate can afford. I’m pretty sure that must be obvious.

    In a truly fair system, all candidates would be limited to the same, or unlimited to the same, for their campaigns. All money donated, from whatever the source, should be equally split between all candidates. Equal free speech for all!

    I also agree that ‘plain language’, which one person seems to allude to, is needed across the board when it comes to our laws and regulations so that the average person can clearly understand what is being written into law. This ruling should simply read “The more money one has the more they can give to the candidates of their choosing” period.

  12. Submitted by John Bracken on 04/10/2014 - 12:47 pm.

    Hypocrisy

    Barack Obama, the candidate said in 2006 that too much money in politics was a problem. In 2008 he forgot everything he had said two years earlier. As a conservative, I lost faith in politics/politicians during Dubya’s incompetent time. As an American, I lost faith in people and our country watching President Obama. Now I just live for myself, my family and helping my friends. To heck with America. Big business, big union. America is all special interest groups at the trough. Politicians are liars, the media stopped being journalists decades ago, and people all call people they don’t agree with names (“Haters” being the best example of name calling).

  13. Submitted by David Markle on 04/12/2014 - 07:05 pm.

    More on civil liberties

    In my comment of April 7, above, I meant “party” in the legal sense, not “political party.”

    If money is speech, and free speech must not be restricted, then obviously it’s OK to pay individuals to vote, right?

    No, I feel that unrestricted expenditures on political campaigns violate my right to vote in a free, fair and transparent election process. In other words, reasonable restrictions on campaign contributions help protect my due process and equal protection rights.

  14. Submitted by Curt Carlson on 04/13/2014 - 10:13 am.

    No idea?

    On the contrary, I believe Roberts knew perfectly well what he was writing about, but he cast it in a way to obfuscate. The intent of the decision is simply to further the development of plutocracy.

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