For 40 years, the logic of preventing corruption — or its more ambiguous cousin, “the appearance of corruption” — has guided laws governing money in politics. Courts have permitted limits on contributions to candidates only because large contributions from a single donor, like any financial conflict of interest, might distort an elected official’s decisions. But limits designed to achieve any other purpose — such as promoting political equality — have been held to violate the Constitution. This logic precedes the Citizens United decision of 2010 by decades.
The concept of corruption is too narrow to capture all the ways in which money and economic inequality distort democracy. Each of the recent U.S. Supreme Court decisions on campaign finance regulation has shrunk it further. The most recent decision, McCutcheon v. FEC, stated explicitly what the Citizens United majority had only hinted: In their view, only the prevention of quid pro quo corruption (a specific promise of action by an elected official in exchange for a contribution) is a valid basis for the regulation of any kind of political spending. Because quid pro quo corruption is difficult to spot and harder to prove, this is too weak a foundation on which to build any kind of structure to offset the real distortions of democracy by money – the way it governs who can run, which ideas are on the agenda, and who elected officials spend their time listening to.
Rather than hope for the Supreme Court to change its mind, or its membership, a number of legal scholars and activists have sought to frame a new rationale — one that might convince present or future Justices to reconsider invalidated laws (such as the limits on total campaign spending rejected in the 1976 Buckley decision) or put what remains of existing law on a sounder footing. A new legal or public foundation — which is the story we tell about a problem and its solution — should not just be a post hoc justification for old solutions, but should also blaze a path toward creative new approaches.
