IN its landmark 1976 decision Buckley v.Valeo, the Supreme Court affirmed the constitutionality of laws aimed at "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office."
In that light, let's take a look at the record of campaign contributions to Spencer Bachus, a Republican congressman from Alabama and a prime example of the interaction between special interest campaign contributions and the legislative process.
For all intents and purposes, Bachus, who has announced that he plans to retire in January 2015, has spent his career as a wholly owned subsidiary of the finance industry. Bachus acknowledged as much in an interview with the Birmingham News on Dec. 9, 2010, shortly before he became chairman of the House Committee on Financial Services.
"In Washington, the view is that the banks are to be regulated," the Alabama congressman told the News. "My view is that Washington and the regulators are there to serve the banks."
IT'S a political chicken-and-egg problem. Which came first, the elected official's policy positions or the money given to his or her campaign? In Bachus's case, it's the chicken – his pro-bank views – that came first, followed by dozens of golden eggs. The relationship between the congressman and the industry has been a two-way street. This self-described servant of the banks has been amply rewarded for his loyal service.
Over the last three election cycles, 2007-8, 2009-10 and 2011-12, Bachus raised a total of $5.61 million, according to Open Secrets, a public interest group that tracks campaign contributions and lobbying. Of that $5.61 million, more than half, $3.08 million, came from the FIRE category — finance, insurance and real estate (the real estate industry is part of this group because it depends on mortgage financing). In addition, Bachus's leadership PAC, the Growth and Prosperity Political Action Committee, received at least $455,000 in 2011-12 from PACs operated by companies in the FIRE category.
At the start of this year, Bachus was replaced as chairman of the Financial Services Committee by Jeb Hensarling, Republican of Texas.
In terms of campaign finance, Hensarling is a Bachus clone. In 2011-12, Hensarling's re-election committee raised $3.02 million, and his leadership committee – a committee he uses to contribute to fellow Republicans – raised $1.04 million, for a total of $4.06 million. Just under half of the cash Hensarling raised came from individuals and PACs in the FIRE category.
If anything, the ascent of Hensarling to the chairmanship of the Financial Services Committee is even more advantageous to the finance industry. Last month, Hensarling, a true believer in the virtues of banking in a free market system, wrote an op-ed for The American Banker arguing that it was excessive regulation of the finance industry that brought the nation to its knees during the 2007-8 financial collapse: "The great tragedy of the financial crisis," he wrote, "was not that Washington regulations failed to prevent it, but instead that Washington regulations helped lead us into it."
WHAT is the relevance of the symbiotic relationship between the finance industry and the House Financial Services Committee and the current campaign finance case before the Supreme Court, McCutcheon v Federal Election Commission?
First and foremost, the McCutcheon case revolves around the issue of "corruption and the appearance of corruption."
Shaun McCutcheon, the chief executive officer of Coalmont Electrical Development, is contesting federal laws that restrict the total or "aggregate" amount an individual can donate to federal candidates and political parties, on the grounds that this restriction unconstitutionally limits his free speech rights. (There are at present no aggregate limits on the total amount that PACS and political party committees can contribute to candidates for federal office; McCutcheon does not engage this issue.)
Ronald Collins and David Skover, two law professors who contribute commentary to ScotusBlog, a Web site devoted to Supreme Court cases, summarize McCutcheon's position: "During the 2011-2012 federal election cycle," they write, "McCutcheon contributed to sixteen federal candidates and sought to contribute to twelve others. But for existing law, Mr. McCutcheon would have given $25,000 to each of three political committees established by the Republican Party. The R.N.C. wished to receive additional contributions from individuals like McCutcheon. To do any of this, however, would have contravened existing aggregate contribution limits. 'I just want to donate to more candidates,' said McCutcheon, adding rhetorically: 'Why am I not free to spend money however I want?' "
McCutcheon is explicitly not challenging limits on individual campaign donations to federal candidates (set at $2,600), to political parties ($32,400), to state parties ($10,000) or to PACs ($5,000). Instead, McCutcheon's brief argues that it is unconstitutional to place a $123,200 ceiling on an individual's total contribution every two years, including a maximum of $48,600 to candidates and $74,600 to all PACs and parties: "Aggregate limits," it argues, "operate to prevent an individual from associating with, expressing support for, and assisting 'too many' candidates, political party committees, or PACs in a single election."
McCutcheon specifically addresses the issue of corruption this way: "By its very nature, a contribution to a candidate, political party committee, or PAC that is within the legal base limit — that is, a contribution below the threshold at which Congress determined that a cognizable risk of corruption arises — does not raise the specter of corruption. The fact that an individual might choose to make many such innocuous contributions does not render any of them any more troubling or likely to corrupt its recipient."
Donald B. Virrilli, Jr., the solicitor general, who is arguing the government's case in support of the restrictions, contended before the court that corruption and the appearance of corruption are, in fact, exactly what is at stake: "Aggregate limits," he suggested, "combat corruption both by blocking circumvention of individual contribution limits and, equally fundamentally, by serving as a bulwark against a campaign finance system dominated by massive individual contributions in which the dangers of quid pro quo corruption would be obvious and inherent and the corrosive appearance of corruption would be overwhelming."
Would lifting aggregate limits change the fund-raising practices of Bachus, Hensarling and other members of the House and Senate? Not much. The existing system with aggregate limits has allowed special interests to dominate political fund-raising.
A prime example is John Boehner, speaker of the House. In the 2011-12 election cycle, under the aggregate limit regime, Boehner raised a total of $25.74 million for his own campaign committee and for his leadership committee. Figure 1 illustrates the Open Secrets breakdown of top industry sectors backing Boehner.
Cross the aisle for a look at the industry sectors (Figure 2) backing Nancy Pelosi, the Democratic minority leader, who raised a total of $3.4 million in 2011-12.
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