Contractors and Citizens United

Mark Kleiman has some advice for wannabe governor Whitman in California:

Yes, California prisons are more expensive than they need to be. Good luck with reducing costs. Shipping prisoners to out-of-state for-profit prison firms is a good way of increasing your flow of campaign contributions, but generally not a good way of saving money: the for-profits are experts at “creaming” low-cost inmates while charging rates based on average cost, and “pro-business” Governors aren’t very good at driving hard bargains.

The whole genre of government contracting is rife with this sort of abuse. It’s often the case that, in principle, contracting-out should be able to save money. And it’s equally often the case that, in practice, it doesn’t do so in no small part because the very same firms that benefit from poorly managed contracting also get to intervene in the electoral process.

Speaking of which, just yesterday I was reading Sam Issacharoff’s new essay “On Political Corruption” that discusses this issue in the context of the Citizens United decision:

A tightly drawn prohibition premised on the effects of “pay-to-play” on public policy could potentially survive scrutiny under Citizens United as a constitutional first step. Moreover, the regulated bodies might even welcome such a law as a protection against public officials intent on using their position to solicit funds for campaign expenditures. Such a measure would be only a partial inroad into the accompanying world of lobbying and the sector of the economy that does not face incumbent state officials as contracting parties but as subjects of regulation. Likewise, lawmakers may broaden the protections offered by the Hatch Act amendments by prohibiting contractors from expenditures through PACs, 527 groups or bundling efforts without running afoul of the underlying rationale in Citizens United. Admittedly, these are partial steps. Nonetheless, such approaches do offer alternative insights into the problem of money, not so much in terms of election outcomes but in terms of public policy. Whether an incumbent Congress would welcome such legislation is another matter.

Of course the flipside of optimism about the possibility of such legislation passing constitutional muster is pessimism about the likely consequences of failing to pass it. The Supreme Court’s just opened the door to an already unsatisfactory situation to get much worse. Here’s Customs and Border Patrol paying $240 an hour to a small firm staffed by former Border Patrol leaders to “facilitate discussions among senior Border Patrol leaders.”