Mention the word “Nixonian,” and many people’s mind immediately go to Watergate, the break-in scandal and subsequent cover-up that eventually forced President Richard Nixon to resign. Watergate, however, was only one strand of a web of access-buying scandals, pay-to-play deals between the White House and major industries, and, in at least one instance, an effort to sell an ambassadorship for $100,000 in campaign donations.
And yet, according to an opinion Chief Justice John Roberts handed down last week, most of the Nixon Administration’s shadiest efforts to raise campaign funds do not qualify as “corruption.”
In 1974, a Senate Select Committee on Presidential Campaign Activities chaired by Sen. Sam Ervin (D-NC) revealed activities that nearly anyone other than the five justices who signed on to Roberts’ decision in McCutcheon v. FEC would unreservedly describe as corruption. In the early 1970s, for example, the dairy industry desired increased price supports from the federal government, but Secretary of Agriculture Clifford Hardin has decided not to give these price supports to the milk producers. In response, various dairy industry organizations pledged $2 million to Nixon’s reelection campaign — and then developed a complicated scheme to launder the money through various small donations to “hundreds of committees in various states which could then hold the money for the President’s reelection campaign, so as to permit the producers to meet independent reporting requirements without disclosure.”
President Nixon later agreed to a meeting with industry representatives, and he decided to overrule his Agriculture Secretary. The milk producers got their price supports.
The Ervin report “identified over $1.8 million in Presidential campaign contributions as ascribable, in whole or in part, to 31 persons holding ambassadorial appointments from President Nixon, and stated that six other large contributors, accounting for $3 million, appear to have been actively seeking such appointment at the time of their contributions.” Outside of the White House, the report uncovered “lavish contributions” to members of Congress from both political parties. The chairman of one oil company testified that executives perceived campaign donations as a “calling card” that would “get us in the door and make our point of view heard.” American Airlines’ former chair testified that many companies funneled money to politicians “in response to pressure for fear of a competitive disadvantage that might result” if they did not buy off lawmakers. In essence, businesses feared that if they did not give money to elected officials, but their competitors did, then their competition could use their enhanced access to politicians in order to gain a competitive advantage in the marketplace.
And yet, according to Chief Justice Roberts and his fellow conservative justices, hardly any of this activity amounts to “corruption.”
In its 1976 decision in Buckley v. Valeo, the Supreme Court upheld much of, but not all of, the campaign finance regulation enacted to prevent the kind of corruption that infected the Nixon White House and the Nixon era Congress. Although Buckley held that political campaign contributions are a form a speech entitled to First Amendment protection, it also concluded that Congress may regulate these contributions in order to “limit the actuality and appearance of corruption resulting from large individual financial contributions.”
Roberts’ opinion in McCutcheon, however, defines the word “corruption” so narrowly that it is practically meaningless. In order to survive constitutional review, Roberts writes, a campaign finance regulation must “target what we have called “quid pro quo” corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money.” Thus, unless a donor offers “dollars for political favors,” no corruption exists.
Lest there be any doubt, this narrow understanding of the word “corruption” does not capture cases where a donor pays off a politician in order to buy access. To the contrary, as the conservative justices held in Citizens United v. FEC, “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt” (The word “speakers,” in this context, is used to refer to what most people describe as “donors”). Indeed, Citizens United goes much further than simply claiming that dollars-for-access arrangements must be tolerated. At one point, it seems to view them as an objective good:
Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.
Democracy certainly is premised on responsiveness. Though it is a strange definition of democracy that offers enhanced responsiveness to those who can afford to pay for it.
Under Roberts’ definition of “corruption” most of the corrupt activities of the Nixon era would be viewed as completely benign. Though an isolated incident, where a Nixon fundraiser promised that the president would make a donor Ambassador to Trinidad in return for $100,000, would qualify as an explicit “dollars for political favors,” arrangement, politicians who give greater access to their donors are not “corrupt” under McCutcheon and Citizens United unless they offer to exchange votes or similar favors in return for campaign donations. Indeed, even the dairy industry’s $2 million bid for a meeting with President Nixon may not qualify as “corruption,” as Roberts understands the word, because there is some uncertainty as to whether the $2 million donation was “conditioned upon or ‘linked’ to” the President agreeing to make specific changes to the administration’s policies. According to Roberts’ opinion in McCutcheon,
Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.
Very few Americans agree with Roberts’ view of what constitutes corruption. Indeed, a 2012 poll determined that 69 percent of Americans believed that the rule emerging from cases like Citizens United allowing “corporations, unions and people give unlimited money to Super PACs will lead to corruption.” Just 15 percent disagreed.
To put that number in perspective, another poll found that fully 19 percent of Americans believe in “spells or witchcraft” — a full four percentage points more than those who agree with Roberts’ narrow definition of “corruption.”