Why The Supreme Court Says It’s Alright For Rubio To Have Biweekly Calls With A GOP Megadonor

Republican Billionaire Sheldon Adelson in Macau, where he several billion-dollar casino complexes. CREDIT: AP PHOTO/KIN CHEUNG
Republican Billionaire Sheldon Adelson in Macau, where he several billion-dollar casino complexes. CREDIT: AP PHOTO/KIN CHEUNG

In 2012, Sheldon Adelson’s $25 billion fortune was more than the gross domestic product of two dozen nations put together — and Adelson’s wealth has only grown since 2012. He’s now worth $32 billion. Adelson reportedly spent $150 million on the 2012 elections, which is a lot of money to most people, but only a tiny fraction of his massive fortune.

Adelson also reportedly has a new favorite presidential candidate. Sen. Marco Rubio (R-FL) has “been calling Adelson about once every two weeks, providing him with meticulous updates on his nascent campaign,” according to Politico. The two men “had a private dinner at Charlie Palmer, a posh steakhouse at the foot of Capitol Hill” last month, where they reportedly talked for hours. Politico titled its report on the Rubio/Adelson connection, “Marco Rubio takes lead in Sheldon Adelson primary,” as if Adelson’s support is worth as much as an entire state’s GOP primary electorate.

According to the Supreme Court of the United States, this is exactly how democracy should work. As Justice Anthony Kennedy wrote for the Court in Citizens United v. FEC,

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.

Prior to Citizens United, the Supreme Court recognized that campaign finance laws may been enacted when necessary “to limit the actuality and appearance of corruption resulting from large individual financial contributions.” Though Citizens United ostensibly maintains this framework, it does so by defining the word “corruption” so narrowly that it is practically meaningless. As Chief Justice John Roberts explained in a follow-up decision to Citizens United, campaign finance laws now 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,” the Supreme Court says that no corruption exists. Mere influence buying, according to a majority of the Supreme Court, is not corruption.

The holding of Citizens United and its progeny, however, goes far beyond limiting campaign finance regulation that targets influence-buying. These cases also draw a bright line between money given directly to candidates, which is still subject to some restrictions, and money given to ostensibly independent groups such as a Super PAC supporting Rubio. “[I]ndependent expenditures,” Kennedy proclaims in Citizens United, “do not give rise to corruption or the appearance of corruption.” Thus, so long as Adelson lavishes donations on Rubio’s super PAC and not on his campaign, he is free to spend millions or even billions to buy the senator a new home at 1600 Pennsylvania Avenue.

It’s worth noting that this distinction between donations to candidates and so-called “independent expenditures” is not new. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, it is “rooted in the original sin of American campaign-finance law — the Court’s decision in Buckley v. Valeo (1976) — which created a very similar distinction.” Buckley, however, also explained that the mere appearance of corruption also threatens the integrity of American democracy.

“Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions,” the Court explained in Buckley. “Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.’” This sentiment is largely absent from decisions such as Citizens United.

If the Court still heeded this concern about the appearance of corruption, there is little doubt that Citizens United would have been decided the other way. A 2012 poll found that “69% of respondents agreed that ‘new rules that let corporations, unions and people give unlimited money to Super PACs will lead to corruption,’” while only 15 percent disagreed. That 15 percent is less than the percentage of Americans who “say they have actually seen a ghost or believe they have been in one’s presence” and it is less than the percent who “accept the existence of spells or witchcraft,” according to a 2007 poll.