10/5/2018 update: Senator Collins just voted to confirm Brett Kavanaugh, meaning that the more than $2 million raised via the Crowdpac campaign will be contributed to Collins’ 2020 Democratic opponent.
A crowdfunding campaign urging Senator Collins to reject Brett Kavanaugh’s Supreme Court confirmation has put campaign finance intellectuals in uncomfortable territory. Reform advocates, who traditionally align with the left, are arguing that the liberal Crowdpac campaign is akin to bribery, while conservatives are speaking out in support of the crowdfunding effort.
Both sides are missing the point, and it’s leading them to odd conclusions. The problem with our campaign finance system isn’t bribery at all — it’s political inequality. Money buying influence is only a problem when that money is overwhelmingly controlled by a small group of wealthy donors whose policy preferences run counter to the public interest.
Once we wrap our heads around this crucial distinction, it becomes clear that the crowdfunding campaign shouldn’t just be legal — it should be celebrated as a means of increasing the political power of poor and middle-class Americans.
The crowdfunding campaign, which has raised nearly $1.5 million in pledges, calls on Collins to “stand up for the people of Maine and for Americans across the country” by voting no on Kavanaugh’s confirmation. If she opts to support Kavanaugh instead, then all that money will be donated to Collins’ eventual Democrat opponent in 2020. “We will get you out of office,” the campaign promises.
The narrow debate over bribery
Shortly after the campaign launched, Collins denounced it as “quid pro quo fundraising” — that is, as bribery. Campaign finance reformers and their opponents immediately began debating whether the crowdfunding effort was illegal under current anti-bribery laws. In the Washington Post, a senior director at the pro-reform Campaign Legal Center argued that the Crowdpac campaign was indeed illegal, because Collins was being offered something of value in exchange for voting against the Republicans’ Supreme Court nominee.
Opponents of campaign finance reform disagreed that the Crowdpac campaign was a bribe, for three reasons. First, Senator Collins has promised to not let money impact her decision-making.
Prominent conservative attorney Jim Bopp, famous for representing the organization Citizens United in the famous Supreme Court case of that name, said as much in a private email to me, which he has since given me permission to quote:
“First, insofar as funding an opponent based on Senator Collins’ official act can be construed as an offer, Senator Collins expressly rejected it, as she has said that she ‘will make up her mind based on the merits of the nomination’ and that the efforts ‘will not play a factor in her decision making whatsoever.’”
Of course, no rational politician would go on the record admitting to having been bribed — so this argument seems flimsy at best.
Conservatives’ second argument, which Crowdpac has echoed, is that the crowdfunding campaign is not offering Collins something of value in exchange for her vote, and that means it can’t be a bribe. As Bopp explained to me,
“Crowdpac has pledged financial support to Senator Collins’ future opponent, not to Senator Collins herself. Quid pro quo corruption requires a direct exchange with Senator Collins, ie, a contribution to her. Crowdpac has not offered a contribution to her.”
Crowdpac spokesman T.J. Adams-Falconer made the same case to Vox earlier this month. As he put it, “no matter which way she votes, Senator Collins will not receive anything of value from this campaign.”
While this line of reasoning may win a legal battle under our severely lacking campaign finance laws, it is simply not true. As I’ve argued before in Vox, donors can wield immense clout over a politician by threatening to support their opponent in the next election. Political campaigning is a zero-sum game; if Collins can prevent a $1.5 million donation to her opponent, this is the equivalent of securing a major donation to her own coffers.
The third approach conservatives take when arguing that the crowdfunding campaign is not bribery is worth taking more seriously. Essentially, they claim that this is just normal politics at work. As Bradley Smith, chairman of the Koch Network-affiliated Institute for Free Speech, wrote in the Washington Post,
“At its core, much political action is transactional. Voters ask candidates to do (or not do) certain things, and either offer their support or threaten to withhold it, depending on the candidate’s response.”
Bopp reiterated this point in his email to me.
“In FEC v. Nat’l Conservative Political Action Committee, the Supreme Court held that a candidate or public official altering or reaffirming her position on an issue because of an offer of a contribution is not quid pro quo corruption. It is democracy.”
It’s easy for progressives to scoff at this suggestion that exchanging money for influence is not corrupt. But arguing the opposite — that exchanging money for influence is corrupt — leads them to an equally uncomfortable conclusion: the thousands of ostensibly middle-class and low-income voters who’ve pooled their money to exert some sway over a Supreme Court nomination are, themselves, engaged in corruption.
Most progressives seem unwilling to acknowledge this catch-22, leading conservative critics to call out their seeming hypocrisy: “the next time progressives complain about the menace of money in politics,” the Wall Street Journal’s editorial team recently wrote, “remind them of their failure to object to the crowdfunding bribe offered to Senator Collins.”
The real problem isn’t bribery
What the WSJ’s editorial board finds so frustrating is that progressives seem to want it both ways: limits on the ability of rich donors to use money to influence policy, and protections for crowdfunding campaigns that trade money for influence.
But progressives only look hypocritical when the conversation about Crowdpac is framed in terms of avoiding bribery. If we instead recognize that the more fundamental goal is promoting political equality, it becomes clear that progressives have a perfectly logical position.
The problem with how money operates in our political system is not that it buys policy outcomes, per se. It’s that the money is disproportionately controlled by a small group of rich people whose policy preferences run counter to those of most Americans.
To understand this, consider two thought experiments. First, imagine that money is equally distributed so that every American has the same amount of wealth. To simplify things further, assume that everyone has the same financial responsibilities, so everyone truly has the same amount of expendable income. In this world, would we really care if money bought policy outcomes? Most of us probably would not, because everyone would have an equal opportunity to use their money to achieve their policy goals. In fact, we’d probably value campaign contributions as a form of true political expression — a signal of the intensity of someone’s preferences. We’d think of donations like phone calls, letters, or any other sign of constituent interest; just as we expect politicians to pay more attention to voters who call their office every day, we’d understand when politicians catered to voters who made bigger donations.
Now, imagine that most of the wealth is concentrated in the hands of the richest 400 families (not unlike today), and these 400 families have the exact same distribution of policy preferences as the rest of the country. In this scenario, the rich using their money to influence policy would have the same effect as in the first scenario, because the exact same policies would be promoted by both sets of donors.
Of course, the extreme concentration of wealth would probably only last for one election cycle, as these public-interest-oriented rich Americans would now be much more supportive of redistribution. But for that one cycle, we still wouldn’t be that concerned about money influencing politics, because that influence would represent the wishes of the broader public.
As these two thought experiments show, the problem isn’t really that money influences policy. It’s that money, which happens to influence policy, in concentrated in the hands of an unrepresentative group of people, and this leads to policy outcomes that fail to represent the will of the people.
Focusing on bribery hurts the poor
When we ignore the true problem of political inequality and instead focus on bribery, we end up with bad policy.
If there is one thing campaign finance reform advocates have learned since passing a series of regulations post-Watergate, it’s that we never manage to restrict all the insidious ways in which money influences policy. As the old saying goes, money is like water; it always finds a way to flow around obstacles in its path. Instead, we do our best to eliminate the most obvious, visible forms of pay-to-play politics. Unfortunately, these are precisely the forms of political spending that are most likely to facilitate small-donor giving.
This is because non-rich Americans need a fundraising effort to be public in order to overcome a mental hurdle that normally prevents them from donating. If you have a spare $25 and oppose Kavanaugh’s nomination to the Supreme Court, you’re unlikely to donate that money. It’s only rational: you know your $25 won’t go very far, so why waste it? Of course, when everyone makes this calculated decision, no money gets raised — even though everyone would prefer to give their $25, if they felt confident they’d be joined by others in doing so. This is called a collective action problem — a situation in which everyone would benefit from taking an action, but some associated cost makes it highly unlikely that any individual will try to solve it on their own.
Crowdfunding campaigns are so powerful because they help low-income people overcome this collective action problem. Not only can potential donors to the anti-Kavanaugh campaign see that others have committed money to a shared pool of funds, but they can verify that those individuals made a credible commitment. Everyone gave money for the same purpose, using the same trusted payment-processing system, so everyone can be trusted to pay up if Collins supports Kavanaugh’s confirmation.
The very rich don’t face this same collective action problem. They know their large checks will have a meaningful impact, regardless of whether other wealthy individuals make donations; after all, a $100,000 contribution goes a long way on its own. So they will still exchange their money for influence, but not always with such an overt theory of change.
The Judicial Crisis Network, for instance, is spending $600,000 on advertising to pressure three vulnerable Democrats — Senators Joe Manchin III of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana — into supporting Kavanaugh. The Judicial Crisis Network does not need to publicly promise that these ads will buy influence, because its strategy does not require convincing thousands of small donors to contribute funds toward the campaign. Of course, it’s very likely that the Judicial Crisis Network made exactly this promise to a small number of rich donors behind closed doors — but that conversation will never be public, making it far less likely that the Network will be punished under anti-bribery laws.
Put another way, a myopic focus on limiting bribery means that the tools best-suited to helping poor and middle-class Americans fundraise — the ones that make the fundraising process public and explicit — are most likely to be attacked as corrupt, while the tools rich Americans use to buy influence will fly under the radar.
(Of course, like any other contribution mechanism, crowdfunding platforms risk being hijacked by the ultra-wealthy. A small number of rich contributors could make thousands of small-dollar donations to a single campaign, creating the false perception of grassroots mobilization. Some combination of donor disclosure and individual contribution limits would go a long way toward addressing this potential concern.)
We need a new campaign finance jurisprudence
If we keep sticking with a bribery framework, then progressives will be forced to make a tough decision. On the one hand, they can try to outlaw all exchanges of money for influence, potentially depriving the left of a critical tool for overcoming collective action barriers in the process. On the other hand, they can leave the door open for crowdfunding campaigns by arguing that donations to politicians’ opponents are not a form of bribery, thereby giving rich donors and interest groups even more flexibility in how they leverage money for power. If neither option feels right, that’s because neither option is right.
Instead, progressives should follow the lead of an increasing number of judicial scholars, who argue that we should create a new campaign finance jurisprudence centered on promoting political equality.
Lee Drutman argued this point in an earlier Vox piece. Drawing on the work of legal scholar Rick Hasen, Drutman called for an “equality of inputs” into our election system. “That’s the basic principle behind our ‘one person, one vote’ laws,” Drutman wrote. “Poll taxes are unconstitutional because they interfere with that principle. We don’t give rich people more votes because they have more money… The principle of equality governs most of our political processes — so why should campaign finance be different?”
It is high time America’s courts recognize that everyone, regardless of their wealth, deserves an equal opportunity to influence policy outcomes. When determining whether a given political expenditure is appropriate, the question should not be, “Is this an example of bribery?” but rather, “Does this approach to campaign finance worsen political equality, or does it move us toward a more equitable system?”
In the case of crowdfunding, the answer would be clear: To the extent that crowdfunding campaigns make it easier for low-income and middle-class people to leverage money for influence, they should be encouraged — not censured.