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«Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law Nathaniel Persily∗ Kelli Lammie† ∗ University ...»

-- [ Page 1 ] --

University of Pennsylvania Law School

Scholarship at Penn Law

NELLCO Year 2004

Perceptions of Corruption and Campaign

Finance: When Public Opinion

Determines Constitutional Law

Nathaniel Persily∗ Kelli Lammie†

∗ University of Pennslyvania Law School, npersily@law.upenn.edu

† University of Pennsylvania (Annenberg School of Communication)

This paper is posted at NELLCO Legal Scholarship Repository.

http://lsr.nellco.org/upenn wps/30

PERCEPTIONS OF CORRUPTION AND CAMPAIGN

FINANCE: WHEN PUBLIC OPINION DETERMINES

CONSTITUTIONAL LAW

NATHANIEL PERSILY

††

KELLI LAMMIE

This study tests the empirical assumptions about American public opinion found in the Supreme Court’s opinions concerning campaign finance reform. The area of campaign finance is a unique one in First Amendment law because the Court has allowed the mere appearance of a problem (in this case, “corruption”) to justify the curtailment of recognized First Amendment rights of speech and associa- tion. Since Buckley v. Valeo, defendants in campaign finance cases have prof- fered various types of evidence to support the notion that the public perceives a great deal of corruption produced by the campaign finance system. Most recently, in McConnell v. FEC, in which the Court upheld the McCain-Feingold cam- paign finance law, both the Department of Justice and the plaintiffs conducted and submitted into evidence public opinion polls measuring the public’s perception of corruption. This article examines the data presented in that case, but also ex- amines forty years of survey data of public attitudes toward corruption in govern- ment. We argue that trends in public perception of corruption may have little to do with the campaign finance system. The share of the population describing gov- ernment as corrupt went down even as soft money contributions skyrocketed.

Moreover, the survey data suggest that an individual’s perception of corruption derives to some extent from that person’s (1) position in society (race, income, edu- cation level); (2) opinion of the incumbent President and performance of the econ- omy over the previous year; (3) attitudes concerning taxation and “big govern- ment”; and (4) propensity to trust other people, in general. Although we conclude † Assistant Professor of Law and Political Science, University of Pennsylvania Law School. Thanks are due to Jennifer Rosenberg and Karen Zakrzewski for their helpful research. As always, we owe a great debt to librarian Bill Draper for his assistance, and to Rosanna Taormina, Devanshu Patel, Ethan Schultz, Ellen London, and all the other Penn Law Review editors who navigated this difficult article through to publication.

For helpful comments we thank Robert Ahdieh, Bruce Cain, Jack Citrin, Michael Dorff, John Ferejohn, Elizabeth Garrett, David Golove, Anne Joseph, James Kushner, Goodwin Liu, Daniel Lowenstein, Bill Marshall, Diana Mutz, Spencer Overton, Richard Pildes, David Primo, Richard Primus, Frederick Schauer, David Schultz, Michael Wachter, John Yoo, and all the participants in the Penn Law Review Symposium on The Law of Democracy and the faculty workshops at Boalt Hall, NYU, University of Pennsylvania, Seton Hall, and Southwestern Law Schools.

†† Graduate Student, Annenberg School of Communication, University of Pennsylvania.

–  –  –

that, indeed, a large majority of Americans believe that the campaign finance system contributes to corruption in government, the data do not suggest that campaign finance reform will have an effect on these attitudes.

When government lawyers make arguments seeking to justify a state’s infringement of a constitutional right, they tend not to say something like “most people think a problem exists, so the state has a compelling interest in allaying their fears.” Yet in the context of campaign finance, government lawyers not only make such an argument, but such reasoning and evidence have become almost mandatory as 1 courts have struggled to follow the line of cases from Buckley v. Valeo 2 to McConnell v. FEC. Among the unique exceptions to general First Amendment law made in the context of campaign finance regulation, those cases have established that the mere appearance of a problem (in this case, “corruption”) is sufficient to justify infringements on recognized First Amendment rights (in this case, the rights of association and expression). Most recently, to support this argument, lawyers have offered and judges have accepted public opinion polls demonstrating that Americans perceive a great deal of corruption arising from large contributions to candidates and political parties or from certain types of expenditures on behalf of those parties and candidates. To date, very little has been written on public perception of corruption in general, or on the data that link such perceptions to 3 problems in the campaign finance system. This Article attempts to do both.

We begin in Part I by briefly sketching the evolution of the appearance-of-corruption rationale for campaign finance regulation.

1 424 U.S. 1 (1976) (per curiam).

2 540 U.S. 93, 124 S. Ct. 619 (2003).





3 The one exception is the work of David Primo. See generally Jeffrey Milyo, David Primo & Timothy Groseclose, Corporate PAC Campaign Contributions in Perspective, 2 BUS.

& POL. 75 (2000) (discussing the disproportionate amount of attention paid to corporate PAC campaign contributions relative to their importance in policy-making process); David M. Primo, Campaign Contributions, the Appearance of Corruption, and Trust in Government, in INSIDE THE CAMPAIGN FINANCE BATTLE: COURT TESTIMONY ON THE NEW REFORMS 285 (Anthony Corrado et al. eds., 2003) (rebutting claims that there are links among campaign finance law, the appearance of corruption, and trust in government);

David M. Primo, Public Opinion and Campaign Finance, in THE ENCYCLOPEDIA OF PUBLIC OPINION (forthcoming 2004) (illustrating that campaign finance reform is not a policy priority for most Americans, that the public generally favors reform, and that most Americans believe that reforms will not change politics significantly); David M. Primo, Public Opinion and Campaign Finance: Reformers Versus Reality, 7 INDEP. REV. 207 (2002) (reviewing public opinion data which illustrates that while the public generally favors campaign finance reform, it does not consider it a priority, and that trust in government is not linked to campaign spending).

2004] 121

PERCEPTIONS OF CORRUPTION

We argue that the Court’s invocation of this novel state interest has less to do with the importance of removing unsavory appearances and more to do with the difficulty of proving actual corruption. Reliance on combating the appearance or perception of impropriety serves as a fallback state interest in the likely event that one cannot make the difficult showing that campaign contributions have actually influenced a representative’s vote or official conduct.

In Part II we present data used in McConnell v. FEC to make the strongest argument in favor of the notion that the public perceives a great deal of corruption arising from campaign contributions. Although we are critical of the way public opinion polls have been deployed in that case, among others, we admit the obvious: the American public believes that contributors exert undue influence over the decisions of members of Congress. We should even concede up front that we too believe that representatives have been influenced by campaign contributions: money buys access and in some cases, may buy votes.

In Part III, we present data not previously employed in campaign finance litigation. We suggest that the share of the population viewing government as corrupt rises and falls with the popularity of the incumbent President: declining during successful wars and periods of economic growth and surging during periods of recession and malaise. We also splice the public opinion data according to several different demographic and political variables to get a sense of which subsections of the American population are more likely to perceive corruption and why. Our analysis reveals that, to a limited extent, those with lower socioeconomic status are more likely to perceive corruption. More significantly, general antigovernment feelings, specific anti-incumbent attitudes, and opinion as to the performance of the economy also seem to correlate strongly with feelings about corruption in government. Finally, for some individuals, belief that government is corrupt is a natural outgrowth of their psychological predisposition to mistrust people in general. Cynics believe people are selfish and corrupt, so it should come as no surprise that they consider government corrupt as well.

In Part IV we present our conclusions. As we note there, this Article has a little something for everyone in the campaign finance debate. For defenders of recent reforms, we validate their gut reaction that the public sees large campaign contributions as unduly influencing the official behavior of members of Congress. Indeed, such perceptions of corruption extend not only to givers of the large conVol. 153: 119

UNIVERSITY OF PENNSYLVANIA LAW REVIEW

tributions banned by the Bipartisan Campaign Reform Act (BCRA) 4 and earlier reforms but also to contributions made within the law’s limits. It seems a fair inference to us that Americans perceive campaign contributions of almost any size as leading to undue influence of the contributor over the recipient. Opponents of the reforms might find solace in the latter finding and in the finding that trends in general attitudes of corruption seem unrelated to anything happening in the campaign finance system (e.g., a rise in contributions or the introduction of a particular reform). For those less interested in campaign finance, we analyze survey data concerning public perceptions of government corruption more generally. We try to explain which subsets of the population perceive the government as crooked or unduly influenced, as well as how and why such perceptions have changed over time. In the end, we discourage the use of any such data in litigation: if courts continue to hold that campaign finance is one of those areas of the law where, in effect, “appearances do matter,” we hope judges will not base their decisions on a headcount of the American people.

We present in this article an ambitious argument with limited goals. It is ambitious given the scope and time frame of the data we analyze and the case law we canvass. However, our goals are limited in that we are working within the current framework of campaign finance law to suggest that one type of evidence, namely public opinion polls, should not be used to support arguments as to the state’s interest in combating the appearance of corruption. We should admit two drawbacks to our approach. First, by operating within the current framework, we fall into the same trap that has snared the current

Court and those who have analyzed the campaign finance decisions:

namely, the alternating tendencies of the word “corruption” to mean everything and nothing. For purposes of this article we accept the prevailing notion in the case law that corruption, in this context, refers to “undue influence on an officeholder’s judgment” as manifested in “the broader threat from politicians too compliant with the

–  –  –

7 wishes of large contributors.” While buying into this definition of corruption, we do not mean either to advocate for it or to suggest that corruption should continue to eclipse other potential state interests that could justify campaign finance regulation. Simply put, we recognize that the concept of corruption can mean more and less than the Supreme Court has said it does, and we recognize that other state interests, such as leveling the electoral playing field or allowing officeholders to concentrate on their jobs instead of fundraising, may provide better justifications for campaign finance reform.

Second, we also acknowledge the limits of the data and the methodology we use to test our various hypotheses. Although we believe that public perception of corruption has almost nothing to do with activity actually taking place in the campaign finance system, and we are convinced that campaign finance reform will have no effect on public perception of corruption, we cannot prove either argument. We admit that the available long-term survey data, which measures perceptions of “crookedness” and whether “government is run by a few big interests,” do not precisely answer the more relevant constitutional questions concerning the perception of corruption arising from large campaign contributions. Moreover, insofar as the long-term survey data or the sporadic campaign finance-specific polls we analyze suggest an answer to those more relevant questions, we acknowledge that the inability of the campaign finance system to affect such perceptions might be a product of the constraints placed by the jurisprudence itself or by what has heretofore remained politically possible. In other words, we cannot dispel the good-government notion that campaign finance reform would have an effect on such attitudes if only the state were able to begin clamping down on campaign expenditures (a path the case law now closes off) or if the state were able to enact a generous public funding system that might make other contributions less relevant (a path closed off by political realities).

Finally, at several times we note the irony that the share of the population perceiving corruption declined even as soft money skyrocketed and that the share increased after passage of the soft money ban. Although we find that perverse outcome to be quite important, we cannot eliminate the possibilities that fewer people would have viewed government as corrupt had soft money always been banned, or that even more people today might view government as corrupt had

–  –  –

Congress not banned soft money. In the end, we hope that this empirical claim, like the others in this article, serves to undercut what we consider to be the prevailing wisdom in the jurisprudence, even if we cannot disprove all alternative theories that might link campaign finance activity with individual or aggregate perceptions of corruption.



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