by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Just as sex is not the problem with rape, “money in politics,” or “big money in politics,” or whatever you want to call it, is not the underlying question with campaign-finance law. The underlying question is bribery. If you are at all familiar with the history of U.S. campaign-finance regulation and the jurisprudence related to it, this is obvious. If not, here is the short version: Just as rape can be very difficult to prove because it requires a judgment about the psychological question of consent, bribery can be very difficult to prove because it requires a similar assessment of the internal state of the involved actors regarding the question of quid pro quo. If I offer Senator Snout a $100,000 donation to a friendly PAC in exchange for his voting my way on the Let’s Subsidize Small Political Magazines the Way We Do Marco Rubio’s Sugar-Baron Sugar Daddies Act of 2017, and Senator Snout takes me up on my offer, that’s bribery. If, of his own volition, Senator Snout votes my way on my bill, I think to myself, “Snout’s a good fellow,” and make a donation to SnoutPAC, that isn’t bribery. If I wisely judge Senator Snout to be the sort of man who is solid on wildly irresponsible and inappropriate federal subsidies for the producers of small political magazines and send a check his way based on that assumption, that isn’t bribery either. No quid pro quo, no bribery.
You can see the problem here: Quid pro quo is difficult to prove beyond a reasonable doubt.
But that is the relevant standard.
Nobody actually objects to “money in politics.” The New York Times spends a great deal of money trying to influence our political discourse and election outcomes: Professor Krugman does not work for free — no, sir! — and you have higher hopes of hearing him fart the Princeton fight song (“The Princeton Cannon”) in the key of E-flat than of seeing him strain his spinal extensors to bend over and pick up anything less than $10,000. Martin Sheen and Elizabeth Warren’s Wall Street law-firm patrons and the New York Bar Association and EMILY’s List are not opponents of “big money in politics,” not even a little.