[EL] McCutcheon

[Scarberry, Mark]

Can we distinguish between two “anti-corruption” interests that could be seen as being addressed by the dissent in McCutcheon?

The first is the interest in keeping lines of communication open between ordinary people and their elected representatives, so as to make representative government responsive to the people *between elections*. High levels of donations cause representatives to listen only (or mostly) to the rich donors, breaking the link between ordinary people and their representatives. The voice of the ordinary person is drowned out by the voice of the rich donor, because the representative will listen only (or mostly) to the voice of the rich donor. With a reference to Rousseau (which one hopes does not incorporate his concept of the “general will”), the dissent treats the breaking of that link as a form of corruption.

The second is the interest in the formation of the views of the people; the formation of those views may be corrupted if too much money is spent by rich people to help form those views or to finance the formation of such views. Here we run dangerously close to the concept of the “general will,” a true will of the people that somehow is different from what they really think, because their thinking has been warped by the spending of so much money by the rich (perhaps creating a “false consciousness”). The spending of huge amounts of money by the rich in furthering their own views drowns out the voices of the ordinary people, as both the rich speaker and the ordinary speaker try to convey their views to the people and to persuade the people.

Is it clear that the dissent only sees the first of those interests as an “anti-corruption” interest that justifies campaign finance regulation? (At first I wasn’t sure, especially given the “drowning out” imagery, but a more careful reading leads me to this conclusion.)

Is it also clear that the first interest has nothing to do with which person is elected, but rather with who the elected person will listen to once elected? Thus it has nothing to do with any desire to level the playing field for the election, right? Instead it has to do with the actions that will be taken by the person once elected, which makes it similar to a concern about quid pro quo corruption.

My apologies if I’m asking the list to reinvent the wheel.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
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