Lawful and Corrupt? Political Campaign Finance as Institutional Corruption

Money in politics has become a central part of the debate in the 2020 Democratic Party presidential nomination campaign. Senators such as Warren and Sanders have vowed not accept donations from Super PACs and big interest groups (Rizzo 2019). Why is that? Is it true that campaign finance in the US allows corruption to take place? These are questions which deserve renewed, informed attention. This post will attempt to answer them, exploring academic sources and concepts, highlighting relevant academic developments.

Concerns about campaign finance have peaked after the 2010 landmark decision of the Supreme Court in Citizens United v Federal Election Commission, which determined that independent contributions cannot be restricted, since they represent an expression of the right to free speech (Gerken 2015). Senators Warren and Sanders assert that campaign contributions create a relationship of dependence between the candidates and those who fund their campaigns, to whom they'd owe their election. They also point to an environment of informal relationships in which influence can be bought and distract democratic institutions from their purpose of serving the general interest and public good of the country.

Academia can help us conceptualize their concerns. Dennis F. Thompson has come up with the term "institutional corruption", as opposed to the individual corruption which is perhaps easier to detect and study. Lawrence Lessig, his colleague at the Edmond J. Safra Centre fro Ethics at Harvard University, has added to this, analyzing the issue of dependence.

Dennis F. Thompson dedicated his Ethics in Congress (1995) and Two Concepts of Corruption (2013) to institutional corruption. In the latter, he asserts that individual corruption occurs when an institution or its officials receive a benefit, which does not serve the institution they work for, through relationships external to it under a quid pro quo motive. Institutional corruption, instead, occurs when the benefit is useful to the institution's purpose and provides a service to the benefactor under conditions which ultimately undermine the very purpose of the institution. Campaign contributions, therefore, are useful to democratic elections but may create informal relationships which would ultimately undermine the purpose of delivering a government representative of the electorate's interests and views, working for the general public good of the country, by skewing the representation of the views and interests of contributors.

According to Thompson, institutional corruption differs from individual corruption in three main ways. Firstly, the benefit the official working for an institution receives is political rather than personal, meaning that it is directly useful, if not necessary, for performing one's institutional role. Secondly, the service the official provides is systematic, and it is not confined to a single instance but is part of an ongoing relationship. Thirdly, the relationship between benefit and service has a tendency to disregard, bypass, and ultimately, undermine the processes which allow the institutions to deliver its purpose.

Lessig outlines the issue of campaign finance and how lead to corruption in an even more explicit and perhaps less convoluted way through the concept of dependence (Lessig 2014). In order to run in elections, candidates must keep possible contributors happy, consider their interests carefully and design policy proposals so as not to damage such interests or even facilitate them, More than sixty to seventy percent of candidates elected to Congress, indeed, were those who managed to raise more money for their campaign than their opponent. In order to win, therefore, candidates depend on contributors.

Lessig and Thompson are both very careful and quite clear in stating that even though practices of campaign contributions may be considered as some form of corruption, they are not illegal. Whether it should be is a different matter. Lessig exemplifies how the attention of politicians is nowadays dedicated more to fundraising events and to appeasing contributors than almost ever before. He argues that if representative democracy is to be dependent on people alone, the US is not one (Lessig 2014) . In order to restore such principle, public financing or stricter limits on private contributions should be put in place. Thompson is more nuanced, arguing that the current situation of campaign finance does not always lead to instances of institutional corruption (Lessig 2013).

Given what outlined so far, it would seem that academia provides a solid basis for Warren and Sanders to regard big contributions as conducive to corruption. The concept of institutional corruption has been very successful and has been applied to the study of several private industries and public agencies. It's used to showcase instances of inefficiency, fraud and unfair practices of competition; only the breach of fiduciary duty, however, is an authentic application of the concept (Newhouse 2013).

It's not easy for academia to state clearly whether campaign finance in the US is a form of corruption, whether it be legal or not. As Thompson argues, that is an ultimately normative question, one which only politics can answer legitimately (Thompson 2013). What is certain is that the corrupting potential exists. What Warren and Sanders may be doing is what Newhouse criticized: institutional corruption is being used to describe and explain issues of a much different nature (Newhouse 2013).

In the political debate, words and concepts can lose their meaning and significance if used by different people in many different contexts. The concept of institutional corruption can help justify the claims of Warren and Sanders that the current system of campaign finance is corrupt, but academia cannot outright prove them right. In calling an entire system which is such an essential part of American democracy "corrupt", they may be using the term inaccurately; defining as wrong something that is just inefficient; calling for destruction instead of fixing.

We hope this post has shed some light on the topic for you. As Thompson argues, what we call corrupt and accept or not in our society is a normative question. We hope that you'll engage with it and contribute in reaching a normative, yet informed and thought-through, answer.

#Politics #Congress #Corruption #CampaignFinance

Check out our sources:

• Cain, B. (2019). Is "Dependence Corruption" the Solution to America's Campaign Finance Problems?. California Law Review, [online] 102(1), pp.37-47. Available at: https://www.jstor.org/stable/23784365 [Accessed 16 Dec. 2019].

• CITIZENS UNITED AT WORK: HOW THE LANDMARK DECISION LEGALIZED POLITICAL COERCION IN THE WORKPLACE. (2019). Harvard Law Review, 128(2), pp.669-690.

• Gerken, H. (2015). The Real Problem with "Citizens United": Campaign Finance, Dark Money, and Shadow Parties. Proceedings of the American Philosophical Society, 159(1), pp.pp. 5-16.

• Lessig, L. (2014). What an Originalist Would Understand "Corruption" to Mean. California Law Review, 102(1), pp.1-24.

• McGovern, G. and Greenberg, M. (2014). The Problem Is in the Data: Bringing State Campaign Finance Out of the Shadows. RAND Corporation, [online] pp.1-4. Available at: http://www.jstor.org/stable/10.7249/j.ctt14bs1xp.7. [Accessed 16 Dec. 2019].

• Newhouse, M. (2013). Institutional Corruption: A Fiduciary Theory. SSRN Electronic Journal

• Rizzo, S. (2019). Are Warren and Sanders ‘100% grassroots-funded’?. [online] The Washington Post. Available at: https://www.washingtonpost.com/politics/2019/09/30/are-sanders-warren-grassroots-funded/ [Accessed 16 Dec. 2019].

• Thompson, D. (1995). Ethics in Congress: From Individual to Institutional Corruption. Brookings Institution Press.

• Thompson, D. (2005). Two Concepts of Corruption: Making Campaigns Safe for Democracy Law and Democracy:. George Washington Law Review, Vol.73 (5-6), pp.1036-1069.

• Thompson, D. (2013). Two Concepts of Corruption. SSRN Electronic Journal.

Images:

First Picture: https://www.foxnews.com/opinion/kimberley-strassel-elizabeth-warren-campaign-error from Fox News "Kimberley Strassel: Elizabeth Warren admits to a colossal campaign error. This is what she did next" 22nd November 2019.

Second Picture: https://www.pewresearch.org/fact-tank/2019/01/25/a-productivity-scorecard-for-115th-congress/ Pew Research Centre "A productivity scorecard for the 115th Congress: More laws than before, but not more substance" 22nd January 2019.