The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Buckley and the Appearance of Corruption Standard," by David M. Primo
"What social science can tell us."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by David M. Primo, Ani and Mark Gabrellian Professor at the University of Rochester and the co-author of Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters (and an expert witness in numerous campaign finance cases):
In ruling campaign spending limits to be unconstitutional, the Buckley decision handed down by the U.S. Supreme Court in 1976 reshaped election law, affirming that First Amendment protections extended to the speech of political candidates. It also made clear that campaign contributions were protected by the First Amendment and that such restrictions could only be justified to prevent corruption or the "appearance of corruption." I am grateful to the Court for its defense of the First Amendment. Still, I have felt compelled throughout my career to ask: do contribution limits actually achieve these goals?
If you ask Americans, as I have, whether the campaign finance system is corrupt, around 80% say yes. Meanwhile, courts since Buckley have largely agreed that most contribution limits—except really tiny ones—are self-evidently helpful for reducing corruption and the appearance of corruption, thereby ensuring "that confidence in the system of representative Government is not to be eroded to a disastrous extent." Reformers have beaten the "restore trust in government" drum to justify campaign finance laws ever since.
As a social scientist, I think evidence matters. Just because the public or the courts say something is true doesn't make it so. Fortunately, 50 years on from Buckley, we have reams of data on attitudes toward government, and we can use that data to better understand the relationship between the appearance of corruption and contribution limits.
For our 2020 book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, Jeff Milyo (who has written a thought-provoking essay for this series) and I built a dataset of nearly 60,000 survey respondents over a 30-year period from 1987 to 2017. These individuals answered questions about trust and confidence in government, and we know a lot of other things about them: their ideology, party affiliation, age, education, and so on. Meanwhile, states vary in whether they have contribution limits and when they implemented them, making them what political scientists are fond of calling "laboratories of democracy."
Putting this individual-level and state-level data together allows us to move from the world of hypotheticals to understanding the real-world impact of campaign finance laws. If contribution limits meaningfully reduce the appearance of corruption, that effect should show up in higher levels of trust and confidence in state government among citizens living in states with stricter laws. As the quotation above shows, maintaining confidence in government was a primary motivator of the Court in upholding contribution limits.
By matching public opinion data with features of the states, we were able to isolate the impact of a state's campaign finance laws using regression analysis to hold constant features of individuals and states that may influence attitudes toward state government. In doing so, we found that a state's campaign finance laws had no meaningful impact on attitudes toward government. In the book, we don't mince words about what we believe this result establishes: "This is perhaps the most important finding in the book, which in practical terms calls into question four decades of legal justifications for campaign finance reform."
How could the courts and reformers get it so wrong? One could argue that the problem lies in imperfect laws or weak enforcement, but decades of variation across the states suggest something more fundamental is at work: attitudes toward money in politics are better understood as a symptom, not a cause, of Americans' overall distaste for American politics.
In one of the surveys we conducted for the book, we found that nearly two-thirds of Americans believe that taking a policy position not supported by the voters in order to make the other party look bad was likely to be corrupt behavior. About the same proportion thought seeking favorable media coverage by taking a position at odds with voters was also evidence of corruption. If Americans believe this is corruption, is it any wonder that campaign finance reform has failed to move the needle on trust?
Surely, though, the much-maligned Supreme Court decision Citizens United must have sent trust in government plummeting. We checked. It didn't. Trends in trust before and after what one critic called "the worst Supreme Court decision since the Dred Scott case" look nearly identical.
So what do we do about the lack of confidence in government? This is the part where the social scientist is supposed to conjure a deus ex machina. We can fix confidence in government with redistricting reform! Term limits! Ethics reform! There is no neat ending to this story, though. If anyone tells you that they know how to fix American government, what they usually mean is that they (think) they know what reforms will implement their preferred policy outcomes.
On this fiftieth anniversary of Buckley, then, perhaps it is time to consider whether blind obeisance to the court's appearance of corruption standard has served democracy and the First Amendment well.
