by Michael Dorf
Last Wednesday, on the fifth anniversary of Citizens United v. FEC, about half a dozen protesters briefly disrupted the Supreme Court's proceedings. The next day, Sheldon Silver, the long-time Speaker of the New York State Assembly, was arrested on corruption charges. The timing was coincidental but the events are nonetheless closely related. (Silver is being replaced as Speaker but for now he says he intends to keep his seat.)
Let's start with Citizens United. According to one well-known criticism of the Supreme Court's campaign finance jurisprudence, the Court makes two errors. First, the Court says that the only interest that justifies campaign finance limits is the interest in avoiding corruption or the appearance of corruption, thereby ruling out of bounds the possibility that campaign finance limits might be adopted in the interest of political equality--to ensure that inequalities in the distribution of material resources do not spill over into our politics to undermine the principle of one-person-one-vote. Second, the Court then employs a too-narrow definition of corruption and its appearance, in which only a quid pro quo of the sort that could lead to a bribery conviction counts as corruption.
On the surface, the Silver indictment might be thought to provide partial vindication for the narrow definition of corruption in Citizens United and related cases. After all, the indictment shows that the campaign finance jurisprudence does not protect so much "speech" by wealthy parties seeking to influence the government as to render a corruption prosecution impossible. Put differently, the fact that Silver had to break the law in order to provide political services in exchange for cash seems to show that the law--even after Citizens United--has bite.
But the argument I have just offered won't fly. Silver is not charged with exchanging political favors for campaign contributions. He may well have done that, but if so, at least the Justice Dep't doesn't (currently) think that he did so illegally. The indictment alleges that Silver supplemented his state pay ($121,000 annually as Speaker plus various perks such as a chauffeured car and a per diem) with millions of dollars in bribes that were presented as legal fees for work he never actually did. At least as of Saturday, Jan. 24, Silver was still listed as of counsel with the personal injury law firm of Weitz & Luxenberg, with a "focus" on mesothelioma and asbestos cases, but Silver's firm profile page describes no actual legal work, and the indictment alleges that he did none. It also alleges that he had additional mechanisms for receiving bribes from parties with business in the state legislature.
If the allegations in the indictment are true, then Silver is an old-fashioned corrupt politician--someone who abused his public office in order to make a buck for himself--rather than someone driven to corruption by a political system in which running for office is extremely expensive, so that to succeed, politicians need to grant access and appeal to the interests of persons and firms willing to pay to put or keep them in office. The Sheldon Silvers of the world (again, if the indictment is accurate) would exist even in a world in which the courts upheld much more rigorous campaign finance regulation.
So why do I say that the Silver case is related to campaign finance? Because there is available a tool that would work as a partial solution to both problems: public finance.
Public finance of electoral campaigns--if funded sufficiently generously--substantially reduces the need of candidates to rely on the support of well-heeled donors or the "indirect" "uncoordinated" efforts of "independent" (equally well-heeled) individuals and groups. Unfortunately, public finance is unavailable for most races and where it is available--as in Presidential elections--it has not kept pace with inflation. Since 2008 candidate Obama's decision to forgo federal matching funds in order to escape federal spending limits, the Presidential system is effectively dead.
A similar problem exists on the compensation side. Under-compensated public servants will find it tempting to supplement their income by selling special favors. The very low pay of police officers in New Orleans (and often elsewhere) has historically operated as an invitation to corruption. The same can be true for state legislators. States do not pay their legislators salaries commensurate to their responsibilities. In New York, the annual salary of a member of the Assembly (other than the Speaker) is just under $80,000, even though the New York legislature makes laws governing a state that would have the world's 16th largest economy if it were a country. That is, of course, a more-than-decent middle-class wage. The median household income in New York State is about $60,000, and so the average voter--who does not get a per diem or a chauffeured limo on top of his salary--is unlikely to be sympathetic to the claim that legislators are underpaid. Thus, NY voters tend to oppose a proposal for the first increase in state legislator salaries in over a decade and a half.
Corruption cases like Silver's provide part of the reason why. A typical voter thinks "I get by on less money; I work harder; and on top of it all, these guys are corrupt. No way am I giving them a raise."
I cannot deny the logic to that line of thinking, but it tends to be self-defeating. Higher pay for legislators should not be conceived as a reward for good performance but as a way of reducing the incentives for corruption. That's why Zephyr Teachout's proposal to strictly limit outside income for legislators is not enough; you need to attack the incentive to seek outside income.
As with legislator pay, so with public financing of campaigns. Extremely wealthy self-funding politicians (like former NYC Mayor Mike Bloomberg) sometimes argue that they are incorruptible because they do not need to raise money from wealthy donors and they will not be tempted to use their office for personal gain. These are fair points, but even if some billionaire politicians are entirely public spirited, they necessarily see the world through their own highly privileged eyes. Excluding all but the extremely wealthy from public office is too high a price to pay for combating corruption.
Finally, to be clear, I do not think that public financing of campaigns or paying public officials wages within shouting distance of comparable private sector jobs would cure all political corruption. Some people will be corrupt under any system--and maybe Sheldon Silver is such a person. The best we can do is design rules that reduce the temptations of the greedy and the venal.