Panel Discussion: “What is corruption in a political context?”

Roger Borgelt, Kurt Hildebrand, Sanford Levinson, Mike Ignatowski, Jan Soifer,

From left: Roger Borgelt, Kurt Hildebrand, Sanford Levinson, Mike Ignatowski, Jan Soifer, James Dickey, Joanne Richards

One of CG4TX’s regular monthly meetings, this panel discussion took place on 2 May 2015 at Austin’s Yarborough Public Library.

Moderator: Mike Ignatowski

Panel:

Sanford Levinson- Professor, University of Texas School of Law, and Professor of Government
Roger Borgelt- Austin lawyer specializing in campaign finance and election law
Kurt Hildebrand- Chair, Texas Libertarian Party
Jan Soifer- Chair, Travis County Democratic Party
James Dickey- Chair, Travis County Republican Party

Sanford Levinson began by providing historical background, emphasizing that from the founding of our nation there has never been agreement on what counts as political corruption. Early on there was a tension between interpretations of the First Amendment and the republican form of government clause. Since the founding of our nation, views on public corruption have evolved from James Madison’s belief, expressed in Federalist 10, that corruption arose from “politics of faction” and political leaders who put private interests above the public interest, to the 19th century reformers who focused on curtailing the political “spoils system.” He explained that concern over campaign funding as the cause of political corruption is largely a 20th-century idea.

Congress passed various campaign finance laws, restricting contributions and spending, out of concern over corporations and wealthy individuals having too much influence over government by virtue of the money they can spend on elections.

Professor Levinson identified Buckley v. Valeo (1976) as a watershed Supreme Court decision in the area of campaign finance law because it ruled that “money is speech” protected under the First Amendment, and that restrictions on political spending are therefore unconstitutional. He said it was a contender for the worst Supreme Court decision of the 20th century. This interpretation of money as speech, and subsequent decisions that limit political corruption to “quid pro quo” bribery, overlooks several problems:

  1. Fundraising for modern elections is a corrupting influence simply because elected officials must spend so much of their time raising money for the next election when they should be performing their public duties (governing/legislating).
  2. Unrestricted spending amplifies class differences in elections, favoring privileged “millionaires” who can either fund their own elections or spend huge amounts of money on favored candidates.
  3. Eliminating spending limits and weakening regulations on contributions gives wealthy individuals a disproportionate influence on election results.

He compared the view that only “quid pro quo” bribery counts as corruption to a narrow view of sexual harassment which ignores the factor of a “hostile environment.”

He also characterized Williams-Yulee v. The Florida Bar, which prohibits judges from soliciting campaign contributions directly but allows them to ask their friends to solicit contributions on their behalf, as a “silly” decision in which the swing vote, John Roberts, refused to think of judges as politicians.

The panel members then gave summaries of their views on political corruption:

Roger Borgelt (R) pointed out that current election laws go much further than simply addressing “quid pro quo” corruption and that these laws often interfere with legitimate freedom of association by restricting people’s ability to band together to raise money for candidates. He also said that there is no way to effectively regulate money in politics because there will always be ways to circumvent laws and regulations on raising and spending money. He favors transparency and disclosure of political spending as the only effective limit on corruption.

Kurt Hildebrand (L) explained that as a Libertarian, he supports his party’s principle of “non-aggression” as the best way to protect individual rights. He defined political corruption as “dishonest and fraudulent conduct” and identified institutionalized corruption as causing a hostile environment for third parties who try to provide voters with more choice in elections.

Jan Soifer (D) emphasized that a functioning representative government requires an electorate that believes their vote matters in elections. She said that low participation of voters in campaigns and elections is troubling and indicates a pervasive lack of confidence in the electoral process. She agreed that corruption is a much broader problem than bribery, which is already illegal, and that historically political corruption is a self-serving use of public position for private purposes. She endorsed the view expressed by Zephyr Teachout that corruption is the abuse of the public trust.

James Dickey (R) said that the founders emphasized both the need for highly ethical behavior from elected and appointed officials and a system that inherently minimized opportunities for corruption. He thinks the best way to limit corruption is to reduce the money available to government. He pointed out that some level of money is necessary to compete in elections but having more is not sufficient to win and therefore he opposed limiting political donations or spending. He also said that current campaign finance laws are not fair because it allows a wealthy individual to “self-fund” his own campaign but not anyone else’s campaign.

Questions for Panel: Are there basic structural aspects of our political system that allow corruption? Are large expenditures for lobbying by corporations a corrupting influence? What about the revolving-door practice of public officials “cashing out” after they leave office? Can we sever the connection between money in elections and political influence?

Summaries of the panelists’ responses:

Roger Borgelt – The biggest problem is a large administrative bureaucracy whch is allowed to make “big” decisions without public input, and is unaccountable to the public. He does not favor any limits on donations or spending because they are ineffective and often backfire. Although he supports more transparency and disclosure, he is concerned about finding the right balance between individual privacy and the public’s right to know. More disclosure of campaign donations/spending and lobbying would help prevent corrupt acts by officials because voters could show their disapproval in the next election.

Kurt Hildebrand – He agrees that a large administrative bureaucracy provides too many opportunities for corruption but added concerns over institutionalized corruption, which he defined as including practices of partisan gerrymandering, barriers to third party candidates, unopposed candidates, and the erosion of traditional checks and balances in government and elections. He believes that low voter turnout is evidence that voters are dissatisfied with their choices. Disclosure and transparency are also necessary to prevent abuses; meetings between lobbyists and officials should be made public. The Constitution protects privacy but does not guarantee anonymity in political activity.

Jan Soifer – SCOTUS decisions holding that “money equals speech” protected by the First Amendment overturned existing campaign finance laws and prevented passage of new, stronger laws, including public financing of elections, to address the corrupting influence of money on the political process. She wants voters to be aware that their vote for President is important because it impacts who will be appointed to the Supreme Court and potentially future decisions on campaign finance. Weak disclosure laws and large amounts of money spent on lobbying add to the corruption and lack of accountability to voters.

James Dickey – He agrees that the large administrative state is the main structural problem, and that the solution is to reduce the size of government so corruption has fewer opportunities to divert public resources to private interests. He disagrees that the two-party system is part of the problem, and he supports individuals’ right to keep the causes they support private. He also believes that individuals should not lose their free speech rights just because they choose to organize as a corporation, and that the right of association in political activities cannot be limited without potentially severe unintended consequences.

Sanford Levinson – He believes that there is no way to reduce the size of the “administrative” state or even to reduce the amount of money in politics. With regard to “dark money” spent by anonymous donors, he said that while the source of the money may not be disclosed to the public, the candidates will always know where the money comes from. He also identified a broken electoral system, and lobbying between elections, as significant structural problems in our current system, but he acknowledged that spending money to lobby government has a strong constitutional claim as protected speech. He suggested that a “random selection” of legislators (similar to jury selection) would be more representative of the people than the current system. He also holds that the Electoral College should be eliminated.

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