I yield to very few people in my concern about money-in-politics, having worked for Common Cause from 1991-93 and consistently studied the issue since then. Yesterday’s McCutcheon decision, although generally anticipated by experts on campaign finance law, is deeply discreditable.

Chief Justice Roberts asserts that since Buckley v Valeo, “This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption. … No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equaliz[e] the financial resources of candidates.’

I do not completely disagree with this. I’d argue that it is constitutional to regulate campaign contributions to further democratic-process objectives, such as making political campaigns relatively more competitive or to reduce the disproportionate impact of big donors. But the most effective way to “level the playing field” among candidates or among citizens is not to rely on limits; it is to subsidize campaigns. Regulatory limits are cheap and popular, hence much easier to pass than subsidies, but they are not especially effective. And they do raise genuine First Amendment concerns. Congress could set limits so high as to be irrelevant, but it could also intentionally set the limits so low as to prevent challengers from getting their messages out. Incumbents actually have an interest in low campaign spending, and that is a reason to be somewhat skeptical about spending limits as a tool for changing the balance of power in elections.

However, in Arizona Free Enterprise Club v. Bennett (2011), the Supreme Court also struck down public subsidies for candidates who agreed to limit their spending. The Arizona case left as the only permissible remedy a system of public financing that coexists with unlimited private money.

Roberts concedes that regulation is constitutional to prevent corruption or the appearance of corruption. But in yesterday’s decision, he defines “corruption” very narrowly:

Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—“quid pro quo” corruption. … Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. … And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access. … The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights.

There is no doubt that people and organizations that make large campaign contributions are doing so to obtain influence. That is the case even when their spending is basically defensive–when they are hoping to avoid trouble rather than purchase benefits. Today’s New York Times quotes a lobbyist who says, “We hate [the McCutcheon decision.] We were joking around with the partners today: Guess my kids are going to community college. There is going to be no end in sight. Campaigns now will take as much as you will give.” If these lobbyists feel they must give money to avoid falling into the bad graces of politicians, that is quid pro quo corruption. It is simply not provable as such in a court, because there is no explicit deal of money for a vote. Donors are not trying to “control the exercise of an officeholder’s official duties” but increasing the odds of favorable treatment. If you think their payments are “free speech,” you have a debased sense of freedom, reason, and citizenship.

The word “corruption” must be given a much broader definition than explicit bribery. We must be able to determine that our system is corrupt in the sense of violating its own high principles, and we must be able to address that problem through legislation. A Supreme Court that blocks such remedies is itself corrupt, in the fundamental sense of the word.

As I write in We Are The Ones We Have Been Waiting For,

The Citizens United decision was the logical conclusion of a half century of retreat from notions of the public good. … This decision capped a century-long process in which special interests became “civil society,” Madison’s factions became “constituencies” or “stakeholders,” propaganda became “public relations” and “communications,” corporate pressure became “government relations,” and lobbying morphed from a disreputable matter of hanging around hotel lobbies and button-holing politicians into a white-collar profession.

I should not have written that Citizens United was “the logical conclusion” of our slide into corruption. McCutcheon is that. Americans should be angry and ashamed.