Donors: Give-ok; Get-not

• Publication year: 2022

53 Creighton L. Rev. 485. DONORS: GIVE-OK; GET-NOT

DONORS: GIVE-OK; GET-NOT

AMITAI ETZIONI ^[D1]

This Article takes for granted that the great amount of campaign contributions donated to individuals who are seeking election or reelection to Congress has reached a level that seriously undermines the democratic system. Many suggestions have been made on ways to limit the contributions donors can give. This Article, taking into account that the United States Supreme Court holds these limitations tend to offend the freedom of speech (roughly summed up in the phrase "money is speech"), asks whether one could limit what the donors can get for their contributions. The "money is speech" concept derived from the Supreme Court's ruling in Buckley v. Valeo, ^[1] which struck down independent expenditure limits as a violation of the First Amendment. ^[2] However, it was never stated quite that explicitly. The Court reasoned that "[t]he expenditure limitations . . . represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech." ^[3]

Many donors would no longer be motivated to make campaign contributions if they were unable to gain substantial material benefits not granted to others with the same attributes. In effect, this Article suggests that if and when contributors get benefits in exchange for their contributions, they violated the law by giving a bribe. The issues that arise in proving there was a quid pro quo, as the law requires, are discussed below.

At the same time, those who make contributions because they support the normative, philosophical, or ideological positions of the elected officials, or seek to promote the common good-and hence do not seek nor gain any substantial material benefits for themselves in return-would continue to be free to make contributions.

This Article first briefly outlines the main position. (section I). This Article next examines various secondary considerations raised by the main position. (section II). It then briefly reviews major reforms suggested on limiting giving and the main reasons the Court declared them unconstitutional. (section III). The following section indicates why disclosure and other forms of transparency are woefully insufficient. (section IV). This Article closes with a discussion of the current legal definition of quid pro quo and how it must be modified in order to implement the reform here outlined. (section V). This Article only deals with members of Congress and the campaign contributions they receive.

I. DISCRIMINATORY BENEFITS

To curb the corrupting effects of campaign contributions, either Congress should enact a law or the courts should interpret existing law to treat as a bribe those campaign contributions in which substantial material benefits are granted to the contributors but not to others under comparable circumstances. Congress should enact a law similar to 18 U.S.C. §201, ^[4] providing that, anyone who "directly or indirectly gives, offers or promises anything of value to any" member of Congress or a person seeking to be elected as a member of Congress "for or because of any official act performed or to be performed" by such person, who in return modifies congressional acts to provide a special substantial benefit to the contributor himself/herself or a corporation, will be charged with having offered a bribe. ^[5]

The penalty for such a violation of the law ought to be the same as for bribes offered to public officials in the other two branches of government.

The benefits under discussion may include appropriation of public funds; ^[6] tax reductions; ^[7] granting credit at favorable terms; ^[8] exclusive rights to provide a service or product; ^[9] according exclusive access to valuable resources; ^[10] or otherwise ensuring substantial material benefit to some while not making these same benefits available to others with the same attributes.

The qualification, "substantial," in regards to campaign contributions serves to prevent overly zealous prosecutors from going after people receiving minor benefits to avoid criminalizing contributions made in exchange for supportive speech. Take, for example, members of Congress seeking to prove their hometown credentials, express pride, or unite their constituencies by praising the performance of local sports teams. However, if the supportive speech leads to considerable material gains-for instance, the elected official praises a product of the contributor-within a defined period before or after the donation was made, and the speech results in substantial sales increases, it would be considered a bribe. ^[11]

All benefits ^[12] should be banned preceding or following contributions for two years for members of the House and three years for members of the Senate. One may wonder how members of Congress are to know whether they will be rewarded with contributions upon granting a benefit to a given person or corporation; they may well not. Nevertheless, these limits are necessary to prevent contributors from promising elected officials contributions after enactment of special favors. The onus is on the contributor, not on the member of Congress.

Some contributors argue that they give because they share the philosophical positions of the candidates. However, this defense should not stand if contributors do not donate to other political candidates with similar views, but only to those who reciprocate with special benefits. This argument is particularly indefensible when benefits follow contributions to elected officials with opposing philosophies; this nonpartisan opportunism is not uncommon. As Donald Trump revealed: "I give to everybody. When they call, I give. And you know what, when I need something from them two years later, three years later, I call them. They are there for me." ^[13]

To further illustrate, the drug industry provided Senator Orrin Hatch and Representatives Marsha Blackburn and Tom Marino with $177,000, $120,000, and almost $100,000 respectively, between 2013 and June 2017, as they shepherded the misleadingly named Ensuring Patient Access and Effective Drug Enforcement Act of 2016 ("EPAEDEA" or "the Act") ^[14] into law. ^[15] Collectively, the Act's twenty- three sponsors and cosponsors received no less than $1.5 million in drug industry donations. ^[16] An investigative report explained that once the Act passed, it changed long-standing Drug Enforcement Administration ("DEA") practices. ^[17] Prior to the Act, "the DEA could freeze drug shipments that posed an 'imminent danger' to the community, giving the agency broad authority. Now, the DEA must demonstrate that a company's actions represent 'a substantial likelihood of an immediate threat,' a much higher bar." ^[18] After being worn down by years of trying to put a stop to this legislation and undergoing internal personnel changes, the DEA backed down. ^[19] The investigative report found that many lawmakers outside the group of sponsors and cosponsors did not realize that the law would hamstring the DEA's efforts. ^[20] As a result, Congress passed the law with parliamentary unanimous consent procedures and President Barack Obama signed it into law in April of 2016, in the midst of the opioid epidemic. Two of the leading proponents of the new law, Rep. Tom Marino and then-Rep. Marsha Blackburn, hailed from districts that were suffering from the opioid crisis. If they were truly committed to their constituents' interests, it seems unlikely that they would be eager to champion legislation that prevents the DEA from carrying out its duties, allowing the drug industry to continue to push opioids to communities that are under siege from this epidemic. ^[21]

How is one to determine that the benefits granted by elected officials, which followed or preceded contributions within the defined period, are preferential to the contributor? Part of the answer is found in the defining attributes of an elected official's actions, such as the particulars of the legislation they shepherd. If the specifics of the official's act, such as the language of the legislation, is not impartial to the relevant constituency receiving the benefits (say, targeting all senior citizens, truckers, or importers), but focuses only on the group related to the contributor (say only importers in a particular industry affiliated with the donor), a bribe may be suspected.

Sometimes congressional members define various benefits in seemingly impartial terms, but, on closer examination, there are few who actually qualify for the benefits, i.e., the language of the law appears neutral while, in reality, it precisely targets only contributors for benefits. For example, a law providing funds for an event to take place in any city with a population of at least eight million people does not explicitly single out a particular city; however, only New York City met this criterion in 2016. ^[22] The test lies in determining the relevance of the particulars of the legislation. In the example, if a less populous city could not accommodate the event, then no bribe may be suspected. Alternatively, if a less populous city would be able to hold the event, the population requirement in the allocation of funds is questionable. One may argue that sorting out various particularities of legislation and other official actions to determine whether specific benefits are related to specific contributions in...