The wild mid-west: Missouri ethics and campaign finance under a narrowed corruption regime.

Author:Schnurbusch, Dan
Position:LAW SUMMARY
 
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  1. INTRODUCTION

    Missouri is home to some of the weakest ethics and campaign finance laws in the nation. (1) In Missouri, there are no limits to monetary donations made directly to political hopefuls, no parameters on the size or type of "gifts" given to legislators by lobbyists, and no restriction on the ability of the legislators themselves to become lobbyists immediately after leaving office. (2) This sort of financial freedom can result in the literal purchasing of access and influence in the legislative arena, but it can similarly exert other types of pressure on the governor as state executive, and even over the judiciary, despite Missouri's modified method of appointing some of its judges. Put differently, the effects of money on the creation and application of the law pervade all three branches of our ostensibly republican form of government, and Missouri's ethical and campaign finance laws are ill equipped to protect against even the most basic form of corruption--that which the Supreme Court of the United States has identified as "quidpro quo corruption." (3)

    Exacerbating these concerns are the recent Supreme Court of the United States' decisions of Citizens United (4) and McCutcheon (5) that have unshackled independent special interest spending. At the same time, these decisions have bound the hands of state legislators around the country, leaving lawmakers unable to promulgate legislation to provide continuity and consistency between the rich and the poor and between individuals and corporations in both their ability to access our elected representatives and in their ability to see their interests protected under the law.

    This Note explores some of the history of Missouri's attempts at ethics reform, recent developments in Missouri's ethics legislation and federal First Amendment jurisprudence, and how these issues commingle to produce a dangerous climate in which to operate a representative democracy. This Note confronts some of the Supreme Court's conclusions in both Citizens United and McCutcheon, exposes some of the deleterious societal and legal effects of these rulings, and provides some possible courses of action that Missouri and other states might undertake in order to help lay the groundwork for upholding meaningful campaign finance regulation in the future.

  2. LEGAL BACKGROUND

    Ethical rules for Missouri courts and legislators are intimately intertwined with the laws of campaign finance. After all, the ability to give freely to campaigns for public office loses some of its value if the recipients of those monetary donations are legally proscribed from accepting them. To address these twin concepts, Part II of this Note explores the recent historical background in Missouri ethics and campaign finance law. As scrutinized in greater detail in Part IV below, the ability to spend and receive large sums of money can have significant effects on the political process both in the creation and application of the law.

    The ebb and flow of Missouri's commitment to ethics reform has been a pervasive element throughout the recent history of Missouri government. At times, Missouri citizens and legislators alike have expressed unwavering commitment to improving our representative democracy by ridding it of corruption or particularized adherence to special interest groups. At other times, different ways of thinking, different interests, and different people in power have worked to retain the status quo and, in some cases, to roll back former efforts at reform. Today, it seems as though Missouri is posturing for a return to a more reformist mentality. But looking back, modern trends at weeding out corruption and in promoting legitimacy in representative government began a little over twenty years ago.

    Missouri's first foray into formalized ethical reform occurred in 1991 with the establishment of the Missouri Ethics Commission ("Ethics Commission"). (6) The duties of the Ethics Commission were to observe and identify ethical red flags relevant to Missouri lawmakers and to propose suggestions to remedy them, and additionally to investigate ethics complaints, record and file campaign finance disclosure laws, and more. (7) Met with little opposition, the establishment of the Ethics Commission served as a signal of Missouri's commitment to reform. Later, in 1992, Missouri voters amended the state constitution to impose Missouri's first term limits on the members of both houses of the legislature, which led to a wide-scale turnover in house and senate seats by 2002. (8) In 1994, Missouri passed, by a landslide, a massive campaign finance reform bill--SB 650--and a ballot initiative--Proposition A--limiting campaign donations by committees, individuals, and political parties to a meager $ 100-$ 1000. (9) The bills together further barred fundraising during session, required donor disclosure, and even constrained the quantity of money their committees and the candidates themselves could spend on their own campaigns. (10) Proposition A enacted stricter contribution limits than the statute passed by the legislature, but when the Eighth Circuit declared Proposition A's donation limits unconstitutional under the First Amendment in 1995, the dormant statute once again took effect. (11)

    Over the subsequent years, courts would invalidate many components of both the bill and ballot initiative. (12) Nonetheless, these bills were the indicia of a broader trend toward legitimizing the political system in Missouri during that time period. As more time passed, the Missouri legislature continued to identify ethical shortcomings, and in 1997, the aforementioned 1994 law was amended to include new rules regarding the definition and regulation of lobbyists, to address a variety of conflicts of interest, and to add a host of new financial reporting and disclosure requirements. (13)

    But, as history has shown us, sometimes change can occur too hastily for some, and so the year 2006 marked the beginning of Missouri's return to the "Wild West" (14) when Governor Matt Blunt signed into law a bill that eliminated all limits on direct campaign contributions to candidates for political office. (15) Missouri legislators had been systemically engaging in questionable financial practices, such as the trading of funds between committees and other financial tricks, in order to get otherwise impermissible donations to the intended candidates. (16) As a result, some of the ostensibly more conscientious elected officials sought not to eliminate these unsavory practices, but to bring this unscrupulous conduct to the fore by simply permitting these monetary transmissions that may regardless occur, while at once subjecting them to enhanced disclosure requirements. (17)

    However, less than six months later, the Supreme Court of Missouri upheld a trial court ruling invalidating a portion of the bill as unconstitutional under the First Amendment of the U.S. Constitution. (18) Because the offending provisions were not severable from the remainder of the bill, it was deemed wholly invalid and the court's ruling thereby reinstated the preexisting caps on campaign donations. (19) Successfully remedying the invalidity of the 2006 bill, Governor Matt Blunt and the Missouri legislature tried again in 2008 by passing a modified bill purporting to once again remove caps on direct and indirect campaign contributions, (20) and no bills have passed since that time limiting campaign contributions. (21)

  3. RECENT DEVELOPMENTS

    Many years have passed since Missouri's first attempts at formalized ethical reform, but the battle wages ever on between the First Amendment in electioneering behavior and the ideals of a regulated, transparent, and representative democracy. Part III of this Note touches on the manner in which sweeping decisions from our nation's highest court have impacted Missouri elections and legislative freedom and what, if anything, has been done in Missouri in light of these novel developments.

    1. Citizens United, McCutcheon, and the Explosion of Non-Candidate Spending

      Written about at length, the federal cases of Citizens United v. FEC and McCutcheon v. FEC have magnified and transformed the methods of getting elected for most state and federal publicly elected officials. Where Citizens United declared legislative attempts to rein in corporate independent electioneering expenditures to be unconstitutional, (22) McCutcheon held that statutory caps on aggregate amounts a donor may spend across all political candidates violated the First Amendment. (23) Together, these two decisions of the Supreme Court of the United States have had a dramatic impact on independent electioneering expenditures and campaign spending more generally. (24)

      20. 2008 Mo. Legis. Serv. S.B. 1038 (West) (repealing Mo. Rev. Stat. [section]

      1. Citizens United and the Unshackling of Corporate Electioneering

      Citizens United wrestled with the interplay between corporate and union identity and the ability to spend money on political speech. (25) More specifically, the Court was tasked with resolving the question of whether it was constitutionally permissible to restrict corporate or union spending on independent electioneering communications under the First Amendment, provided the corporations or unions and the candidates themselves did not coordinate in the presentation of the message. (26) In declaring the restrictions unconstitutional, the Court explained that "the Government may not suppress political speech on the basis of the speaker's corporate identity." (27) In essence, the Court's ruling freed corporations and unions to spend unlimited sums of money on political advertising supporting or condemning various political issues or individual candidates for political office. (28)

      At issue in Citizens United was a pay-per-view movie regarding then-Senator Hillary Clinton that the Court had concluded was an electioneering communication produced for the purpose of persuading...

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