Money in politics. Time and time again, it’s high up on voters’ lists of priorities on what needs to change to improve the political landscape in Washington, D.C. and elsewhere.
Of course, what people likely envision when meditating on this subject is PACs and super PACs and “dark money” contributions and donations from millionaires, billionaires, and others with the kind of serious capital that makes financially supporting a political candidate no big thing. For the right-wing conspiracists among us, cue the George Soros train of thought about him being Satan, or a disciple of Satan, or somehow getting Satan to work for him. As long as the Devil is involved somehow.
Recently, a crowdfunding effort related to the increasingly contentious confirmation process for Supreme Court Justice nominee Brett Kavanaugh made national news because of just how problematic Kavanaugh’s nomination is, as well as because of its unusual format.
A campaign on CrowdPAC targeting Sen. Susan Collins (R-ME) will charge the accounts of pledged donors in the event Collins votes “yes” on Kavanaugh’s confirmation. The donations, which total upwards of $1 million, would go to her opponent’s campaign in the election for her seat in the Senate. According to Collins, this is essentially a “bribe” to get her to act in a certain way.
Does this crowdfunding campaign aimed at Collins’s vote and her re-election prospects in 2020 constitute a quid pro quo tantamount to a bribe? Furthermore, is this kind of voter participation a sign of democracy at work or a sad commentary on the state of politics today? As it tends to be the case, the answers depend on who you ask, but let’s consider one particular set of viewpoints.
First, there’s the matter of whether the CrowdPAC initiative is a bribe. Deborah Hellman, professor of law at the University of Virginia, and Stuart Green, professor of law at Rutgers University, co-authored a piece for The Atlantic dwelling on these issues. As the duo argues, Collins’s case doesn’t quite “follow the script” of a bribe per federal bribery law.
For one, voters are not trying to offer Collins herself money, but rather her opponent, such that even if she accepts the offer, so to speak, she won’t receive any money for doing so. In this sense, it’s clearly not a bribe. There’s also the notion that rather than this being a “bribe,” it could be considered a “threat.” Legally speaking, however, a yes-vote wouldn’t cost the senator anything. Sure, it might encourage the admonishment of pro-choice groups and other progressive-minded individuals, but it’s not as if Collins stands to lose money or her life if she fails to comply.
Accordingly, the case that the CrowdPAC campaign is a flagrant violation of bribery or other campaign finance-related law may not be a strong one. Still, there’s a larger conversation to be had about the implications of campaigns of this nature for participatory democracy, notwithstanding that Susan Collins might yet see a material consequence by having to raise money to offset the $1 million+ her opponent would receive. As Hellman and Green have it, this points to a “conundrum at the heart of our law and politics”:
Bribery laws are designed to keep money from influencing political decisions. Yet Supreme Court cases holding that political giving and spending are forms of political speech are designed to let that happen. How can we prohibit the use of money as a form of political expression at the same time that we validate it?
The whole point of bribery law, as traditionally understood, was to prevent citizens using money to achieve ends that ought to be achieved through voting, and politicians from being “bought.” In a healthy democracy, Maine citizens would threaten a Kavanaugh-supporting Collins with electoral consequences, not monetary ones. In our democracy, it’s commonplace for voters to express their views at least as much with their credit cards as with their ballots, and routine for politicians to respond by adopting positions that follow the money.
The suggestion of a broken political system is no big revelation. You have probably felt the same way, if not experienced the inherent flaws of “politics as usual” first-hand. Nevertheless, our esteemed professors of law have a point about what constitutes true participation. While we might donate to campaigns or express our views on candidates via social media, these contributions do not necessarily translate to votes.
For example, despite fervent support, Bernie Sanders was facing an uphill battle to upend Hillary Clinton in the 2016 Democratic Party presidential primary. That is, for all Bernie’s fanatics’ devotion, and whether registered Dems were thinking pragmatically or had some other reason for voting the way they did, “Hill-Dawg” was the clear winner at the polls.
As Hellman and Green put forth, there may be some virtue in a crowdfunding effort designed to influence a senator’s vote, at least relative to the “plutocrat” model that takes us further away from the “one-person-one-vote principle on which our democracy is based.”
Even so, they argue, it’s a “cold comfort,” for even if Collins’s CrowdPAC case is not a literal bribe, it still feels like bribery. In other words, when political donations and spending is considered a way to participate in the voting process, and when campaigns to influence opinions involve fighting money in politics with more money, “it will always be difficult, even in principle, to distinguish a campaign contribution from a bribe.”
At the minimum, we’d be inclined to agree that Hellman and Green aren’t wrong. For all the enthusiasm with which opponents of Brett Kavanaugh’s nomination might greet over a million dollars in donations to this cause, these considerations should temper that zeal.
About that nomination, though. Much as people might agree that the two-party system is messed up in theory and then voted strategically for Hillary Clinton to block Donald Trump in practice, we might concede that we need to get money out of politics in theory and then throw our own hard-won dollars at one politician to defeat someone we like less in practice. In both cases, there is a perceived exigency that would supersede our utmost ideals. We are willing to sacrifice what is best for what is politically expedient or feasible.
With Brett Kavanaugh, the perceived exigency is related to Republicans’ attempts to jam him through the confirmation process before the November midterms. Kavanaugh’s positions on the scope of executive authority (highly relevant in the era of President Trump) and on abortion (social conservatives have long sought to overturn Roe v. Wade) have activists and others justifiably concerned. This is before we get to reservations about Kavanaugh’s alleged perjury during his confirmation hearing as well as concerns about his character related to accusations of sexual assault. When members of the GOP are mulling the need for a delay alongside Democrats, after all, it raises an eyebrow or two.
It is within this context that we are left to consider whether the ends justify the means in attempts to sway Susan Collins’s vote. As Ady Barkan, activist and someone dying from the ravages of ALS, believes, Kavanaugh’s nomination is a threat to health care for millions of Americans, notably those with pre-existing conditions, a threat to women’s right to choose, and a threat to organized labor.
In this respect, the issue of his nomination isn’t just a passing concern—as Barkan and others would aver, it’s a matter of life and death. Thus, for all the supposed “hysteria” of the left over Kavanaugh, it’s worth noting that they treat this whole affair with due seriousness. By this token, 3,000 wire hangers sent to Sen. Collins’s office isn’t an instance of trolling, but a metaphor for the danger to social progress Brett Kavanaugh represents.
There is hope that Senate Democrats hold the line on delaying a confirmation vote and to voting “no” on Kavanaugh when the vote comes. At the very least, they should offer resistance to Republican attempts to push him through and try to create a conservative majority in the Supreme Court. Conceivably, the delay and repeated calls to oppose Kavanaugh could convince “swing vote” GOP senators like Susan Collins to move away from a party-line vote. Of course, Dems in red states facing re-election are on the fence about their nomination vote, so there are electoral “realities” to keep in mind.
After a certain point, though, and if voters are willing to sacrifice their money and principles to the cause, these swing vote senators should contemplate what their principles are regarding the Brett Kavanaugh vote. They may dismiss crowdfunding efforts like Ady Barkan’s as bribery or coercion, but their commitment to their stated values is not above reproach either.