Since Citizens United, members of Congress have been increasingly engaged in a never-ending campaign to snare their share of cash flooding the political marketplace. But last week Chief Justice John Roberts deserted his conservative brethren, writing an opinion that offers Congress a roadmap for cleaning up campaign finance. If Congress embraces Roberts’s support for a ban on judges personally soliciting campaign contributions, and applies it to its own members, it can bring “dialing for dollars” to a decisive end.
On the surface, the case of Williams-Yulee vs. Florida Bar only involves judicial elections. To preserve the impartiality of its judges, Florida had barred candidates from personally soliciting funds—requiring them to delegate this task exclusively to their campaign committees. In upholding that ban, Chief Justice Roberts emphasized that judicial candidates had complete freedom to speak on any issue; they simply were barred from saying: “Please give me the money.”
The Chief Justice emphasized the unavoidable power-play involved: “The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest.” Personal involvement, he writes, “creates the public appearance that the candidate will remember who says yes, and who says no.”
Roberts’s critique is compelling when applied to judges, and even more powerful when applied to Congress. Nowadays, fundraising pressures on its members are so intense that they can’t afford the time to do what they’re paid for—serving responsibly on committees, making informed judgments on big issues, and building the trust required for creative cross-party solutions. Their personal involvement diverts them from the central tasks of political representation.
Senators and representatives can’t even spend enough time to meet constituents in their offices, since it’s illegal for them to solicit funds on government property. Instead, they are obliged to trudge a few hundred yards from the Capitol to enter telemarketing sites provided by their political parties. Jammed into small cubicles, they spend up to five hours a day begging for cash from big donors. As former Representative Dennis Cardoza described the scene, the place “smell(s) like a gymnasium locker room after a few hours. It's awful, it's like a sweatshop.” That’s why he refused to run again for Congress last year.
Members don’t enter these sweatshops voluntarily. Their party leaders tie top committee jobs to specific fund-raising quotas. Given the stakes, it’s only rational for them to spend time attending fundraisers rather than study up on the issues, or engage in the collaborative efforts that would make them competent legislators.
The chief justice took pains to distinguish between judges and other elected officials. His recent decision cautions that, in contrast to judicial candidates, “politicians are expected to be appropriately responsive to … their supporters,” But Congress would be on firm constitutional ground in condemning current Washington pathologies as “inappropriate” when they systematically undermine the governmental “integrity” that Roberts makes central to his opinion.
In taking Roberts seriously, Congress would be redeeming the dire prophecies of Justice Scalia in his ringing dissent. Scalia denounces the Court’s “twistification” of an “ill-defined” notion of “integrity” so that it “starts to sound like saintliness.” But in applying Roberts’s principles to its own practices, Congress would be far more modest. It would not be reaching for the skies, but merely making it possible for members to discharge their mundane duties as serious legislators.
If a future opinion upheld a Congressional ban, its reasoning would involve the straightforward application, not a radical extension, of Roberts’s basic rationale. Scalia’s dire predictions have often been vindicated by subsequent majority decisions—recall his passionate condemnations of the Court’s rulings on gender equality. A tightly crafted law might compel Roberts to recognize the extension of his logic to other elections, just as Scalia plainly fears.
There is, in other words, now a clear blueprint for Congress to clean up its own act. Senator Christopher Murphy is right to emphasize a first step: "It's important for us to expose the ugliness of political fundraising, because people are not going to care … if we continue to pretend like it isn't a big part of our lives." But it’s also important for the presidential candidates to turn up the heat on the congressional leadership of both parties during the 2016 elections.
Hillary Clinton has made an important contribution to that effort by focusing on campaign finance as key element of her reform platform. But at present, she is only gesturing in the right direction, promising more details in May or June. The challenge she faces—along with her like-minded rivals—is to move beyond unrealistic proposals for a constitutional amendment overruling Citizens United and allowing for limits on spending. Such initiatives will go nowhere, since they require the support of two-thirds of Congress and three-fourths of the states.
Far more useful are concrete steps—like a ban on personal solicitations—that might inspire a majority of members to liberate themselves from their sweatshops and demonstrate to skeptical constituents that that they are serious about their real job: crafting serious solutions to the critical problems of the 21st century. A ban on personal solicitations would certainly generate litigation, but it would give the Supreme Court—including Roberts and Justice Kennedy—another chance to modify the confident assertions of Citizens United to fit the grim facts of political life in real-world America.
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