McCutcheon and the New Banana Republic

The Supreme Court's ruling on campaign finance means that all but the most blatant corruption is likely to escape the law's scrutiny.
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Desmond Boylan/Reuters

Last week, I was in Prague for the third annual World Forum on Governance, which brings together people from countries around the world, including Eastern and Central Europe, Russia, China, Ukraine, Turkey, Egypt, South Africa, India, and Bolivia in search of best governing practices.

One highlight of the forum—which I codirect with Tom Mann of Brookings and Stephen Davis of Brookings and Harvard Law School—was a conversation with Pietro Grasso, president of the Italian Senate. Grasso is best known as the longtime chief of the anti-Mafia squad who survived death threats and actual assassination attempts to bring down a series of Mafia leaders and hollow out the organization. He gave a stirring talk on the international nature of corruption, but his advice to those assembled also emphasized the importance of cleaning up campaign finance.

Corruption is a cancer that afflicts societies struggling to adopt democratic values and forms of governance, and those that make no or few pretenses about democratic values. It also hits all established and venerated democracies. It can come in big forms—leaders such as Turkey's Recep Tayyip Erdogan or Russia's Vladimir Putin and their cronies, and oligarchs piling up fortunes; and it can come in smaller forms—professors in Kenya demanding sexual favors or money in return for grades, or local officials in India demanding bribes for services. It can be illegal or legal, including, as Grasso pointed out, corrupt organizations and individuals laundering their ill-gotten gains through legitimate organizations they purchase.

Laws are necessary to combat corruption, but the laws need to be enforced by honest prosecutors and judges, and they need to be bolstered by a culture that supports and abets honest governance. Both the Czech Republic and Slovakia moved to create independent judiciaries by having 12-year terms for judges, insulating them from political pressure. But the Czech Republic, thanks to Vaclav Havel, picked judges of sterling character, while Slovakia, with no Havel, picked some shady ones who now operate in a corrupt fashion, and has no ability to remove or constrain them.

Many Americans come to the World Forum on Governance, and our role, in part, has been to offer advice to reformers inside and outside governments from around the world that we would normally view as "less developed" in their democratic culture and institutions. Not this year. Lots of non-Americans knew about the U.S. Supreme Court's Citizens United and McCutcheon decisions and wondered how the United States could be slipping back so much.

That is a long introduction to get to McCutcheon. Many analysts have written a lot about the decision, with a natural focus on its direct implications for campaigns. Those are huge and important. But they are, I believe, overshadowed by the impact of the decision on corruption in America.

Here, Rick Hasen and Dahlia Lithwick, two of the best legal analysts in the country, have weighed in, and I want to add my weight.

Some have suggested that McCutcheon was not a terribly consequential decision—that it did not really end individual-contribution limits, that it was a minor adjustment post-Citizens United. Others have said that it may have a silver lining: more money to parties, more of the money disclosed. I disagree on both counts. Justice Stephen Breyer's penetrating dissent to the decision pointed out the many methods that campaigns, parties, and their lawyers would use to launder huge contributions in ways that would make a mockery of individual limits. Chief Justice John Roberts pooh-poohed them as fanciful. And, of course, they started to emerge the day after the decision.

As for disclosure, the huge amounts that will now flow in through political parties will be channeled through joint committees, state and local party committees, and others in complex ways that will make real disclosure immensely difficult, if not impossible.

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Norm Ornstein is a correspondent for The Atlantic, a contributing editor and columnist for National Journal, and a resident scholar at the American Enterprise Institute for Public Policy Research.  More

Ornstein served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also serves as a senior counselor to the Continuity of Government Commission. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future; The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann; and, most recently the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann.

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