The Distillery: Is Campaign Finance Eroding our Faith in American Democracy?

Jordan J. Proctor reviews a recent article that seeks to empirically test Justice Kennedy's statement in Citizens United that "the appearance of influence or access ... will not cause the electorate to lose faith in our democracy."

November 9, 2015

The Distillery: A Money in Politics Digest will provide a periodic look at the latest legal research in the ongoing national debate about the role of money in politics.

Rebecca L. Brown and Andrew D. Martin’s recent article, Testing the Harms of Campaign Spending, seeks to test Justice Kennedy’s statement in Citizens United that “the appearance of influence or access. . . will not cause the electorate to lose faith in our democracy.” Kennedy levelled this assertion while striking down a ban on corporate independent expenditures, reasoning that independent expenditures by definition cannot corrupt. 

Inspired by Kennedy’s claim (which is unsupported by any evidence), Brown and Martin ask whether such a harmful erosion of confidence can be shown empirically. Further, if such erosion does exist, they ask if there may still be “an interest, based on the electorate’s loss of faith in our democracy, to justify restrictions on spending.”

The authors argue there is good reason to give Kennedy’s assertion this level of attention.  Implicit in our system of constitutional governance, they say, is an assumption that representatives share a communion of interests with the people they represent. Any outside factors that may impair trust in this relationship or disrupt the overlap of constituent and representative interests will structurally harm the republican system, giving Congress a compelling reason to take necessary action to restore citizens’ trust.

But Brown and Martin’s question stands: Does unrestricted campaign finance actually undermine the electorate’s faith in representative democracy? They ran two experiments to find out.

First they asked respondents if they thought a fictional U.S. senator would be responsive to his constituents’ interests after receiving campaign contributions in varying amounts from a for-profit corporation or a non-profit interest group. The study found that respondents lost faith in their senator’s fidelity to his constituents’ interests as contribution amounts increased (or were undisclosed), regardless of the source.

Brown and Martin also asked respondents if they thought a candidate would be more responsive to a donor who made either independent or coordinated expenditures to support the candidate.  The study found that respondents believed the candidate would be more responsive to the donor when the expenditures were coordinated with the candidate’s campaign, rather than truly independent.

Taken together, Brown and Martin’s experiments illustrate what many intuitively suspect. The greater aid an individual, corporation, or interest group provides to a campaign – either directly as contributions or indirectly through coordinated expenditures – the more voters perceive the candidate will favor the donor’s interests at the expense of average voters.

And if voters perceive that candidates favor contributors’ concerns over theirs, faith in democracy is diminished. Thus, Brown and Martin’s findings challenge Kennedy’s assertion.

To be sure, this study is an imperfect attempt to recreate real-world campaign finance conditions in a laboratory setting. Indeed, while direct corporate contributions remain illegal, for simplicity’s sake Brown and Martin included this scenario anyway, after concluding that direct contributions and the nominally “independent” expenditures now allowed have similar effects on voter perception.

Yet, empirical studies of voter impressions like this one are valuable, in part by making it more difficult for the Court to credibly defend its claim that the electorate’s faith will not be eroded by unlimited campaign contributions. And if the Court cannot justify its position on other grounds, then empirical evidence like Brown and Martin’s provides a positive step toward justification for reasonable campaign finance regulation.

History has shown that the Court does not always shy away from considering empirical evidence in making constitutional rulings. Former Justice William J. Brennan’s clerk Dean Mashimoto recalled Brennan’s opinions in McClesky v. Kemp and Craig v. Boren, in which the Justice carefully scrutinized the benefit of empirical evidence in other constitutional arguments.  According to Mashimoto, Brennan believed that by engaging in empirical analysis, the Court could objectively deal with new problems arising from changing times, and ground its rulings on persuasive scientific authority.

Further research in this area may yield additional evidence that undermines critical assumptions in Citizens United and the Roberts Court’s campaign finance jurisprudence more generally.  Should Brown and Martin’s findings be replicated, the mounting evidence of democracy’s erosion could eventually prove too great for a future Court to ignore.  This could pave the way for a reconsideration of these cases to reflect their real world impact and address the actual harm caused by unfettered money in politics.

Jordan J. Proctor is a second-year student at NYU School of Law and a student in the Brennan Center’s Policy Advocacy Clinic.

(Photo: Thinkstock)