The Distillery:The Plight of the Unwilling Donor

A new article challenges the conventional wisdom that politicians are always beholden to wealthy special interests.

February 4, 2016

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.

An article in the latest issue of the University of Washington Law Review by Jennifer Mueller challenges the conventional wisdom that politicians are always beholden to wealthy special interests. Instead, Mueller tells the story of candidates who have the upper hand, able to elicit contributions from reluctant donors who fear the consequences of declining a request for money.

To be sure, billionaires who lament the financial burden of big money politicking are hardly sympathetic characters. But Mueller, who teaches at American University’s Washington College of Law, marshals considerable anecdotal evidence that unwilling donors exist – perhaps even in large numbers – and that they are not all one-percenters.

Consider the small business owner who fears a spurned local official could deny him a critical building permit. Or the corporate officer whose company faces a potentially onerous proposed regulation that could benefit from industry expertise. Or the concerned citizen who receives a fundraiser invitation after seeking assistance on an urgent quality of life issue.

If the owner, officer or citizen acquiesce, is that spending “speech”? Should it receive the same First Amendment protection as freely made contributions? After all, reluctant “speech” may not even reflect the speaker’s true views. Like a harried parent with a petulant child, the unwilling donor might say anything to defuse the situation.

The unwilling donor raises questions about the Supreme Court’s 40-year-old campaign finance framework, which Mueller notes is premised almost entirely on the notion of willing donors.

When reviewing campaign finance laws, the Court typically balances the law’s ability to fight corruption against its burden on speech. In the last decade, however, the John Roberts Court has narrowed its view of “corruption” to mean only quid pro quo – essentially bribery – and concluded that influence and access purchased with  campaign contributions are unavoidable in politics. As a result, the legal burden of campaign finance law inevitably outweighs the sliver of democratic harm the Court deems worthy of consideration.

If Mueller is correct that not all donors are willing donors, then the actual burden of campaign finance laws on speech is less extensive than supposed. Moreover, Mueller argues, not all contributors are actually constrained by these laws; some may even feel liberated. For these unwilling donors, it is the absence of regulation that creates a burden – a burden on the choice of whether to speak at all.

Mueller’s analysis reminds us that preventing quid pro quo corruption is not the only important interest that can be served by campaign finance law. Reasonable restrictions might also protect individuals’ right not to speak. Or, at very least, to not be compelled to speak in ways that do not reflect the speaker’s true views. Unwilling speech is not only costly to the speaker but also distorts the political discourse with insincere viewpoints.

It also highlights that the current Court’s narrow definition of “corruption” omits an entire category of threats to democratic government – politicians who extort campaign money from citizens who would rather be left alone. Campaign finance regulation can protect a range of important interests. And it has become clear that the Supreme Court’s current view of money in politics serves few of them well.

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