You Really Shouldn’t Have

A stunning Kentucky lawsuit alleges that what looks a lot like bribery is in fact a form of free speech.

Kentucky state Sen. John Schickel.
Kentucky state Sen. John Schickel, the lead plaintiff in a suit claiming that a law barring gifts from lobbyists to legislators violates the legislators’ constitutional rights.

Photo illustration by Juliana Jiménez. Photo courtesy of Kentucky Legislature.

Chief Justice John Roberts knows how to keep a straight face. The chief has devoted much of his tenure on the court to gutting modest campaign finance laws, clearing the way for corporations to electioneer endlessly and for oligarchs to give candidates mind-boggling sums of cash. Through it all, Roberts has maintained a façade of principled nonpartisanship, insisting that an obvious benefit to the Republican Party is, in reality, a principled vindication of free speech. Roberts’ logic may be either profoundly naive or deeply cynical, but his message is consistent: The government may outlaw only “a direct exchange of an official act for money”—in essence, bribery.

That limitation might seem reasonable to most of us: the very least the judiciary could do. But given the conservative justices’ abhorrence of every campaign finance law they see, it was perhaps inevitable that somebody would take the next step and try to legalize actual bribery.   

That might sound ridiculous—but there’s really no other way to describe the goal of a recent lawsuit filed in federal court by a Kentucky state senator and two libertarian candidates. According to these men, a state law prohibiting lobbyists from donating money to legislators or candidates violates the First Amendment, as does a statute limiting the amount that regular citizens can donate. That argument fits neatly with the Roberts court’s theory that money equals speech. But the suit doesn’t stop at money: The plaintiffs also claim that a law barring gifts from lobbyists to legislators violates the legislators’ constitutional rights. The First Amendment’s sweeping promise of “the freedom of speech,” the plaintiffs argue, guarantees legislators the right to accept expensive meals and gifts from lobbyists eager to secure their votes.

Kentucky’s ethics rules are fairly tight for a precise reason: Its Legislature was once the most corrupt in the country. An FBI investigation called Operation BOPTROT found in 1992 that 15 elected officials, including the speaker of the house, had literally sold their votes for money. In response, the Legislature eventually enacted tight ethics rules for both lawmakers and lobbyists. The plaintiffs, like so many First Amendment warriors these days, are looking to knock lobbyist donation bans and individual limitations, which would open the floodgates to a deluge of money in Kentucky elections. But they’re equally concerned with the gift ban, which they believe violates candidates’ freedom of expression.

An attorney for Republican state Sen. John Schickel, the lead plaintiff in the suit, has explained the First Amendment theory behind the suit: “If you’re a legislator and a lobbyist is your next-door neighbor, and he invites you over to his place for a Christmas party, you can’t accept.” Schickel asserts that he has refrained from attending holiday parties “hosted by longstanding friends, who are lobbyists or employee lobbyists,” because of the gift ban. He says this restriction violates his free speech rights.

Schickel is essentially arguing that the First Amendment protects the kind of not-quite-vote-buying that former Virginia Gov. Bob McDonnell will probably go to jail for indulging in. (McDonnell’s lobbyist pal exercised his free speech by buying the governor, among other things, a $6,500 Rolex watch.) That, of course, is disturbing in itself. But what’s far worse is that, under the Supreme Court’s current precedents, it’s not at all clear that Schickel is even wrong.

The court’s campaign finance jurisprudence is a mess right now, because Roberts is still pretending (barely) that he doesn’t want to demolish every restriction on legislative campaign finance. Instead, Roberts is proceeding case by case, slowly laying the groundwork for his broader revolution. The law here is hazy, but one principle is clear from McCutcheon v. FEC: The government “may target only a specific type of corruption—‘quid pro quo’ corruption.” Is gift giving between lobbyists and legislators “quid pro quo” corruption? Or, more importantly, does John Roberts think it is? This, after all, is the man who penned this credulous passage:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.

As my colleague Dahlia Lithwick summarized this statement, if the chief “can find no evidence of silky burlap sacks lying around with the Koch brothers’ monogram on them, it must follow that there is no corruption—or appearance of corruption—afoot.”

It’s entirely possible to read McCutcheon as shielding lobbyists’ right to give legislators gifts—maybe even Rolexes and Christmas parties—so long as they aren’t in exchange for a vote. That’s the rule for cash, after all; why shouldn’t it hold true for gifts? Similarly, it’s difficult to figure out why the First Amendment should protect the act of donating money and not presents. What’s the constitutional dividing line between dollars and watches? In McCutcheon, Roberts wrote that “when an individual contributes money to a candidate,” his contribution “serves as a general expression of support for the candidate and his views” and “serves to affiliate a person with a candidate.” That’s the basic principle behind the court’s equation between money and speech. But if giving a candidate money helps you “support” and “affiliate” with him, why doesn’t a nice meal or a fancy watch do the same?

If the Kentucky case does reach the Supreme Court, it may be enough of an overreach that the chief justice balks and sides with the liberals. (He did that exact thing just last term, when he ruled against judges’ alleged First Amendment right to panhandle.) Or the lawsuit may be just the vehicle Roberts is looking for to give lobbyists and millionaires even more sway over our decreasingly democratic process. Thanks to the chief, the right of plutocrats to give and spend vast sums on electioneering is now protected more vigorously than is the right to vote. The Roberts court has already disemboweled some of America’s most important campaign finance restrictions. Affirming the right to bribe might be little more than finishing the job.