On Monday, Sen. Susan Collins accused political opponents of Judge Brett Kavanaugh of attempted “bribery.” The charge itself is without any legal merit whatsoever. That complaints about the campaign finance effort came from Collins, Republican election lawyer Cleta Mitchell, and an aide to Senate Majority Leader Mitch McConnell make the episode almost too rich to be believed. Their cries of bribery, illegality, and lack of principle lay bare the bankrupt campaign finance system that Mitchell and McConnell helped create and that Collins has contributed to with previous Supreme Court votes and will supersize with her likely vote to confirm Kavanaugh.
Collins labeled as a “bribe” a fundraising plan by two progressive Maine groups, aided by the company Crowdpac, to raise funds for Collins’ eventual opponent in 2020. People are pledging to give money via Crowdpac to that unknown future opponent, but donors will only be charged for the donation if Collins votes “yes” on Kavanaugh’s nomination to the Supreme Court. As of Tuesday night, the groups reported pledged donations of more than $1 million, with a $1.3 million goal. There were more than 39,000 individual pledges ranging from $1 to the maximum allowable donation to a candidate of $2,700.
Now we can argue about whether the political threat to Collins funded by tens of thousands of small donations should be illegal. But claims by Mitchell and others that the fundraising effort is illegal are wrong, in part thanks to the deregulated campaign finance system that Mitchell and others have helped to create through litigation and a sympathetic Supreme Court.
Mitchell pointed Newsmax to a federal bribery statute, Title 18, Section 201 of the U.S. Code, which makes it a crime when someone “directly or indirectly gives, offers, or promises anything of value to any public official … for or because of any official act performed or to be performed by such public official.” Mitchell said: “These people have conspired to do just that—they are dangling a fairly substantial ‘thing of value’—namely, $1 million to be given or not given to Sen. Collins’ opponent, in exchange for her vote on a specific matter before the Congress.”
But the Maine groups did not violate section 201. The groups are not promising anything of value to Collins to vote in a particular way; nor are they promising anything to Collins’ (now unknown) opponent for the opponent to vote in a certain way. This behavior does not come close to violating the federal bribery statute. And it’s not the first time Mitchell has made wholly unsubstantiated claims of campaign finance violations against political opponents.
And what about reading this statute or other federal statutes to prevent what might look like extortion of Collins to vote in a particular way? Well, the Supreme Court has told us in cases like 2010’s Citizens United that large amounts of money sloshing around the system are just fine so long as they are not given by an individual directly to candidates. So long as there is no direct quid pro quo—dollars for political favors—all is fine.
And the behavior of the two Maine progressive groups is not unusual, except for the fact that it is funded by small donors. This is demonstrated easily by looking at the behavior of those shouting bribery the loudest. As Adam Smith noted, although Sen. John Cornyn boosted Collins’ bribery complaints, back in January he was urging the Koch brothers to spend hundreds of millions of dollars to reward the Republican Party for tax cuts benefiting wealthy donors. This came after big donors threatened to withhold money until Republicans got that tax bill passed. That’s closer to Mitchell’s claims of “bribery” than what the Maine groups are doing. Indeed, a 2014 report by Ohio State University law professor Dan Tokaji and then-fellow Renata Strause found that threats by super PACs to spend against incumbents if they don’t vote the way the super PAC donors want is an everyday Washington occurrence.*
Perhaps the chutzpah award, though, should go to Sen. McConnell’s deputy chief of staff Don Stewart, who urged “every Maine Democrat … to refuse to accept this tainted funding” as the “principled” thing to do.
Not only has McConnell been one of the most ardent opponents of campaign finance regulation, arguing that people should be able to give unlimited contributions directly to candidates as a matter of the First Amendment, he’s also been the key to keeping the Supreme Court in a position to strike down these laws with his blockade two years ago of Judge Merrick Garland. Garland would have been a key vote to uphold many campaign finance limits, had he been confirmed to the Supreme Court. Thanks to McConnell’s unprecedented obstruction, the judge didn’t even get a hearing.
Now with the confirmation of Justice Gorsuch last year, and the likely confirmation of Judge Kavanaugh in the coming weeks thanks to Collins’ key vote, things are going to get much worse. As I explained recently in Slate, Judge Kavanaugh is a self-professed outlier when it comes to the First Amendment, agreeing with McConnell that there are constitutional problems with limiting the amount of money that candidates can directly accept.
If the Maine story has a silver lining, it is this: So long as the Supreme Court is going to keep the money spigot open for wealthy donors, some of the rest of us appear to be at least trying to pool together resources to attempt to fight back. An arms race between the superrich and everyone else to try to influence legislative outcomes is far from ideal, but it is better than wholly ceding the ground to the plutocrats.
Correction, Sept. 13, 2018: Due to an editing error, this piece initially misidentified Renata Strause as an Ohio State University law professor. She was a fellow.