Where do campaign contributions end and bribery begin?
The death of John McCain and the Nevada U.S. Senate campaign contain reminders of the way the U.S. political system has been the target of lavish campaign spending that is distinguished from bribery only by the use of the term campaign contributions.
In his 2010 reelection when he faced a rough primary from a right wing candidate, McCain disappointed his supporters in both parties. He stopped talking about climate change. He switched sides on immigration (he had co-sponsored a major bill with Edward Kennedy), praising Arizona’s anti-migrant law. He switched sides on “Don’t Ask/Don’t Tell.” He reversed his position on the 2008 bailouts and—of all things—on campaign finance reform, a signature McCain issue.
McCain believed a corrupting campaign finance system was basic to the political polarization and dysfunction the nation has experienced, and to many his conduct in 2010 proved it.
Several U.S. Supreme Court decisions have fostered the similarity between bribes and campaign contributions:
• Buckley vs. Valeo, holding that money is speech and overturning limitations on contributions to candidates for federal office.
• McCutcheon v. Federal Election Commission, invalidating cumulative limits on campaign contributions, allowing the rich to pour unlimited sums into campaigns.
•Citizens United vs. Federal Election Commission, which said corporations are persons entitled to first amendment protection and thus can spend as much as they want in campaigns.
“We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” Supreme Court Justice Anthony Kennedy wrote in Citizens United.
Well, let’s see.
The billionaire polluters, the Koch brothers, have a political agenda. They oppose efforts to protect against climate change, but they support trial lawyers’ interests and criminal justice changes. But they have a particular dislike of the Affordable Care Act. They formed at least four political committees to oppose enactment of the ACA and then to impede its implementation and support candidates who oppose it.
On June 23, 2017, U.S. Sen. Dean Heller of Nevada said of one ACA repeal measure, “This bill would mean a loss of coverage for millions of Americans and many Nevadans. I’m telling you right now, I cannot support a piece of legislation that takes insurance away from tens of millions of Americans, and hundreds of thousands of Nevadans.”
That stance was helpful to his fellow Republican, Gov. Brian Sandoval, who had established a state exchange for the ACA and has expanded the Medicaid rolls.
For months, Heller threaded a needle on the issue that drew criticism from left and right. He endured a humiliating scene when, seated beside Donald Trump, he heard Trump threaten him publicly.
“This was the one we were worried about,” Trump said. To Heller: “You weren’t there. But you’re going to be. You’re going to be.”
Then, to the audience: “Look, he wants to remain a senator, doesn’t he?”
An alliance of conservatives headed by the Kochs said they had assembled a war chest whose purpose was to protect Republican senators—but only those who had voted against the ACA.
By autumn of 2017, Heller and Sandoval were on opposite sides of an ACA repeal measure sponsored by Sens. Lindsey Graham and Bill Cassidy.
On March 16, 2018 Trump asked Heller’s opponent in the Republican Senate primary to withdraw from the race, which he did, giving Heller a free ride in the GOP primary.
On April 5 in Clark County, Heller spoke to a closed meeting of the Nevada Republican Men’s Club, whose meetings are normally open. According to a recording of that meeting leaked to the Las Vegas Review Journal, Heller said he supported repeal of the ACA and blamed other senators for preventing its repeal.
“If we have 51 Republicans that will vote to repeal and replace, it will happen,” he said. “We need 51 votes. And right now we know there’s three votes we’re missing for that 51—John McCain, Susan Collins and Lisa Murkowski.”
That was a reference to the July 28, 2017 “skinny repeal” measure that would have repealed part of the ACA. Heller voted for it. At that time, Heller also had a non-binding resolution of his own that endorsed Medicaid expansion under the ACA. He also said he had his own plan that would leave the ACA in place but would in part end Medicaid’s open-ended entitlement. But it would also have cut funding to Nevada. Heller claimed the state would actually get more money, but he said it in a written statement and no follow-up questions could be answered.
By August this year, Heller was trumpeting the damage he and other Republicans had been able to do to the ACA: “We did eliminate the [individual] mandate. We did get some of the taxes. I did push back and postpone the Cadillac tax and some of those issues.”
Last month, the Kochs’ Americans for Prosperity PAC started running ads in Nevada supporting Heller.
At the beginning of 2017, Heller was committed to preserving most of the ACA, and the Kochs said they were not supporting him. Now, Heller has largely abandoned the ACA, and the Kochs are advertising for him.
Heller is hardly the only politician is this position. Shifts of position can be—and have been—shown to align with campaign money about other figures in both political parties.
U.S. District Judge Myron Thompson of Alabama: “The Supreme Court needs to address this issue and provide guidance to the lower courts, prosecutors, politicians, donors and the general public. … Much ink has been spilled over the contours of campaign finance law. Far less attention has been paid to what actually constitutes a ‘bribe'.”
The Supreme Court has addressed it, but not in the way Thompson wished. The difficulty is seen in the prosecution for bribery of Allentown Mayor Ed Pawlowski in Pennsylvania this year for alleged pay-to-play payments involving city contracts that his lawyers said were campaign contributions. During the trial, the Allentown Morning Call reported, “Adding to the hurdles prosecutors must clear is a nearly 30-year-old Supreme Court decision that sets a higher standard for proving bribery in cases like Pawlowski’s involving campaign contributions.”
In 2016 the U.S. Supreme Court overturned bribery convictions of former Virginia governor Robert McDonnell and his wife. There was speculation the ruling would pave the way for overturning numerous public corruption cases already decided. When the case of U.S. Sen. Robert Menendez, accused of bribery, ended in a hung jury, causing a mistrial, the Justice Department decided against a retrial because of the Supreme Court ruling in the McDonnell case. During the case, Menendez’s lawyers had cited both Citizens United and McCutcheon in their efforts to have the case dismissed.
In 1978, an unsigned note in the Harvard Law Review read in part, “Though federal law prohibits the offenses of bribery and gratuity, the statutory language does little to set these offenses apart from the giving or receiving of legitimate campaign contributions and has left courts—and later Congresses—to cope with the problems of drawing a clear distinction."