In the fight over contribution limits, litigants argue over how much money, given by whom and in which ways, can push normal politics into corruption or the certainty of its appearance. McCutcheon tests the proposition that corruption can be a byproduct of the total volume of giving, not just how much a donor hands over to a specific candidate or political committee. McCutcheon v. Fed. Election Comm’n, No. 12-536 (S. Ct. docketed Nov. 1, 2012). Other cases bring the courts into the dispute over the relationship between corrupt potential and the size of the contribution, the tipping point at which the sum given exceeds what it is safe to allow. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Threading its way through these arguments is the question of whether and how the identity of donors, such as political parties, should be weighed in the bargain. See e.g. Illinois Liberty PAC v. Madigan, Case:1:12-cv-05811 (N.D. Ill.). These arguments are waged energetically but without much precision or consistency.
Judging corrupt potential in part by the identity of the donor has proven challenging. Parties get the benefit of the doubt some of the time, and then, on other occasions, very little of it. See. e.g. McConnell v. Federal Election Commission, 540 U.S. 90 (2003). The arguments about how they should be treated are suspended between the view of them as agents of corruption—mere vessels for the corruption of candidates who control them—or as indispensable mediating institutions fully deserving of special treatment. The size of a “safe” contribution has also eluded sharp definition. The Court has given the legislature room to set the limits, but has sketched in vague terms the “danger signs” that they have been set too low. Randall v. Sorrell, 548 U.S. 230 (2006).
The campaign finance law that governs contributions is a unstable compound of these arguments and considerations and is likely to remain so. Yet it has consumed the better part of the attention paid to money-in-politics corruption. This has meant that reform energy is mostly invested in the electoral sector, where the money is solicited, given, and then spent on electioneering, and not as much in the field of government, where the inquiry turns to how we expect the legislator who has received the money to behave. In this field—and setting aside egregious misconduct punishable under the criminal laws—the issue is one of officeholder “ethics” and the regulators are the officeholders themselves, acting on their constitutional authority to establish disciplinary rules. Because it is widely supposed that Members cannot be trusted to exercise this power wisely, “ethics”—except on the occasion of scandal—receives but a fraction of the policy debate or scholarly writing devoted to campaign finance.