In a policy paper just published by the Cato Institute, John Samples takes up the constitutional amendments proposed in response to Citizens United and attempts to expose their dangers. Samples, a distinguished scholar of campaign finance, has much to offer here, regardless of where a reader stands on the feasibility of these proposals. It may be true, as Samples writes, that the constitutional amendments he criticizes “provide answers to constitutional questions, not a means for courts to reconsider those questions.” John Samples, Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United (April 2013) at 9. They do provide a means for others to reconsider those questions. And, in fact, Samples’ analysis leads him to return to first principles and to ask the question: what control should we entrust to the government in matters of campaign finance, and on what theory?
In the prevailing theories of corruption Samples sees trouble; and most of all, he is concerned that elected officials in the grip of self-interest will misuse their power over spending to weaken the constitutional plan for “individual rights and limited government.” Id at 10. Yet within these competing theories there is found the seed of a concern with corruption as an assault on the separation of powers that might draw more of a sympathetic hearing from John Samples and others who are drawn to the libertarian vision.
This is the basic argument from a separation of powers perspective for measures to address campaign finance:
Each of the branches must hold fast to its separate and independent role in checking the others, and the Constitution in various places guards against the risk that one branch will weaken the independent standing, and hence capacity for checking, of another. For example, the Ineligibility Clause prohibits the Executive from employing Members of Congress because the intent or result may be the promotion of conflicting loyalties and an emasculated legislature. Art. I, Sec, 6, Cl. 2. It is not hard to see that money in private hands available for political expenditures can have similar effects. If the same interests funding Presidential elections (and lobbying the Executive) can court the Congress with offers of campaign cash, the legislature and the executive are at risk of answering to the same source and losing the constitutionally desired separation from each other.
Full Article: Theories of Corruption and the Separation of Powers.