In this symposium article draft by University of Virginia Law Professor Michael D. Gilbert and University of Virginia Law J.D. Candidate Brian Barnes, the authors examine the relationship between coordinated expenditures and corruption. Only one form of corruption, the quid pro quo, is constitutionally significant, and it has three logical elements: (1) an actor, such as an individual or corporation, conveys value to a politician, (2) the politician conveys value to the actor, and (3) a bargain links the two.
Campaign finance regulations aim to deter quid pro quos by impeding the first or third elements. Limits on contributions, for example, are aimed at fighting corruption by capping the value an actor can convey to a politician. Limits on coordinated expenditures prevent coordination on large expenditures like television ads, but, in turn, transform very useful support into less useful support, reducing the value an actor can convey. But actors can surmount this issue with more spending: $1 million spent on less useful ads can convey a lot of value, often more than smaller amounts spent on very useful ads or contributions. Limits on coordination may also inhibit bargaining, the third element of a quid pro quo, but again, sophisticated actors can surmount this issue: they can bargain without discussing the substance of any expenditures.
As a result, the authors conclude that coordination regulations cannot deter much corruption, at least not when wealthy and sophisticated actors are involved. Consequently, coordination regulations may violate the Constitution. This is not because coordinated expenditures do not corrupt, but because the regulations do not deter. Solving this problem requires confronting a fallacy at the heart of campaign finance: the belief that coordination relates in any operational way to corruption.
Read the full symposium article draft here.