The word “rape” brings to mind a scenario that is unlike the case of most rapes: A woman walks down a desolate city street or into a darkened house, a stranger steps out of the shadows with a knife or a revolver. In reality, most rapists and victims are acquainted, there is no weapon, and the element of coercion is neither dramatic nor physically overt.
It is for this reason that the sterile expression “sexual assault” has partly displaced “rape” in our criminal lexicon and that while all sensible people recoil from the likes of Whoopi Goldberg and her “rape but not rape-rape” account of Roman Polanski — who drugged and sodomized a 13-year-old girl — there is a kind of queasy recognition of what it is she meant.
As a more practical consideration, this speaks to why rape cases often are so damnably difficult to prove. We know that sex acts a, b, and c took place, perhaps after consumption of x units of vodka, and often none of that is in dispute. What is in dispute is the psychological state of the parties as regards the issue of consent.
Because consent is so difficult to get at as a matter of legal evidence, we often take an indirect approach to preventing rape. We try to persuade young men to take a positive rather than a purely negative attitude toward the question of consent, and we try, in our gingerly way, to persuade young women that they can make themselves less vulnerable by taking certain defensive measures. Feminists complain that the latter savors of blaming the victim, and about that they are not entirely wrong, though of course being feminists they are innocent of any mature sense of proportionality, failing to understand that we can lock our doors at night without effectively countenancing “burglary culture.”
One need not be a batty feminist or hostage to the sad delusions of our sexual liberationists to appreciate that this indirect approach is after all indirect, that while by limiting sexual scenarios we might limit the rape scenarios as well, the problem is not people’s acting on sexual opportunities but their acting on rape opportunities. While some feminists object to the implicit prudery and sexuality-policing of such prudential measures as sexually segregated dorms, others, particularly on college campuses, would see us press ahead in the opposite neo-Victorian direction, with ever-more-demanding rules for the documentation of consent. That these contradictions exist comfortably in the same minds and within the same cultural currents speaks to the Whitmanesque contradictions of the American psyche.
I hope you will forgive that long and unpleasant prologue to my intended subject, which is what we euphemistically call “campaign-finance reform.” There are instructive parallels.
Just as sex is not the problem with rape, “money in politics,” or “big money in politics,” or whatever you want to call it, is not the underlying question with campaign-finance law. The underlying question is bribery. If you are at all familiar with the history of U.S. campaign-finance regulation and the jurisprudence related to it, this is obvious. If not, here is the short version: Just as rape can be very difficult to prove because it requires a judgment about the psychological question of consent, bribery can be very difficult to prove because it requires a similar assessment of the internal state of the involved actors regarding the question of quid pro quo. If I offer Senator Snout a $100,000 donation to a friendly PAC in exchange for his voting my way on the Let’s Subsidize Small Political Magazines the Way We Do Marco Rubio’s Sugar-Baron Sugar Daddies Act of 2017, and Senator Snout takes me up on my offer, that’s bribery. If, of his own volition, Senator Snout votes my way on my bill, I think to myself, “Snout’s a good fellow,” and make a donation to SnoutPAC, that isn’t bribery. If I wisely judge Senator Snout to be the sort of man who is solid on wildly irresponsible and inappropriate federal subsidies for the producers of small political magazines and send a check his way based on that assumption, that isn’t bribery either. No quid pro quo, no bribery.
You can see the problem here: Quid pro quo is difficult to prove beyond a reasonable doubt.
But that is the relevant standard.
Nobody actually objects to “money in politics.” The New York Times spends a great deal of money trying to influence our political discourse and election outcomes: Professor Krugman does not work for free — no, sir! — and you have higher hopes of hearing him fart the Princeton fight song (“The Princeton Cannon”) in the key of E-flat than of seeing him strain his spinal extensors to bend over and pick up anything less than $10,000. Martin Sheen and Elizabeth Warren’s Wall Street law-firm patrons and the New York Bar Association and EMILY’s List are not opponents of “big money in politics,” not even a little.
Bribery can be very difficult to prove or to police. Historically, we have finessed that in part by placing limits on how much money people can donate to political campaigns per se — which is to say, to political operations under the direct control of the candidates themselves — as well as by prohibiting campaign donations from corporations, whether for-profit or nonprofit. That is also why we limit what individuals and corporations can donate to PACs, party committees, and the like. The idea is that we prevent bribery and the appearance of bribery by setting the limits below what any self-respecting politician (ho, ho!) would peddle himself for. The theory is imperfect but not indefensible.
What we should not limit — and, under the First Amendment, do not limit — is how individuals, nonprofits, corporations, or other groups spend their own money to communicate their own political messages. That is because, as Anthony Kennedy put it in Citizens United, these “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.” One need not accept the validity or prudence of the existing limits to understand the rationale for them. And that rationale, properly understood, is not broad enough to cover private parties spending their own money on their own political ideas.
No quid pro quo, no bribery.
We are not going to abolish sex, or restrict it to every other Thursday between the hours of 9 a.m. and 5 p.m. subject to the approval of the dean of students at Bryn Mawr College, even though prosecuting rape cases is difficult. Likewise, we are not (Supreme Court willing) going to gut the First Amendment’s protections of political speech because bribery is hard to prosecute.
And understanding campaign-finance law in its proper context — bribery — is both liberating and illuminating: You may disagree with Ted Cruz on gun control, but only a fool thinks he holds his position because the National Rifle Association pays him to. Never mind, for the moment, that Senator Cruz has held his Second Amendment views since long before he was a big enough fish to be worth bribing: The NRA is not anywhere near the top ten campaign contributors in this country, or the top 100, or the top 200, or even the top 300. It is in the top 400, at No. 383, and senators cannot be bought, or even rented, at that price. And Citizens United wasn’t paying congressmen to vote for ethanol subsidies or to end the Iraq War: It spent its money producing a terrible documentary called “Hillary: The Movie.” Say what you will about that, it isn’t anything like bribery.
You cannot police a crime, or prosecute it, or prevent it, until you understand what it is. That is as true for crimes that are heinous and personal as it is for those that are heinous and political.