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A Viewpoint for Political Donations and Democracy

Motohiro Hashimoto/Vice President of Chuo University and Professor of Faculty of Law
Area of Specialization: Public Law

1. Politics and money

The relationship between politics and "money" is shaking the political administration. Events that have been seen many times are unfolding again. There is no doubt that making kickbacks using income from tickets sold for political banquets is fundamentally shaking the Political Funds Control Act. However, in this article, I would like to provide one viewpoint for considering political funds, rather than a prescription for individual cases.

Politics costs money. A huge amount of funds are necessary to become an influential politician. A person can only become a powerful politician if they excel at collecting funds. However, when politics and money are connected, misconduct (corruption) is born. A political donation that does not expect a reward is equivalent to an offer of money that does not expect profit. If a direct connection between the administrative authority and rewards of politicians becomes real, bribery will occur. To prevent such a connection from being viewed as bribery, political donations should be provided indirectly over the medium- and long-term through intermediary organizations. Although there may be political donations which are made in the hope for the healthy development of democracy (ruling of the Supreme Court in the case of Yahata Iron & Steel), in reality, the majority of donations are made with the expect of reward.

It is difficult to prohibit political donations. If funding by supporters is cut off, only extremely popular people or extremely wealthy people will be able to become influential politicians. People who possess ability but do not possess funds will not be able to become politicians. Furthermore, funding is the most easy-to-understand method of participating in politics. There is no need to outwardly state your opinion. You only need to purchase a ticket to a political banquet (in reality, the majority of people attending such banquets are reluctant to do so) or remit funds via Internet banking. Prohibiting political donations also leads to restricting the participation of citizens in politics. Put simply, "money talks."

Therefore, there is always hesitancy in regard to establishing regulations of political funds. Regulations are half-hearted when considering a balance between the factors of preventing corruption, the fact that politics is expensive, and the fact that the citizens participate in politics. There are loopholes everywhere. If the regulations are too strict, the freedom of political activities is restricted. If there is not enough regulation, it will cause corruption. Regulations on political donations are always an exercise in compromise.

2. Adversary democracy

Now, what if regulations on political funds are loosened, like in the United States? In the United States of 2010s, regulations on political funds were continually determined to violate the Constitution. Citizens United vs FEC, 558 U.S. 310 (2010) and McCutcheon VS FEC, 134 U.S. 1434 (2014) ruled that regulation of political funding is the same as regulation of speech. This type of regulation on expression tends to discriminate the viewpoints of the persons expressing themselves, so the rulings stipulated that a strict screening be required (assuming the existence of a Constitutional violation).

For example, consider the case of regulating the total amount that can be contributed as political funding. According to the Supreme Court of the United States, this is viewed as regulating the volume of speech. Successful funding, buying out spaces for political advertisements, and being able to display a large amount of advertising to support specific candidates and political parties is the result of the free market theory of thought, and government regulations are not allowed. If the volume of speech cannot be regulated, the total political funds must not be regulated as well. Regulating the use of political funds is also unconstitutional because it interferes with what a person can talk about and not talk about. It was therefore invalidated to implement regulations on the total amount of personal political donations and to restrict the method of use. According to the logic of the Supreme Court of the United States, a significant part of Japan's Political Funds Control Act is likely to be deemed unconstitutional.

I believe that there is an American-centric view of democracy in the background of the harsh attitude toward regulations on political funds. An election is a game, and players must do everything in their power to win an election. If elections are "winner takes all," this tendency is even stronger. All candidates need one more vote to win. Such a democracy is called an adversary democracy. The government should not be involved in the process or results of this game. Freedom of expression has strengthened the trend toward the rights of the majority (the rights for winning a political dispute) instead of the rights of the minority (the right to oppose power). Since political donations are political expressions, restrictions on this freedom are subject to strict review. This concept has been the prevalent view of the Supreme Court of the United States since 2010.

3. Political donations and the multipolarization of society

As a result, politics has transformed into a competition that revolves around funding, not for policies and claims. Society is divided, and it is difficult to seek cooperation between opposing political parties. Extremes are also preferred, and there is sparse room for harmony, reconciliation, and moderation. Politics became an MMA fight which is all or nothing. There is no doubt that one of the causes of the confusion in the United States is the existence of adversary democracy. The famous constitutional scholar Robert Post wrote a book entitled Citizens Divided (2014) which ridicules the Citizens United ruling which declared regulations on political funds to be unconstitutional. It can be said to be a symbol. This book is a symbol of the all or nothing state of politics in the United States. The judiciary has lent a hand in the division of society.

On the other hand, it is impossible to deny citizens the freedom to invest from their pocket money, support candidates, and support the realization of policy. Political donations for supporting competent but non-funded candidates are the exact kinds of donations which support the growth of democracy. We do not underestimate the meaning of political donation in democracy. The Political Action Committee, which creates a receptacle for personal donations, is a unique mechanism in the United States, which hates the established rules and prefers the grassroots activities of citizens.

Of course, as long as the way the citizens are involved (their commitment) in democracy is different, there is no need or reason for systems in Japan to be modeled after those in the United States. While giant organizations donate an overwhelming amount of money to giant political parties, they are less interested in personal donations. There is also a problem with the structure of elections that are advantageous for candidates with relatives who have served as politicians. Since the recipients lack awareness for donations, it is possible to create kickbacks which are not listed in reports. Therefore, it is meaningless to discuss only political funds without making a breakthrough in the current state in which there is a division between the dominant class who become politicians and the controlled class who only provide a political party system.

Reference Literature

Hashimoto, M., Seiji Shikin Kisei to Shiho shinsa no yakuwari - McCutheon hanketu wo yomu (tentative translation:Regulations on Political Funds and the Role of Judicial Examination: Reading the McCutheon Ruling), Comparative Law Review, Volume 49, No. 1 (2015), Hashimoto, M., Kaisha no Genron - Shakaitekeki Jituzonsei ni tsuite kangaeru (tentative translation: Speech by Companies: Considering Social Reality), Chuo Law Review, Volume 127, No. 11, p. 77 (2021), Watanabe, Y., American Democracy no gyakusetsu (tentative translation: The Paradox of American Democracy), Iwanami Shinsho (2010), Watanabe, Y., America to wa nanika (tentative translation: What is the United States?, Iwanami Shinsho (2022), and more.

Motohiro Hashimoto/Vice President of Chuo University and Professor of Faculty of Law
Area of Specialization: Public Law

Motohiro Hashimoto was born in Tokushima Prefecture in 1959. He graduated from the Department of Law, Faculty of Law, Chuo University in 1982.
He completed the Doctoral Program of the Public Law Course in the Graduate School of Law, Chuo University in 1989. He holds a Ph.D. in law.
He became a Professor in the Faculty of Law, Chuo University in April 2004 after serving as an Assistant Professor and a Professor at Kochi Women’s University (currently the University of Kochi).
He was appointed as Dean of the Faculty of Law, Chuo University in November 2009 (served until October 2013).
He was appointed as a member of the Chuo University Board of Directors in November 2009 (served until October 2013).
He was appointed as a Vice President of Chuo University in November 2014 (served until November 2017).
He was appointed as an Executive Director of Chuo University in November 2017 (served until June 2020).
He was appointed as a Vice President of Chuo University in May 2021 (current position).

His current areas of research and activity include the positioning of individuals and organizations in the Constitution, modern society and freedom of information, and questions concerning the right to enact ordinances.

His major written works include Kindai Kenpo niokeru Dantai to Kojin (tentative translation: Organizations and Individuals in Modern Constitutions), (Fuma Shobo and Shinzansha), Puchi-zemi Kenpo 1 (Jinken) (tentative translation: Petit Seminar Constitution 1 (Human Rights)), (Hougakushoin), Yokuwakaru Chihojichiho (tentative translation: Concise Local Autonomy Act), (co-authored, Minerva Shobo), Introduction to Japanese constitutional law, (Hokuju Shuppan), Kokka koumuinho no kaisetsu (temtative translation: Explanation of the National Public Service Act), (co-authored, Hitotsubashi Shuppan), Hyogen no jiyu riron to kaishaku (tentative translation: Freedom of Expression: Theory and Interpretations), (Chuo University Press), Nihonkoku kenpo wo manabu dai-3pan (tentative translation: The Constitution of Japan: 3rd Edition), (Chuokeizai-Sha), and more.