What Does “Corruption” Mean?

Apr 3 2014 @ 2:40pm

One of the key arguments in Chief Justice Roberts’s opinion in McCutcheon is that aggregate limits on campaign donations do nothing to prevent corruption. Sam Kleiner calls this argument “remarkably uninformed when it comes to the relationship between wealthy donors and elected officials,” and questions Roberts’ understanding of “corruption”:

Roberts says that legislation cannot seek to limit what he calls the “general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Roberts said “spending large sums of money” would not “give rise to such quid pro quo corruption.” The reality is, of course, that looking for evidence of direct trades of a Congressional vote for a donation will reveal very few instances of corruption. However, as Lawrence Lessig has established, there is a broader system of “dependence corruption” in which candidates must rely on wealthy donors in order to have access to the political system. The Roberts Court reflects a lack of understanding in how money actually operates in our political system and has adopted such a hollow understanding of corruption that they are able to view our system as free of any corrupting influence.

In his analysis, Lessig also points out that defining corruption down to quid pro quo corruption alone gives the lie to the “originalism” of the Court’s conservative wing:

[B]y “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern.

And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence. …

If the originalists on the Court believe the Framers would have permitted laws regulating the freedom of speech if those laws targeted “corruption,” why would an originalist use an understanding of the term from a 1976 per curium opinion (Buckley v. Valeo) rather than an understanding of the Framers—corruption as in “improper dependence”—made manifest by the Framers again and again?

Noah Feldman notes that the connection between campaign finance and corruption is even younger than Buckley v. Valeo:

What is fascinating and important about the debate over the meaning of the word “corruption” is that the word, which has become a talisman, only appears once in Buckley v. Valeo. The reason for campaign finance law, from its inception, was to facilitate greater equality among voting citizens by stopping the richer ones from influencing the political process too disproportionately. This objective doesn’t depend on the semantic question of whether a system heavily influenced by money should be described as “corrupt.” But in the years since Buckley, the rationale of avoiding the appearance of corruption has come to dominate the doctrine and discourse of the court when campaign finance is on the table. This is an example of misdirection, whether conscious or unconscious, from the fundamental question of whether the Constitution allows Congress to try to enhance voter equality by reducing the influence of money.

On the other hand, David Bernstein calls Justice Breyer’s understanding of corruption, elaborated in his dissenting opinion, “dangerous”:

Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, ”derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”

The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard. Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.” And given that almost everyone deems it appropriate to regulate the economic marketplace to counter inefficiencies and unfairness, why should the much-less-efficient (because it’s much more costly for an individual to make an error in his economic life than to have a mistaken ideology) marketplace of ideas be exempt from harsh regulation?