In Campaign Finance Ruling, Justices Struggle to Define CorruptionZephyr Teachout in The Wall Street Journal, April 02, 2014
Behind Wednesday’s Supreme Court ruling striking down aggregate limits on political contributions was a clash not just over the First Amendment and political spending but — at a more basic level — how to define the concept of “corruption.”
Curbing corruption, after all, was the government’s primary goal when it enacted the restrictions in the 1970s.
McCutcheon v. Federal Election Commission was the latest attempt by the high court to size up the problem of corruption in American politics and weigh it against rights of expression at the heart of our democracy.
The plurality opinion penned by Chief Justice John Roberts favored a relatively narrow definition of corruption, equating it with bribery.
The goal of campaign finance restrictions should be to prevent “quid pro quo corruption or its appearance,” he wrote. It’s what Cornell University law professor Laura Underkuffler calls “a transactional model” of corruption — simply, when an official act is exchanged for money.
Justice Stephen Breyer advanced a far more expansive view, looking at corruption as a systemic problem closely linked to the aggregation of wealth in politics, Ms. Underkuffler, author of “Captured by Evil: The Idea of Corruption in Law,” told Law Blog.
“It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself,” wrote Justice Breyer.
To critics of that camp, such notions about perfecting our democracy are well-intentioned but risk reaching too far. “What you’re objecting to is that somebody is too influential,” New York University law professor James Jacobs told Law Blog.
Fordham University law professor Zephyr Teachout disagrees. She says that by approaching corruption as a “criminal law concern instead of a foundational democratic concern,” Justice Roberts is considering just one piece of the problem.
It’s not that America has just started thinking about this. The Founding Fathers “were acutely aware of corruption,” says Ms. Underkuffler. But back then, the fear wasn’t the rich pulling strings, but individuals in power sacrificing the public good in pursuit of their own selfish aims, she said.
The idea of controlling corruption through prophylactic limits on contributions — controlling the political process itself — took hold in post-Watergate America, she said.
Wednesday’s ruling was a sequel to the Supreme Court’s landmark campaign-finance decision from 1976, Buckley v. Valeo.
In that case, the justices met somewhere in the middle on the issue of corruption. Sounding like Justice Roberts, the majority agonized over quid pro quo arrangements weakening democracy. But the opinion included passages that could have been written by Justice Breyer.
“Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions,” said the Buckley opinion.
Justice Roberts and the four other justices who joined him on Wednesday latched on to one part of Buckley but jettisoned the other, said Ms. Underkuffler.
“It is fair to say, as Justice Stevens has, ‘that we have not always spoken about corruption in a clear or consistent voice,’ ” Justice Roberts wrote.