Applying Citizens United to ordinary corruption: with a note on Blagojevich, McDonnell, and the criminalization of politics.

• Author: Brown, George D.
• Position: Abstract through II. The Court's Jurisprudence in the Two Contexts and the Thesis That They Rest on Similar Premises B. The Supreme Court and Ordinary Corruption - Four Key Cases 3. The Hobbs Act Extortion Decisions and the Crucial Distinction Between the Electoral and Ordinary Corruption Contexts a. McCormick, p. 177-207

Abstract

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anticorruption law: one concerning constitutional issues in the prevention of corruption through campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law primarily presents issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night.

The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Citizens United v. Federal Election Commission. (2) There the Court stated that "influence" and "access " brought about through campaign support, including contributions, are not corruption. (3) The Court appeared to embrace a narrow view of what corruption is, tied closely to the concept of quid pro quo. (4)

This Article raises the question whether cases such as Citizens United and other campaign finance decisions should have generative force outside the electoral context. I contend that they should not--that preventing purchased political influence, whether generalized or particularized, is central to the federal anticorruption enterprise. The matter is presented both on a theoretical level and through examination of Supreme Court cases in what might be called the field of "ordinary corruption. " This examination yields an unclear picture. Some cases appear to be in harmony with the campaign finance decisions, raising the possibility that the Court does hold a unified view of corruption. However, the decision in Evans v. United States embraces a broad view of corruption in construing a key federal statute: the Hobbs Act. (5) Evans has had extraordinary generative force in the lower federal courts. In particular, they have diluted any requirement of specificity in the concept of quid pro quo by emphasizing the presence of a "stream of benefits " as a means of securing somewhat generalized influence with public officials. The lower courts have thus developed a body of law that furthers broad anticorruption goals while ignoring intimations of a narrow view in the campaign finance cases. It is possible, however, that a form of convergence might take place. The possibility of convergence is enhanced by the renewed strength of the "criminalization of politics" critique: the view that the Citizens United concept of politics, or something like it, extends across the political spectrum. If the Supreme Court extended the narrow view expressed in the campaign finance cases to ordinary corruption, the result could, as it has in the past, be a major ruling reining in the lower courts. The two ships would, in effect, collide.

The [Citizens United] opinion comprehensively redefined corruption, and in so doing, redefined the rules governing political life in the United States.

--Zephyr Teachout (1)

INTRODUCTION

This Article considers two important questions in federal anticorruption law. The first is whether the Supreme Court's decision in Citizens United may have generative force outside the area of campaign finance. The second question is whether analysis developed in the electoral context should extend to what I call "ordinary corruption": abuse of public office for personal gain derived from the infusion of outside resources into the governmental process. (6) The thesis of the Article is that the concept of corruption found in the campaign finance cases should be limited to those cases. Extending the analysis of Citizens United to "ordinary corruption"--in particular, the extensive federal prosecutorial efforts aimed at it outside the electoral context--would rest on faulty premises, and would have serious negative consequences for the federal anticorruption enterprise. The fact that the Supreme Court views certain forms of questionable conduct as constitutionally shielded from treatment in the electoral context does not mean that analogous forms of conduct outside that area cannot be treated as criminal. Indeed, differences in context call for differences in analysis of what corruption is. Examination of Supreme Court decisions on ordinary corruption shows that the Court has sometimes appeared to hold a unified, narrow view. However, the decision in Evans v. United States (7) embraces a broad view of corruption in construing a key federal statute: the Hobbs Act. (8)

Apart from theoretical issues and Supreme Court cases, the Article addresses at length the development of a broad approach to anticorruption statutes that has emerged in the lower courts. For these courts, Evans has emerged as the Supreme Court's major decision on ordinary corruption. They have developed the theory of a "stream of benefits" to a public official as satisfying quid pro quo requirements, even though the official's future conduct (the "quo") is uncertain, perhaps even unknown, at the time of agreement. (9)

Citizens United treated election-related "independent" expenditures by corporations and unions as protected by the First Amendment. (10) This highly controversial decision was denounced by the President in his State of the Union Address, (11) and is the subject of a proposed constitutional amendment to overturn it. (12) Yet it stands as reflecting the views of a current majority of the Court on campaign finance regulation. The same majority reaffirmed those views in 2014 in McCutcheon v. EEC. (13) At the core of these decisions is a conception of what does and does not constitute corruption within the electoral context. In Citizens United, Justice Kennedy declared that "[f]avoritism and influence are not ... avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies." (14) Thus, "[i]ngratiation and access ... are not corruption." (15) For the majority, Congress's ability to criminalize conduct in the area of campaign finance is limited to reaching quid pro quo corruption, narrowly defined, or its appearance. (16)

Might, or should, the case have generative force outside the electoral context? This is an important question. There exists outside of the electoral context a substantial body of federal anticorruption law, based on a group of interrelated statutes and decisions interpreting them. (17) Prosecuting political corruption is a significant part of the Department of Justice's role. A recent study in the Public Administration Review states that between 1976 and 2008, "[m]ore than 25,000 public officials were convicted of corruption charges." (18) Those accused of ordinary corruption can include administrators, (19) elected executive officials, (20) and even legislators when acting outside the protection of political campaigns. (21)

These cases (and the statutes upon which they rest) are the cornerstone of federal anticorruption law. Some aspects of this body of law seem to reach conduct that Citizens United endorses: seeking, for example, access, ingratiation, and influence. (22) One can discern in the statutes an underlying theme of biased decisionmaking as the essence of corruption. (23) Yet the cases rarely contain any discussion of what corruption is. (24) Thus ordinary anticorruption law seems bereft of an animating concept of the nature of corruption, while the campaign finance cases consider the issue in depth, frequently featuring extensive debates among Supreme Court Justices. (25) It is almost as if the legal system contained two distinct bodies of federal anticorruption law: one dealing with the electoral system, and one dealing with what I refer to as ordinary corruption. (26) Not only do we see two different approaches, we also see an extensive consideration of the nature of corruption alongside an apparent lack of concern with what is wrong with the conduct that has been criminalized. The two bodies of law exist in near-total ignorance of each other, like two ships passing in the night. Both deal with "corruption," but neither looks to the other for guidance as to the meaning of that elusive term.

A quick response to any analytical problems with this difference is that the two bodies of law present questions that are quite different. Ordinary corruption cases are simply matters of statutory interpretation. The campaign finance cases, on the other hand, require an in-depth examination of the nature of corruption because preventing it (or its appearance) is a government interest that justifies restrictions on activities otherwise protected by the First Amendment. This has been the law since the fundamental case of Buckley v. Valeo. (27) Yet the response seems too facile. An inquiry into a particular problem of corruption can often be helped by looking at the body of law that regulates the subject in general. For example, the Court in Buckley did look briefly at general anticorruption law, but only to dismiss it as insufficient to deal with the dangers of corruption in the electoral context. (28)

As for statutory interpretation, it is often more than a mechanical exercise. Legislative purpose, the legislative framework, and background understandings play a role as well. (29) A statute forbidding "'extortion' ... under color of official right" (30) is obviously an attempt by Congress to deal with corruption. Since the statute is open to a range of interpretations, (31) why not look at what the Supreme Court has said corruption is?

Citizens United--as reaffirmed in McCutcheon--represents the Court's most recent in-depth treatment of corruption and...