The concept of corruption in campaign finance law.

• Author: Burke, Thomas F.

In Buckley vs. Valeo,(1) the Supreme Court put the concept of corruption at the center of campaign finance law. The Court held that only society,s interest in preventing "corruption and the appearance of corruption" outweighed the limits on free expression created by restrictions on campaign contributions and expenditures. Other goals, such as equalizing the influence of citizens over elections, limiting the influence of money in electoral politics, or creating more competitive elections, were rejected as insufficiently compelling to justify regulating political speech.(2) The Court's focus on corruption has been reiterated in a series of cases following Buckley, which have decided whether various provisions of the Federal Election Campaign Act, or local laws, violate the First Amendment.(3) Barring a major shift in this area of law, corruption is the criterion by which the constitutionality of further reforms in campaign finance regulation will be measured.

The Court's emphasis on "corruption and the appearance of corruption" has stimulated criticism on several fronts. From the left, the Court is criticized for not giving credence to other interests served by campaign finance regulation.(4) From the right comes the criticism that the Court has been inconsistent in its application of the corruption standard.(5) Others find the problem in the term "corruption" itself. Frank Sorauf argues that while the phrase "has a ring that most Americans will like ... its apparent clarity is deceptive, and its origin is at best clouded."(6) Yet whatever its flaws, politicians, activists, judges and even picky academics continually employ the concept of corruption in their claims about the campaign finance system. I hope in this article to give some sense of both the possibilities and the limits of understanding campaign finance as an issue of corruption.

The first part of the article briefly considers the concept of corruption and the ways in which academic commentators have explored it. The second part analyzes how "corruption" has been employed in a series of Supreme Court cases beginning with Buckley. Finally, the third part defends what I call the "monetary influence" standard of corruption as the most appropriate one to use in controversies over campaign finance. This defense turns out to be a rather complex enterprise; it requires a turn back to the foundations of representative democracy. Any adequate standard of corruption, I argue, must be grounded in a convincing theory of representation.

1. THE CONCEPT OF CORRUPTION

   Even the dictionary definitions of corruption suggest that it is a tricky term. The Oxford English Dictionary gives nine basic definitions of corruption, but there is an element common to all: a notion that something pure, or natural, or ordered has decayed or become degraded. Corruption was used in medieval times to denote physical processes such as infection or decomposition.(7) When corruption is proclaimed in political life it presumes some ideal state. Corruption is thus a loaded term: you cannot can something corrupt without an implicit reference to some ideal. In order to employ the concept of corruption in the context of a political controversy, such as that over campaign finance, one must have some underlying notion of the pure, original or natural state of the body politic.

   Not surprisingly, then, academics have had difficulty arriving at satisfactory criteria for deciding what is corrupt. James Scott divides attempts into three approaches: legal norms, public opinion, and the public interest.(8) A legal norms approach focuses on the laws and formal rules of a given society in determining what is corrupt and what is not.(9) While such an approach may be useful in comparative research, it seems unlikely that it can help us in a discussion of a legal controversy.(10) After all, we can't very well refer to the rules of our society when the issue is what those rules should be.

   The public opinion approach is similarly problematic.(11) It may seem sensible to define what is corrupt by finding out what most people in a given society consider corrupt, but on most of the interesting questions public opinion is likely to be ambiguous. As Scott points out, there is no clear, non-arbitrary way to decide what level of social consensus is necessary before we declare a given act corrupt.(12) Should a mere majority be sufficient, or should unanimity be required? Should the opinions of the more educated, those better informed, or those more interested in politics, be given more weight? Public opinion will always be an unsteady guide except in the easy cases.

   Finally there is the public interest approach, which involves defining some ideal against which corrupt conduct can be measured. This approach merely gauges what is corrupt in terms of an even more contested concept, the "public interest." Political scientists, who have given the most thought to the concept of corruption, have had trouble even agreeing that there is some such thing as the public interest, much less defining what that interest involves.(13) Thus all three approaches have serious problems.

   Fortunately, for the purposes of this article I need not pretend that there is some unifying, global criterion of corruption. Rather, my task is to give some sense to the term as it is used in the discussion of campaign finance law. Yet even in this more limited realm it is hard to see where we are to draw our standards from.

2. CORRUPTION AND THE CAMPAIGN

   FINANCE CASES

   Buckley and its progeny are complex, confusing cases. At times even passages in a single opinion seem to contradict each other. Thus it is no surprise that commentators have differed in their interpretation of the Court's treatment of corruption. Lillian BeVier, writing in 1985 concludes that under the Court's rulings the "only activity that may become the target of corruption-preventing legislation is that of securing or attempting to secure `political quid pro quos from current and potential officeholders."(14) By this criterion, only pre-arranged deals -- trades of votes for money -- qualify legally as corrupt. Paul Edwards further develops the quid pro quo standard of corruption and claims that with Austin the Court made a "dramatic change" in its approach by veering away from this limited definition of corruption to a much broader one, influenced perhaps by Rawlsian liberalism.(15) Frank Sorauf, by contrast, finds hints even in the earlier cases that the Court's concerns went beyond pure quid pro quos.(16)

   While quid pro quo is no doubt a major theme in the campaign finance cases, I think Sorauf is right to suggest that the Court went well beyond this standard even before Austin. In the series of cases beginning with Buckley and ending with Austin, three distinct standards of corruption that are advanced, though at several points the Court blurs them. I label them quid pro quo, monetary influence, and distortion.

   The quid pro quo standard is simply that it is corrupt for an officeholder to take money in exchange for some action. The money may be a bribe for personal use or a campaign contribution. The deal is explicit, with both sides acknowledging that a trade is being made.

   The monetary influence standard is broader. Here the root idea is that it is corrupt for officeholders to perform their public duties with monetary considerations in mind. The influence of money is corrupting under this standard even if no explicit deal is made.

   The third standard of corruption is distortion. The ideal behind this standard is that the decisions of officeholders should closely reflect the views of the public. Campaign contributions are corrupting to the extent that they do not reflect the balance of public opinion and thus distort policymaking through their influence on elections.

   The three standards of corruption -- quid pro quo, monetary influence and distortion -- have been jumbled together in the corpus of campaign finance law.

   Quid Pro Quo Versus Monetary Influence

   In Buckley, the Court struck down limitations on campaign expenditures, but upheld contribution limits. Contributions, the Court said, were less speech-like than expenditures and thus deserved lesser protection.(17) But contributions are also more regulatable because they, unlike expenditures, can be a source of corruption by influencing the conduct of representatives. While the Court at first emphasizes the danger of quid pro quo in discussing the problem of corruption,(18) it also notes that the state's interest goes beyond mere bribery: "But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action."(19) This pattern is repeated in succeeding cases. The Court mentions the quid pro quo standard, but also suggests that corruption goes beyond pre-arranged trading of votes for contributions. Here the Court is hinting at the monetary influence standard.

   In National Bank of Boston v. Bellotti,(20) the Court struck down a Massachusetts law forbidding corporations and banks from spending money in referenda campaigns.(21) The Court followed Buckley in reasoning that while the First Amendment interest in such independent expenditures is high, there is no threat of corruption because in referenda elections there is no candidate to corrupt. In a footnote the majority opinion distinguished the Massachusetts law from the longstanding Federal Corrupt Practices Act, which bars corporate spending in candidate elections:

   The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. The importance of the governmental interest in preventing this occurrence has never been doubted.(22)

   Here again the Court seems to go beyond the concern about quid pro quo vote-trading, this time to characterize...