Defining corruption and constitutionalizing democracy.

• Author: Hellman, Deborah

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more foundational issue: Should the Court define corruption at all?

This Article argues that it should not. Corruption is a derivative concept, which means that it depends on a theory of the institution involved. In order to define corruption of an official or institution, one needs an account of how the official ought to act or how the institution ought to function. Defining legislative corruption, therefore, requires a theory of the legislator's role in a well-functioning democracy. The Supreme Court's campaign finance case law has ignored the implications of this widely shared and deceptively simple idea.

Drawing an analogy to apportionment and gerrymandering cases, this Article argues that there are important reasons for the Court to defer to legislative judgment about how best to conceive of a legislator's role in our democracy. Those cases counsel that where both individual rights and questions of democratic theory are at issue, the Court should be cautious about whether judicial intervention is appropriate. Just as the Court is hesitant to define good government, so too it should be reluctant to define corruption.

TABLE OF CONTENTS INTRODUCTION I. CORRUPTION IS A DERIVATIVE CONCEPT A. In Theory B. In Practice 1. Corruption as the Deformation of Judgment 2. Corruption as the Distortion of Influence 3. Corruption as the Sale of Favors 4. Permutations II. DEFINING DEMOCRACY A. The Republican Guarantee Clause B. The Equal Protection Clause C. Implications for Campaign Finance Doctrine III. THE COURT'S ROLE REEXAMINED: OBJECTIONS AND REPLIES A. Safeguarding Process B. Defining Rights C. Rights and Burdens CONCLUSION INTRODUCTION

The main front in the battle over the constitutionality of campaign finance laws has long focused on defining corruption. (1) Ever since the Supreme Court decided that restrictions on the right to spend and give money in connection with elections should be treated as restrictions on speech, yet held out the possibility that such restrictions were permissible if designed to avoid corruption or its appearance, (2) defining corruption has been the central issue in campaign finance cases. This has been a mistake. While the Court has vacillated between expansive and restrictive conceptions of corruption, (3) it has missed the significance of the fact that defining legislative corruption entangles the Court in defining the legislator's role in our democracy. This is a task the Court should be hesitant to take up.

Yet the Court has not been hesitant at all. Instead, the Court has addressed the issue with gusto. For instance, the Court's most recent campaign finance cases precisely define corruption. In Citizens United v. FEC, the Court asserted that corruption is "limited to quid pro quo corruption" (4) and explicitly emphasized that "[i]ngratiation and access, in any event, are not corruption." (5) In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, decided in 2011, the Court struck down an Arizona law because it found that the burden on speech was not justified by the need to avoid corruption, as the Court defined it. (6) For the Court, corruption included only the exchange of money for votes or favors. (7) As a result, the Court invalidated the law under which both candidate spending of his own money and uncoordinated spending triggered the allocation of matching funds that the state provided. Neither type of spending can lead to quid pro quo corruption, since a candidate cannot sell votes to himself, and uncoordinated spending by outside groups--if truly independent--cannot be the basis of a quid pro quo deal. Consequently, neither type of spending can lead to corruption as the Court defined it. (8)

There are, however, other ways to understand corruption. A legislator who decides how to vote based on a calculation of the likely effect that taking a particular position will have on his ability to raise funds could be considered corrupt. (9) A legislator who weighs the preferences of wealthy constituents more heavily than poor constituents could be considered corrupt. (10) If corruption were defined in either of these ways, such a definition would justify a matching-fund law designed to encourage candidates to take public funding and thereby sever the link between private money and public office.

The constitutional permissibility of most campaign finance cases has turned on how the Court understands corruption. But, as I argue, the Court should instead be hesitant to define it at all. In doctrinal areas of constitutional law outside campaign finance, the Court is appropriately cautious and modest in its efforts to define good government. For the most part, the Republican Guarantee Clause is treated as nonjusticiable. (11) Even where the Court has used the Equal Protection Clause to ensure that states provide an acceptable form of democracy, the Court has been careful. (12) Recently, for example, the Court declined to adjudicate a claim of partisan gerrymandering. (13) These cases press us to answer this question: Why refrain from constitutionalizing a view of good government in some cases (e.g., partisan gerrymandering) while asserting in others (e.g., campaign finance) that the Court knows corruption of good government when it sees it? The two are but flip sides of the same coin.

The tension between these two bodies of law derives from the fact that corruption is a derivative concept, meaning it depends on a theory of the institution or official involved. This Article explores the implications of this insight for campaign finance cases. Because defining legislative corruption requires a theory of the legislator's role in a democracy, the Court should look to other areas of constitutional law for guidance about when and whether it properly constitutionalizes theories of democracy.

A court "constitutionalizes" a theory of democracy when it treats a particular conception of democracy as constitutionally required. Apportionment and gerrymandering cases are helpful here. They suggest that there are two important concerns that courts must recognize and consider: there are individual rights issues that point toward judicial oversight and questions of democratic theory that point toward deference. (14) The recognition that theorizing corruption entails theorizing democracy suggests that our campaign finance cases are deficient in failing to air both the reasons for judicial oversight and the reasons for judicial deference.

A court that considered both the reasons for intervention and the reasons for deference in campaign finances cases, as it would in apportionment and gerrymandering cases, would be much less likely to override legislative determinations that a given law is necessary to avoid corruption. The court would look at the degree to which a campaign finance law affects the free speech right. Where the burden on free speech is not substantial, the important reasons to avoid intervening in legislative prerogatives to define the role of a legislator in a well-functioning democracy would--and should-win out.

The Court's failure to fully recognize that it defines good government when it defines corruption creates tension within constitutional law. Two cases decided in 2011--Nevada Commission on Ethics v. Carrigan (15) and Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (16)--illustrate this tension, as well as the Court's blindness to it. Tellingly, each appears to open the door to broad changes in the ability of the legislature or the people to control what they perceive as corruption--the first seeming to make such efforts dramatically easier and the second dramatically harder.

In Nevada Commission on Ethics v. Carrigan, a unanimous Supreme Court, in an opinion written by Justice Scalia, (17) upheld the ability of the Nevada legislature to ensure that its legislative process is not tainted by conflicts of interest. The Court held that voting is not an activity that the First Amendment protects, and thus state ethics rules requiring the recusal of government officials in cases of conflict of interest raise no First Amendment issue. (18) The opinion is written very broadly. The Court holds that "a legislator's vote is the commitment of his apportioned share of the legislature's power" and thus "is not personal to the legislator but belongs to the people." (19) Having no personal right to it, a legislator has no cause for complaint when it is restricted. As a result, any state legislature, and presumably Congress as well, could write ethics rules that require members to recuse themselves from voting on any piece of legislation where the ethics rules identify a conflict of interest. Such an approach could, in principle, disable legislators from voting on bills when they have received contributions from people, groups, or companies that stand to benefit from the legislation.

Despite this seeming protection of legislative prerogatives to determine the ethical standards governing its own body, an opinion issued just two months later, and decided on a five-four vote, seriously impedes a legislature's efforts to define legislative corruption for itself. In Arizona Free Enterprise Club's Freedom Club PAC, the Court struck down the matching-fund provisions of an Arizona state law that were designed to...