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Defining Corruption: From the Framers to the Supreme Court’s Decision in Citizens United (Part I of II)

One of the more esoteric debates among legal scholars focuses on defining corruption and the political roots of anti-corruption efforts.  As it turns out, scholars have pointed to the Framers debate and provisions in the U.S. Constitution to support the idea that in creating the United States government, the Framers were significantly concerned about the pernicious effects of corruption on government.

The debate on corruption continues today – from regulating political donations to gifts, benefits and campaign contributions and to improper private benefits flowing to government officials.  Some even argue that our current campaign finance and lobbying regulations have legalized corruption in which donors are able to acquire political benefits based on the size of their donations.  Common sense supports this idea and no one really contends that campaign donations and other benefits given through contributions, political action committees and other forms of financial activity do not influence politicians.  The public knows and understands this connection and has grown to accept it, while reserving condemnation for those egregious cases.

In reviewing campaign finance laws, the Supreme Court has struggled with the definition of corruption for years.  At bottom, the conservative majority has adopted what is called a quid-pro-quo definition: meaning do campaign contributions which are protected by the First Amendment cross the line into quid-pro-quo arrangements for political benefits for the large and rich donors.  A majority of the Supreme Court has rejected such concerns against a broader definition from a minority of justices who contend that the current system is clearly defined by quid-pro-quo, and is even worse because the system leads to a political system that is controlled and managed by and for the rich donor class.

By narrowly defining the question to the quid-pro-quo focus, the Supreme Court has excluded the gratitude and influence that large donors have with members of Congress. Under such a strict standard, the Supreme Court has determined that independent contributions to candidates do not create a risk of quid-pro-quo corruption.

The debate over the definition of corruption has significant consequences concerning campaign finance reform.  Going back to 1976, the Supreme Court recognized in Buckley v. Valeo (here) that Congress has extensive power to regulate campaign donations to federal candidates in order to prevent corruption.  Since then, however, the Supreme Court has held that Congress has less power to restrict political expenditures (as opposed to donations) by groups and individuals that are independent of candidates.  Under such a definition, it is hard to enforce and maintain the distinction between “independent” expenditures and those that are closely aligned with candidates.  As a result, the so-called “independent” expenditures have become a vehicle for large donors to exercise their influence to benefit a specific candidate.

The narrow definition of corruption, which has been advanced by a majority on the Supreme Court, was embraced in the Citizens United v. FEC.  (Here).  Some of the conservative justices want to move even further and over turn Buckley and fully deregulate campaign donations and expenditures.  Since Citizens United, the conservative majority has opened the floodgates to massive spending by corporations and wealthy individuals.  This so-called “black” money has been difficult to monitor since at the same time disclosure laws have been weakened.  This phenomena has resulted in an odd twist – conservatives argued for elimination of restrictions on campaign spending and argued that transparency would constrain improper expenditures.  Unfortunately, with the weakening of disclosure laws, the absence of transparency has exacerbated the amount of “dark” money spent on campaigns.

In the early stages of the 2016 presidential campaign, 158 of the richest families contributed $176 million to Republican and Democrat candidates.  This so-called donor class was interested in rolling back regulations, cutting taxes and benefiting their large business interests.

The Framers recognized that corruption was a threat to democracy and to the new government.  To address this, the Framers built in separation of powers and included a large representative body, the House, recognizing that corruption and use of public power for private interests would be much more difficult in such a large, representative chamber.  The Framers were also concerned about the corrupting effects of the perks of office, which led to the Ineligibility Clause (bars incumbent members of Congress to hold a federal government office while serving in Congress and bars executive and judicial branch members from serving in the US House or Senate), the Emoluments Clause and the Foreign Gifts Clause.  At bottom, the Framers were focused on preventing corruption which was defined as use of public office primarily to serve his or her own private ends.

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