We’ve had a few posts in recent weeks on Fordham Law Professor Zephyr Teachout’s ultimately unsuccessful, but surprisingly effective, campaign for the New York governorship (see here and here). Teachout’s campaign has had the side effect of increasing the attention to her scholarly work, most notably her recent book Corruption in America. Rick has already posted a more general discussion of Teachout’s major thesis regarding the allegedly corrupting effects of money on American democracy (and a follow-up yesterday). I want to touch on a somewhat narrower point, but one that has attracted a great deal of attention: Teachout’s claim that the people who framed and ratified the U.S. Constitution had a much broader understanding of the meaning of “corruption” than is reflected in contemporary U.S. Supreme Court decisions on campaign finance. (I should acknowledge up front that I have not yet had the opportunity to read Teachout’s book, though I have read her earlier article making substantially the same point, as well as an excerpt from the book posted online.)
The basic argument, which Teachout persuasively documents, is that for the founding generation — including leading members like James Madison, Benjamin Franklin, Alexander Hamilton, George Mason, and others — the term “corruption” had a much broader meaning than the exchange of money or other material benefits for official acts; the term instead included an institution’s “improper dependence” on some outside party. My colleague Larry Lessig made this argument the basis of an amicus brief he submitted to the Supreme Court in the McCutcheon case. In his post discussing the brief, Lessig asserts that the evidence of how the term corruption was used in the Founding generation “suggest that only a non-originalist could support the idea that ‘corruption’ refers to ‘quid pro quo’ corruption alone.”
I’m not sure I can improve on Jill Lapore‘s assessment of Teachout and Lessig’s evidence about the historical usage of corruption: “This isn’t uninteresting, but it’s not especially helpful, either.” I agree wholeheartedly. At the risk of belaboring the issue (about which I’ve written before, in the context of the McCutcheon case), let me say a bit more about why I think the evidence that Madison, Hamilton, and other members of the Founding generation used “corruption” in a broader sense is (mostly) irrelevant to contemporary discussions of campaign finance and other issues.
Here’s the thing: The term “corruption” does not appear in the Constitution at all (save in an unrelated provision of Article 3, Section 3 concerning the archaic punishment of “corruption of blood“). The reason we’re talking about the meaning of “corruption” in the campaign finance context is because the Supreme Court held in Buckley v. Valeo that although campaign spending was protected by the First Amendment, the prevention of “corruption” (or the appearance of corruption) was nonetheless a sufficiently strong government interest to justify some limitations on election spending. Buckley was decided in 1976. There is no evidence — and no reason to suspect — that the Buckley opinion used the term “corruption” in the broader sense prevalent in the Founding period. Now, there is a legitimate interpretive dispute about what in fact the Buckley Court meant when it used the term “corruption,” and there’s an even more important policy/legal dispute about what sorts of activities or relationships are sufficiently problematic (or “corrupt”) to justify limitations on what the Court has determined to be protected speech. But neither of those questions is helpfully addressed by documenting how Hamilton, Madison, Franklin, and other 17th-century luminaries used the term “corruption.”
So when Lessig says that “only a non-originalist” could support the idea that only the prevention of quid pro quo corruption — rather than the prevention of “improper dependency” corruption — justifies limitations on political speech, I have to say that, with all appropriate respect, I have no idea what he’s talking about. If the First Amendment itself said something like “Congress shall make no law abridging the freedom of speech, unless necessary to prevent corruption,” then his statement would make sense–if that were the case, than an originalist interpreter would want to know what the framers and ratifiers meant by the term “corruption.” But in the absence of such language, assertions about the original meaning of a non-constitutional term seem wholly irrelevant to the contemporary debate.
The broader point here is the seemingly trivial, even banal point that the meaning of language changes over time, and indeed the same word or phrase can have a range of different meanings depending on context. Forget about 200+ years ago: Today, it’s still the case that the term “corruption” sometimes is used very broadly (much as Madison and Hamilton used the phrase), and it’s also sometimes used much more narrowly. We don’t make much progress, in my view, by trying to demarcate the proper definitional boundaries of terms like this.
Now, Teachout and Lessig are not only making a historical argument. They are also making a political and legal argument: They think that certain practices that are currently seen as acceptable (though perhaps tawdry or shady) should be characterized as corrupt (and, by so labeling them, delegitimatize and de-normalize those practices). They also think that as a matter of Constitutional law, broader restrictions on campaign spending ought to be permitted because such limits serve the compelling government interest of preventing “corruption” in their broader sense. Those are both plausible, coherent, and important arguments. But neither argument depends on, or is in any way substantially aided by, claims about historical usage of the term corruption.