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.
Matthew — I generally agree with your position, with two possible caveats.
First, I believe it is somewhat misleading to suggest that the practices associated with an “institution dependence” concept of corruption “are currently seen as acceptable.” At least in my view, this phrasing, perhaps in the service of concision, conflates a lack of legal prohibition with a general belief that such conduct is actually ethically, socially, and/or politically tolerable. If 70% of Americans believe that fewer restrictions on Super PAC funding portends greater corruption — a figure taken from a 2012 Brennan Center for Justice survey — surely they are speaking in large part about the institutional dependence-type dependence that has long been Professor Lessig’s target. It is a rather small step to say that this large cross-section of American society believes that such practices are not “acceptable,” even if they are “legal.”
Second, I think there may be still be some meaningful utility to the originalist inquiry. Sure, “corruption” didn’t enter the campaign finance jurisprudence until Buckley v. Valeo. But that doesn’t mean that one cannot bolster the argument that the First Amendment’s command is flexible enough to permit state regulation of campaign finance by appealing to the framers’ view on the intersection of government and corruption. If the Court frequently turns to the founding in an effort to identify or illuminate the principles underlying our constitutional structure, quite apart from narrow definitional exercises, then there is room for such an inquiry when it comes to reconciling the First Amendment’s prohibitory language with the majoritarian fear that too much money in politics leads to “(un)acceptable” institutional dependence, or as we may wish to call it, “corruption.”
Both points are well-taken, and indeed I think I agree with both of them — though I don’t think either is inconsistent with my original argument.
With respect to the first point, I probably should have used some word other than “acceptable.” All I was trying to get across there is that describing the current role of money in U.S. politics as “corrupt” (rather than “merely” bad, unfair, distorting, etc.) is a way of turning up the rhetorical and political heat.
With respect to your second point, I guess what I would say here is that there are two different kinds of “originalist” arguments one might make:
The first is the claim that preventing “corruption” broadly defined is a core constitutional value — endorsed by the framers and embedded in the structure of the Constitution itself — and therefore should be a sufficiently compelling government interest to justify restrictions on political speech. That, I take it, is your version of the argument, and indeed it’s the argument that Teachout emphasizes in her earlier law review article. That may or may not be right, but I take no issue with that argument in my post. One could make that argument even if Buckley had never used the word corruption, and indeed even if the Framers had themselves used a different word to describe the pernicious phenomenon they wanted to stamp out.
The second argument, and the one I’m really going after in my post, goes like this: (1) Buckley says restricting political speech may be OK if the goal is to prevent “corruption”; (2) the Framers used the term corruption to describe a much broader class of improper institutional dependencies, not merely quid pro quo corruption; (3) therefore, an originalist must conclude that preventing that broader form of institutional dependence corruption justifies restrictions on political speech (and only a non-originalist could conclude otherwise). Though I haven’t yet read Teachout’s book, the excerpts I’ve seen seem to make a version of that argument, and Lessig makes it quite clearly — in both his McCutcheon amicus brief and his blog post about that brief. That’s the argument that I think is fallacious.
As long as we don’t conflate the two arguments, I’m happy to entertain some version of the first — though of course it doesn’t automatically follow that just because the founding generation was really worried about Problem X that fighting Problem X is a compelling government interest that would justify infringing other constitutionally protected rights. My main target in this post is the second argument, which I think is just incoherent on its own terms.
I agree with Jordan on both points and would add another. I think the founders’ definition of corruption can still have quite a lot of relevance to constitutional analysis of campaign finance issues. Commentators and courts to look to original understandings of broad, structural ideas – federalism, etc. – and read these understandings back into specific constitutional provisions when determining their meaning. Why should the founders’ view of corruption be any different? The founders’ definition of “corruption” can be used beyond a definitional or textual debate.
Also, after hearing Zephyr Teachout talk about her book at Harvard Law School last week, I’d note that in addition to using original understandings to make a historical, political, and legal argument, she is also using them to make a moral and rhetorical one (or at least she did so in her speech). Her agenda, particularly the agenda of her bid for governor, is at least partly to get people to pay attention to corruption as she defines it. People care about what the founders thought, and their views are an integral part of national public consciousness and identity, not to mention a source of moral authority for many. Obama’s 2012 inaugural speech started with a discussion of our “founding creed” – I think, judging from her speech alone as I haven’t read the book, that Teachout is drawing from the same well as Obama and many other politicians when she appeals to what Madison and Hamilton thought about corruption.
As I said in response to Jordan’s comments above, I think I basically agree with both of these points, though I do think it’s important to distinguish different ways that one might invoke the original understanding of “corruption” — some are more plausible than others, in my view.
You’re absolutely right that courts can and do identify broad “constitutional values” and use those values to resolve questions about the scope of other rights or powers in the constitution. (Though the practice is controversial, as you know.) It’s certainly plausible, as Teachout argued in her original law review article, that fighting corruption (broadly defined as institutional, improper-dependence corruption) might be one of those values — along with federalism, political quality, etc. That may or may not be right, and the interpretive method may or may not be sound, but that form of the argument is not the target of my criticisms in the post. Rather, I’m training my fire on a different version of the argument, which focuses on the _definition_ of corruption, and attempts (on purportedly originalist grounds) to read the Founding-era understanding of “corruption” into Buckley’s use of the term.
As for your second point, again, I very much agree that part of what’s going on is a moral and rhetorical move, not (only?) a legal-analytical move. As I noted in the post and in response to Jordan, calling these practices “corrupt” is in itself a way to turn up the rhetorical heat. On top of that, as you correctly point out, in American political culture connecting a value or agenda to the leading lights of the founding generation is itself a powerful rhetorical move. And I’m happy to understand what Teachout and others are doing in those terms — theirs is a political project, after all. But those of us who want to actually think through the issues analytically, we can and should put the founder-worship aside and figure out which sorts of government interests are sufficiently compelling to justify regulation of political speech. And that, again, is a substantive issue, not a definitional one.