Does the First Amendment Protect Payment for Access?

 As many readers of this blog know, U.S. law on whether (or when) campaign donations can be proscribed by criminal anticorruption statutes is quite complicated, and to some degree unsettled. On the one hand, the Supreme Court has held that campaign contributions are constitutionally protected “speech” under the First Amendment of the U.S. Constitution. On the other hand, U.S. criminal law can and does prohibit campaign donations that are the “quid” in a classic quid pro quo bribery transaction. In other words, it would unconstitutional for the U.S. to prohibit campaign donations to politicians even if such a prohibition is motivated by the generalized worry that politicians might show special solicitude to the interests of their big donors. But it is perfectly constitutional for Congress to prohibit quid pro quo transactions in which a private interest offers a campaign donation as the “quid” in exchange for some “quo.”

It remains an open question, however, what can qualify as the “quo.” Certainly passing legislation, directing federal funding, and securing special regulatory benefits and exceptions would suffice. But what about mere access — an understanding between the donor and elected official that a campaign contribution will get the donor special access to the official? Two recent Supreme Court opinions — Citizens United v. FEC and McCutcheon v. FEC — contain language suggesting that it might be unconstitutional for U.S. law to prohibit an explicit quid pro quo agreement in which a politician offers access in exchange for campaign contributions. According to Citizens United, “[i]ngratiation and access . . . are not corruption,” while McCutcheon cautioned that “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies or the political access such support may afford” (emphasis added).

Despite this suggestive language, the Supreme Court has not yet had to confront head-on the question of whether the First Amendment protects quid pro quo payment-for-access. The closest it came was last year in United States v. McDonnell (discussed on the blog here, here, and here). In that case, Governor McDonnell helped to arrange meetings between businessman Jonnie Williams and government officials, and accepted personal gifts from Mr. Williams in exchange. By a vote of 7-0, the McDonnell Court reversed the governor’s conviction and construed the federal bribery statute at issue not to cover the governor’s conduct.

But this doesn’t resolve the constitutional question. McDonnell turned on the construction of the existing federal anti-bribery statute, which requires that the “quo” be an “official act,” which the Court construed narrowly as excluding provision of mere access. Moreover, McDonnell was not a First Amendment case, as the alleged bribes were not campaign contributions. Nonetheless, the Court did discuss the concept of corruption in a manner reminiscent of its opinions in Citizens United and McCutcheon. According to McDonnell: “[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. . . . The Government’s position [that McDonnell violated the law] could cast a pall of potential prosecution over these relationships if [a donor] had given a campaign contribution in the past . . . . Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.” Furthermore, McCutcheon — which was a First Amendment case — defined the sort of corruption that could justify restrictions on campaign donations as “a direct exchange of an official act for money” (emphasis added), which might imply that, at least in the campaign donation context, McDonnell’s reading of the anti-bribery statute is constitutionally required.

But is that right? Separate from the question of whether Congress should criminalize payment-for-access, and from the question of whether Congress has in fact done so in the existing federal anti-bribery statutes, is the question of whether Congress could criminally proscribe payment-for-access if it wanted to. In other words, is payment-for-access constitutionally protected? Though some of the Supreme Court’s recent language has suggested such a conclusion, I believe that proposition is wrong, for three reasons:

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Williams-Yulee and Why It’s Time for America to Stop Electing Judges

For casual news fans and avid U.S. Supreme Court junkies alike, the past week’s headlines have been dominated, not surprisingly, by stories about Obergefell v. Hodges, the same-sex marriage case.  But there’s another story that emerged from the Court this week that deserves special attention in this forum:  Williams-Yulee v. Florida Bar Association. In that case — issued the day after oral argument in Obergefell — the Court once again waded into America’s longstanding but peculiar experiment with judicial elections.

For more than 150 years, the United States has stood apart from most of the world in its practice of electing judges; today, 39 U.S. states elect at least some judges and 87% of state court judges will stand for an election at some point in their careers. Why this fascination with judicial elections? Well, it can be chalked up to the populist origins of the practice — as a measure for combating corrupt patronage networks in the mid-1800s — and the belief that elections render judges more democratically accountable.

But as states like Florida have learned, judicial elections never lived up to their populist promise. In fact, there was a time, not so long ago, when corruption ruled Florida’s judiciary. The stories abound: There was the judge in the late 1960s who required lawyers to contribute to his campaign before they could argue. Even more embarrassing were the three members of the Florida Supreme Court who resigned in the early 1970s after getting caught pressuring lower courts to rule in favor of the justices’ campaign donors, allowing an interested party to ghostwrite an opinion, and enjoying a gambling spree in Las Vegas courtesy of a dog track that was litigating a case before the court. The reason for this gap between theory and practice: the need to raise campaign funds undercuts judicial integrity and invites quid pro quo corruption.

Now, Williams-Yulee turned out to be a victory for anticorruption: the Court held that Florida could bar judicial candidates from personally soliciting campaign contributions. Unfortunately, though, the victory is small and fleeting: the Court’s reasoning focused on the extremely narrow nature of the Florida rule and impliedly rejected most campaign finance restrictions in judicial elections (beyond contribution limits). So even after Williams-Yulee, states still have little in their arsenal with which to combat the evils of judicial elections. Maybe then, in an era when more and more money is flowing into judicial campaigns, Williams-Yulee ought to be our wake-up call — a sign that its time for the United States to kick the “insanely and characteristically American” habit of electing judges.

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Who Cares How Madison and Hamilton Defined “Corruption”?

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. Continue reading

More Confused & Confusing Commentary on Corruption, Earmarks, and Campaign Finance

When a prominent platform like the New York Times Op-Ed page features a piece on corruption, I feel like I should say something about it.  (Furthering the public dialogue and all that.)  But it’s hard for me to come up with something productive to say about Thomas Edsall’s rambling editorial on “The Value of Corruption,” published last week. So far as I can make out, Edsall makes three main points:

  1. The Congressional ban on legislative earmarks, intended as a means of fighting one form of perceived “corruption,” has in fact undermined one of the key tools legislators can use to build compromise and overcome gridlock.
  2. The Supreme Court’s campaign finance decisions in cases like Citizens United and McCutcheon have given wealthy interests more power to influence elections (which some characterize as “legalized corruption”).
  3. Sometimes corruption can be “good” — the “honest graft” praised and defended by George Washington Plunkitt — particularly when it helps certain excluded groups overcome barriers established by entrenched interests.

If your first reaction to this is that these points have little to do with one another — other than the fact that they all use the word “corruption” — then we’re on the same page. But instead of just trashing the Times Op-Ed page (much fun as that is), let me see if I can try to say something substantive.  Not sure if I’ll succeed — here goes: Continue reading

Quid Pro Quo: The Deus Ex Machina of Bribery Law?

In a recent post Phil spotted an apparent anomaly in U.S. anticorruption laws: these laws make it is easier to get away with bribing an American politician than a non-American one.  As Phil explains, the difference arises from what seems to be the higher burden the prosecution must meet to prove that what is ostensibly a campaign contribution is in reality a bribe when the recipient is an American politician rather than a non-U.S. officeholder.

When the payment is to an American politician, the prosecution must, in the words of McCutcheon v. FEC, the Supreme Court’s most recent decision interpreting the Federal Election Campaign Act, prove “quid pro quo corruption,” which the Court defines as “a direct exchange of an official act for money.” By contrast, when the challenged payment is to a non-American office holder, the Foreign Corrupt Practices Act merely requires that the prosecution establish that the money was “corruptly” given for the purpose of “influencing any act or decision [taken in an official capacity].” Phil takes the absence of an express requirement of a quid pro quo in the FCPA as easing the prosecutor’s burden. But is Phil’s reading of the two laws correct? Continue reading

Is US Campaign Finance Law More Permissive of Corruption than the FCPA?

An odd feature of U.S. law is that it appears to impose more stringent restrictions on private donations to foreign politicians than on donations to U.S. politicians.

Consider first domestic U.S. campaign finance laws.  These laws have received a great deal of scrutiny over the last 40 years, because of the argument that restricting spending on political activities may offend the “freedom of speech” guaranteed by the First Amendment of the U.S. Constitution. The U.S. Supreme Court has issued a number of landmark decisions on this subject over the last 40 years, beginning with Buckley v. Valeo (1976), and most recently in McCutcheon v. FEC (2014) (which Matthew discussed in a post from a few months back). The dominant trend in these decisions has been a loosening of restrictions on campaign contributions and independent donations, but one specific change in the campaign finance jurisprudence is particularly interesting. In McConnell v. FEC, the Supreme Court held that “selling access” or “influence” constituted a form of corruption, prevention of which could justify certain campaign finance restrictions. In Citizens United v. FEC, the Court, in an opinion by Justice Kennedy (citing to his dissent in McConnell), narrowed the definition of corruption “to quid pro quo corruption,” and held the “fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”

Now consider the main U.S. statute that addresses payments to foreign officials (as well as foreign candidates for public office): the Foreign Corrupt Practices Act (FCPA). In contrast to the campaign finance area, there is very little case law clarifying the meaning of the FCPA’s provisions (a fact that some commentators have lamented). Nonetheless, the FCPA’s prohibition on “corruptly” giving “anything of value” to a foreign official or foreign candidate for public office for the purpose of “influencing any act or decision [taken in an official capacity]” does not require an express quid pro quo, (see 15 U.S.C. § 78dd-1(a)(2)(A)(i)).

Thus it appears that payments (including campaign donations or other forms of political support) that are intended to influence politicians’ official decisions are proper (indeed, constitutionally protected) if made in the U.S., but improper (indeed, criminal) if made in other countries.

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McCutcheon v. FEC Is a Substantive Clash, Not a Definitional One

The U.S. Supreme Court’s decision last week in McCutcheon v. Federal Election Commission – which struck down limits on the aggregate amount any one individual could contribute to multiple candidates during a single electoral cycle – has attracted a great deal of attention.  Indeed, it has already generated so much discussion that I’m not sure I have much to add (particularly given that I’m not a campaign finance expert). But one piece of commentary on the decision caught my eye: on the Wall Street Journal’s blog, Jacob Gershman argues that McCutcheon is not just about the clash over the value of political speech and the effect of money on political integrity, but “at a more basic level” the decision is about “how to define the concept of ‘corruption.’”  Many of my colleagues in the legal academy – several of whom are quoted in Mr. Gershman’s post – agree with that assessment, as does Justice Breyer in his dissenting opinion in McCutcheon.  But I don’t think it’s quite right—or at least it’s only partly right.

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