When working to rebuild campaign finance doctrine for the work of reform, scholars and judges face the problem that the First Amendment lies heavy on the constitutional scale.  The government can assert an interest—in regulating corruption—but it is balanced against rights and time and again proves too light. The Supreme Court has attacked this difficulty, when so inclined, by quarrelling over the definition of corruption, with a majority occasionally forming, as in the McConnell v. FEC, to upgrade “corruption” to a more muscular “interest” capable of better holding its own. Justice Breyer, going a different way, famously insists that constitutional interests are found on both sides of the scale, but his notion of Active Liberty has never surmounted its own vagueness (among other weaknesses).

     In an article now appearing in the Cornell Law Review, Zephyr Teachout, Visiting Assistant Professor at Duke Law School, argues that the courts have stripped “corruption” of its legitimate constitutional dimension and left it largely defenseless, a mere “interest” of uncertain content. Zephyr Teachout, "The Anti-Corruption Principle," 94 Cornell L. Rev. 341 (2009).  One would say that she is digging in the same field as Breyer, searching for stronger constitutional supports for regulation. What she finds is far more interesting, however. 

     The practical question—will her theoretical construct prove serviceable?—is one she answers only sketchily, but this is an argument for another day.  In this article, and in a book to follow next year, she is issuing a challenge to reconceive the constitutional ground of campaign finance regulation.

     What Teachout endeavors to do is to locate in the Framers’ debate and their chosen design for the Constitution a preoccupation with staving off “corruption”.  “If liberty was the warp of the political ideology of the era, corruption was the weft”.  Id. at 352.  It was a “general shared understanding” among delegates to the Constitutional Convention, id. at 373, that corruption was “an attitude toward public service”, the “self-serving use of public power for private ends”.  It was not a problem only of the conduct of officials:  citizenship, too, was a public office, in the sense that “non-elected citizens wielding or attempting to influence public power can be corrupt”.   Id. at 373-374. 

     This version of corruption is moral, not to be legalistically reduced to the quid pro quo focus of the criminal law.  It could be described as a dangerous failure of public-spiritedness among officials and citizens alike. She argues that its original meaning has been preserved in popular political understandings.  “Thus, Jack Abramoff himself is considered corrupt, and not merely those members of Congress he corrupted.”  Id. at 379.  This is “obvious to the modern public, which continues to use corruption in a moral sense.”  Id. at 374, n.161.

     Throughout the Constitution, Teachout argues, the Framers applied this understanding to choices made about basic architecture.  They constructed their bulwarks against corruption much as they administered their conception of “separation of powers”.  Corruption is a constitutional “principle" that guided the Framers in assigning sizes and roles to the Houses of the legislative branch, in providing for regular elections, and in allocating authority among all branches.  It is reflected more specifically in different Clauses, like the Emolument, Ineligibility and Foreign Gift Clauses, which concern themselves with specific instances where self-interest could contaminate if not overwhelm public-spiritedness.

     Over time, however, this vigorous conception has been lost, and the Supreme Court’s treatment of it, particularly in Buckley v. Valeo, suffocated it in quid pro quo legalism.  Buckley “does not ground the conception of corruption in constitutional history”, and it does what Teachout most criticizes, “introduc[ing] the idea that corruption and quid pro quo might be interchangeable”.  Id. at 385.   In the following decades, the Court batted this back and forth: in McConnell, the tight element of illicit exchange was slightly relaxed, to a standard of “undue influence”, while in Wisconsin Right to Life, three years later, Chief Justice Roberts re-tightened it.  Teachout sees little future in this course of interpretation: “very few laws regulating political money  will be upheld if they need to be justified as a tight-fitting response to criminal bribery and its closest kin”.  Id. at 391. 

      Of course, active in the background of these arguments have been other approaches bidding for recognition.  Among these, perhaps foremost among them, is an argument for political equality, in some form, as the basis for regulatory activity.  Teachout here teases out the different types of equality argument. But “the cluster of corruption ideas that would have the most meaning for the Framers are those that deal with corruption as a loss of political integrity, and systems that predictably create moral failings for members of Congress.”  Id. at 395. These are “more than a crime, more than a variation of First Amendment concerns, more than inefficiency, and different from inequality”.  Id. at 396.

      This is Professor Teachout’s mission: to restore corruption to its rightful historical and structural significance, “an evolving standard” of practical use.  Id. at 382. She believes that “the anti-corruption principle can, at a minimum, provide a shared starting point, one grounded in history and structure.”  Id. at 409.  But how does it work?

     Teachout concludes with a hypothetical “Open the Books and Shut the Revolving Door Statute”, which would prohibit lobbyists from running for Congress or working for its Members, and compelling them to file weekly reports of their activities.  On a constitutional challenge—she imagines that the plaintiff would be a former Member embarking on a career at Patton Boggs—the Court would turn first to corruption before losing itself, as Teachout would fear, in the First Amendment. It would then more specifically “consider ” the law’s impact on “the civic incentives of prior Members of Congress”.  Id. at 409. And third and fourth in the series of steps, the Court would discuss the obligation of citizens not to take advantage of public privilege and the difference between constitutional and criminal corruption.

     And then?  Teachout stops there.  It seems that attention to this anti-corruption principle is meant to unclog thought on this subject and open it to original sources.  But the consequences are left to the reader’s imagination.  Teachout certainly implies that any consequences from the use of this principle would be wide-reaching: “The Court could use the opportunity [presented by the anti-corruption principle] to reconsider whether some campaign finance donations are themselves are a form of corruption….one might well argue that the Constitution allows Congress to make campaign donations illegal, as another form of illegal gift-giving.”  Id. at 410 at n. 302 (emphasis added).

     This is, evidently, a principle with clout, as Teachout envisions it, and questions—and doubts—naturally arise.  Among them:

     While Teachout’s argument rests on Framer intent, a central anti-corruption weapon in the constitutional armature, Presidential impeachment, does not empower Congress to act against “corruption” as an independent and specifically identified ground for removal. An initial Convention draft included the term; it was dropped in the course of revisions. “I have not been able to uncover the real reason”, writes Professor Teachout.  Id. at 367.  As her argument rests strongly on the historical record, it is not strengthened by this evidence that the Framers may have concluded that “corruption” was too vague to inform the scope of the impeachment power.  If too vague there, why not, then, too vague to take on the large mission Teachout would assign to it as “principle”?

     Closely related to this concern would be the breadth of the principle as it is indicated by Teachout.  She sees the Framers as motivated “to cultivate systems in which the structure of [the people’s] brain and their ambition would not turn to self-serving behavior.”  Id. at 381.  This is a goal apart from the more modest—and arguably more achievable—one of keeping corruptible or corrupted leaders from gaining or retaining power. If the anti-corruption principle’s function is to preserve the “virtue” of officials, id. at 380, filtering out corruptive pressures on their “brains”, this is a formidable mandate.  The state power asserted in its name could be alarmingly unbounded.  An indication of this is the suggestion that campaign donations might be outlawed altogether.

     Teachout’s article is daring in its ambition and provocative in its arguments, and it shows how, at this stage in the history of campaign finance, the search is underway for new ways of thinking about these recurring set of issues.  Having now this article, her readers will await with interest the book.

Bob Bauer