Quid Pro Con

The Supreme Court’s narrow definition of corruption threatens not just campaign finance law, but the very idea of the public good. A response to Lee Drutman.

By Zephyr Teachout

Tagged Campaign Finance

In his generous review in the previous issue of Democracy [“Bring Back Corruption!” Issue #35], Lee Drutman voices his skepticism about the objective of my book, Corruption in America: to restore corruption as a key idea in our political discourse. He argues that an essential feature of corruption—a preference for private interests instead of the public good—may contain too fundamentally contested an idea (the public good) to have any real meaning. Drutman calls it the “pesky concept of the ‘public good,’” and argues that the Supreme Court—and the polity—cannot meaningfully engage in a discussion about corruption because there isn’t sufficient agreement about what constitutes the public good.

While I agree that the meaning of the public good is contested, I disagree that it is so contested that it can’t have any constitutional meaning. Moreover, I believe that direct engagement in questions of morality in public service is essential for the Court. The Court cannot avoid political philosophy. Its current rejection of the traditional language of corruption and the public good does not save it from these difficult questions.

First, let me lay out some context. Right now, a fundamental premise of American democracy—that people are represented by those in power—is threatened by the architecture of our political campaigns. Many of those in power are not serving the public, but their own interests or those of their donors. Privately funded elections encourage lawmakers to serve private interests, because they will be more likely to be able to raise money. The revolving door between Congress and the lobbying industry—roughly half of all retiring members of Congress go on to become highly paid lobbyists—encourages lawmakers to serve their future bosses instead of their current constituents. In a state like New York, where an individual can contribute as much as $60,800 in a governor’s race, the system gives gubernatorial candidates an incentive to oblige those who can donate such large amounts or can pull together donations worth millions. The new, post-Citizens United threat of large outside attack ads by super PACs also puts pressure on lawmakers to avoid proposing legislation that might pique the funders of those super PACs.

All of these systems make it hard for lawmakers, individually and collectively, to serve the public good. This is true regardless of one’s definition of the public good. For instance, Lawmaker Alex may believe that the public good is served by keeping a cap on the number of charter schools in his state, but he knows that rich hedge-fund managers disagree with him. Those managers can fund a challenger to his campaign or can spend unlimited money on outside ads attacking him. Therefore, if he chooses to make keeping a cap part of his agenda, he would do so at an enormous cost. He is thus likely to keep silent on that issue, and instead focus on others on which he aligns—or at least doesn’t openly disagree—with wealthy, politically active donors. In short, he is constrained by the current campaign finance system from pursuing what he believes to be the public good. One doesn’t need to agree with that belief to see the constraint.

Drutman conflates two different kinds of contestation, and in so doing misunderstands the thrust of my legal argument. I’ll lay out how he does this below, but first let me explain why it matters.

The modern Supreme Court’s absurdly narrow understanding of corruption is a significant driver behind why it repeatedly strikes down laws designed to solve the problem of representation described above. The Court uses a two-step process to analyze the constitutionality of laws governing the spending of money for political ends. First, it determines whether the law in question curbs First Amendment rights. If it limits the spending of money in the political arena, then a law violates those rights by definition, because the Court sees spending money in the furtherance of speech as essentially equivalent to speech. (This is the controversial “money equals speech” doctrine of the 1976 case Buckley v. Valeo.) Second, the Court determines whether the law limiting money is nonetheless justified because it is narrowly tailored to serve anti-corruption ends. If it is, it can be upheld. But if it is not, the law must be struck down.

There are several pathologies to this system. It disregards other reasons that a legislature might have had to limit corporate spending or aggregate contribution limits. Perhaps the legislature was motivated by political equality to pass a campaign finance law! But according to the current Supreme Court, only corruption, not political equality or anything else, is a legitimate justification for passing laws related to money and politics.

The pathology I focus on—and a motivation for my writing the book—assumes that the Court will continue to use this framework or a variation of it. I wrote the book to explain that even within this framework, the Court’s definition of corruption is ahistorical and indefensible. In the traditional law of corruption, public good, or common good, is part of the antithesis of corruption. It is corrupt for an actor—or an institution—to place narrow, selfish, or group interests over the public good in the exercise of public power. This is true whether or not the action is legal. For instance, accepting shares in a stock to vote a certain way was considered corrupt in early-nineteenth-century Georgia, even though there was no law criminalizing the bribery of legislators. It was corrupt because it placed the narrow self-interest of the lawmaker ahead of the public good.

The current Supreme Court defines corruption differently. It analyzes corruption by reference to “quid pro quo” (a phrase not attached to corruption law until the 1970s), and with explicit reference to existing bribery laws. In other words, for Justice Roberts, it is not corrupt if it is not currently against criminal bribery law. In the most recent case striking down limits on aggregate donations to candidates, McCutcheon v. Federal Election Commission, Roberts actually cited a criminal law case for his definition of corruption. This is not only ahistorical but also theoretically problematic, because the definition of bribery in criminal- law cases has been limited by the due process clause, not by a belief that the sphere of bribery is small. Without a requirement of explicitness or a specific government act, any gift to a public official, including campaign donations, given with intent to influence would be covered by bribery laws. This would violate the due process clause as overly vague.

Put another way, there are two rationales for passing a campaign finance law: 1) because it will dissuade violations of the existing criminal law of bribery; and 2) because it will encourage lawmakers to serve the public good, instead of their donors. Today’s Court considers the first but not the second a legitimate reason for a legislature to pass a law that limits spending money around campaigns. Going further, the Court doesn’t even consider that the goal described in No. 2 has constitutional value. This is the essence of the Citizens United decision that has gutted our campaign finance laws.

Returning to Drutman’s argument, it is certainly fair to say that the public good is deeply contested. My point, however, is that most of the disagreements around the meaning of the public good should have no impact on whether or not a legislature can pass a reform designed to encourage service to the public good and to discourage representatives from serving narrow private interests.

Drutman argues, “[T]he public good isn’t some Platonic principle that can be divined through quiet contemplation. It can emerge only through the practice of politics, and it must constantly adapt to changing circumstances.” In these lines, he makes a process claim: What is best for the public comes out of public debate. But the kind of debate over the public good he refers to is about what policies will benefit the public interest, which is a different question from what the Court must confront in campaign finance cases: whether lawmakers can enact structural reforms enabling pursuit of the public good. I generally agree that the best public policies come out of open public debate, but that belief has no impact on the idea of publicness itself.

This is a knotty idea, so let me explain. Recall Lawmaker Alex above, and now add Lawmaker Brenda. They may have several fundamental disagreements about the public good. Unlike Alex, Brenda may believe that lifting the cap on charter schools will serve the public. In other words, they have a disagreement about the substance of a particular policy. In addition, they may have an epistemological disagreement: Alex may believe that the best way to know the public good is to consult the public, either through polls or interviews. Brenda, on the other hand, may believe that people are fairly weak judges of their individual and collective best interests, and that she should independently determine what is best for the public.

Taking this further, they may have a disagreement about the nature of the good: Alex may believe that goodness is best measured by a combination of the experience of joy and the absence of suffering, while Brenda may believe that goodness is measured by public virtue.

Finally, they may disagree about how to conceive of the “public” of the public good. Alex may bring a more traditional conception of the public good, one that imagines the public as an entity, an organism, or a nation, whereas Brenda may believe, along with much more modern theorists, that the public is merely an aggregation of its component parts.

These are all serious, interesting, important, philosophical, and practical questions with real implications for how Brenda and Alex will operate as lawmakers. However, none of these disagreements or contestations has real implications for whether or not a campaign finance law enables these lawmakers to act on their ideas—whatever they are—of the public good. In other words, the nature of the public good can be contested, but that doesn’t mean that the freedom to pursue it should be fundamentally contested. That is not to say that Alex and Brenda’s differing conceptions of the public good don’t ever interfere with their freedom to pursue it, or that their different conceptions don’t create problems with judicial review (they will), just that most such disagreements should have no impact.

In practical terms, I employ the idea of the public good as part of a traditional conception of corruption to encourage the Court to use language wisely, with full awareness of corruption’s political and historical meaning, if it is to use it at all. A Court that adopted my argument would give far greater deference to laws that enable experimentation with campaign finance systems. Judicial review of whether a statute was designed to discourage the serving of narrow ends is not mechanical or easy, but as I show in my book, it is something courts have successfully grappled with for more than 200 years, and is no more or less difficult than line-drawing around what constitutes “speech,” “equality,” “due process,” or other essential constitutional concepts.

Put another way: I believe that legislators who want to build systems that enable public-oriented lawmakers should be free to do so. There are no easy answers when it comes to the right way—or ways—to structure democratic society, but the modern Court has cramped our democratic style. If lawmakers aren’t free to build structures that serve us, the essence of democracy is threatened. In short: Yes, the meaning of the public good is contested, but our warring conceptions of it don’t usually impinge directly on the issue of corruption.

Drutman concludes that “[Teachout] just wants us to debate and discuss corruption more, to view it as a controversial issue,” but I actually have a more substantive view. An act is corrupt when private power is wielded to influence public power for private ends. A person is corrupt when his or her private interest systematically overrides public or group interest in this way. A system is corrupt when the exercise of public power is excessively purposed toward private ends, instead of the public good. Corruption is not limited to exchanges, and is not easy to describe in criminal statutes.

I believe that while we can debate whether in a particular instance private or public interests are served, these are real concepts with real meaning describing essential differences in the orientation of the spirit of those exercising power.

In the final analysis, I believe that we cannot, in fact, design great systems unless we look under the hood and ask ourselves: What will bring out a love for the public good? What will suppress the tendencies to greedy acquisition? And how can we encourage the one and discourage the other?

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Zephyr Teachout is a visiting assistant professor at Duke Law School. She was previously the National Director of the Sunlight Foundation and the Director of Online Organizing for Howard Dean's Presidential Campaign.

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