Roundup: Citizens United and Public Corruption
Public corruption has occupied an interstitial space in American law, cutting across many different legal fields, including traditional criminal law, campaign finance regulation, special rules governing public officers, and First Amendment doctrine. When Citizens United was decided,1 its effects on campaign finance law were recognized immediately.2 But the decision also transformed the law on public corruption by shifting the relationship between some of the many different legal fields public corruption law straddles.3 In the years since, legal thinkers have joined in wide-ranging conversation about what “public corruption” means now and the continuing problem of its place in contemporary jurisprudence.
Zephyr Teachout’s work provides, in my view, the best starting point for grasping the stakes of this debate. In an important pre-Citizens United article, she systematically surveyed different understandings of public corruption, arguing that they fail to live up to the “anti-corruption principle” that the framers embedded in the Constitution.4 Her recently published Corruption in America extends her earlier work, and tracks the “dismember[ment]” of the Founders’ ideas on corruption across American history.5
In a recent book (and a series of working papers under his direction),6 Lawrence Lessig has tried to reclaim this founding ideal for the modern age. Building from the work of Dennis Thompson,7 Lessig’s predecessor as the director of the Edmond J. Safra Center for Ethics at Harvard, Lessig has tried to define a concept of “institutional“ or “dependence corruption“ that could serve as the foundation for a post-Citizens United public corruption jurisprudence.8
Some legal scholars think this approach is misguided. Deborah Hellman has argued that corruption is an inherently relative, political concept, which the courts should resist defining.9 Robert Post has gone further, suggesting that political corruption does not admit of a bright-line definition, and probably cannot support the jurisprudential edifices that scholars like Lessig wish to erect on it.10 Richard Hasen has similarly argued that the reconstructed concepts of “institutional” and “dependence” corruption have already been rejected by the Court.11 He worries that Robert Post’s alternative—”electoral integrity”—is no viable foundation either.12
In conclusion, Hasen laments that there is “nothing new under the sun” because Post and Lessig are offering variations on arguments that have been around for at least forty years.13 Still, the problem continues to attract interest, even outside academia. Just last year, Columbia Law School, in cooperation with the New York City Department of Investigation, launched the Center for the Advancement of Public Integrity, in part to coordinate research on public corruption and bridge anti-corruption theory and practice.14 With such new initiatives to look forward to, and given the depth and density of scholarly engagement on the question of public corruption, we can hope for a better understanding of public corruption’s meaning and boundaries in the future. Who knows—the new work may even prove Hasen wrong yet.
Preferred Citation: Noah A. Rosenblum, Roundup: Citizens United and Public Corruption, Yale L.J. (Dec. 5, 2014), http://www.yalelawjournal.org/forum/roundup-citizens-united-and-public-corruption.
See, e.g., Adam Liptak, Justices, 5-4 Reject Corporate Spending Limit, N.Y. Times, Jan. 21, 2010, http://www.nytimes.com/2010/01/22/us/politics/22scotus.html [http://perma.cc/HJV2-WHAR ] (“Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted.”).
Some contemporary commentary was sensitive to Citizens United’s public corruption implications. See, e.g., Samuel Issacharoff, The Supreme Court, 2009 Term—Comment: On Political Corruption, 124 Harv. L. Rev. 118 (2010). For a short, retrospective discussion of the effects of Citizens United on public corruption law, see Heather Gerken, The Real Problem With Citizens United: Campaign Finance, Dark Money, and Shadow Parties, 96 Marq. L. Rev. 903, 908-09 (2014).
Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 342 (2009). The article was the subject of a recent spirited online debate: see Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. Colloquy 1 (2012), http://www.law.northwestern.edu/lawreview/colloquy/2012/7/LRColl2012n7Tillman.pdf [http://perma.cc/T79F-YZ5W], and response, Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. Colloquy 30 (2012), http://www.law.northwestern.edu/lawreview/colloquy/2012/9/LRColl2012n9Teachout.pdf [http://perma.cc/PH9N-GLBL].
Lawrence Lessig, Republic Lost: How Money Corrupts Congress—and a Plan to Stop It (2011); Edmond J Safra Research Lab Working Paper Series, http://ssrn.com/link/Edmond-J-Safra-Research-Lab.html [http://perma.cc/BAY4-THV7].
Dennis F Thompson, Ethics in Congress: From Individual to Institutional Corruption (1995); see also Dennis F. Thompson, “Two Concepts of Corruption,” (Edmond J. Safra Center, Working Paper No. 16, 2013), http://ssrn.com/abstract=2304419 [http://perma.cc/HVJ7-MXQF].
For “institutional corruption,” see Lawrence Lessig, “Institutional Corruptions,” (Edmond J. Safra Center, Working Paper No. 1, 2013) http://ssrn.com/abstract=2233582 [http://perma.cc/TJB9-B6SC]. For “dependence corruption,” see Lawrence Lessig, A Reply to Professor Hasen, 126 Harv. L. Rev. F. 61 (2013), http://www.harvardlawreview.org/wp-content/uploads/pdfs/forvol126_lessig.pdf [http://perma.cc/8JT2-GQXD]. For a discussion of the relationship between the two, see Lessig, supra note 6, at 328 n.5. Lessig has been prolific in his advocacy and scholarship. For his most recent formulation of “dependence corruption,” including a discussion of its jurisprudential effects, see his 2013 Jorde Symposium lecture, published as Lawrence Lessig, What an Originalist Would Understand “Corruption” to Mean, 102 Cal. L. Rev. 1 (2014). His February, 2013 “Lesterland” TED talk makes similar arguments in accessible fashion, and can be watched online: http://www.ted.com/talks/lawrence_lessig_we_the_people_and_the_republic_we_must_reclaim [http://perma.cc/58YU-DQQC].
Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich. L. Rev. 1385 (2012). Jacob Eisler, in a related vein, has suggested that conceptions of public corruption can be institutionally dependent, leading Congress and the courts to different conceptualizations. Jacob Eisler, The Unspoken Institutional Battle Over Anticorruption: Citizens United, Honest Services, and the Legislative-Judicial Divide, 9 First Amend. L. Rev. 363 (2010).
Robert C Post, Citizens Divided: Campaign Finance Reform and the Constitution, 51-59 (2014). Post’s Tanner Lectures, on which his book is based, can be listened to online, at http://mahindrahumanities.fas.harvard.edu/content/representative-democracy [http://perma.cc/CH2U-WFCC].
Richard L. Hasen, “Electoral Integrity,” “Dependence Corruption,” and What’s New Under the Sun, 89 N.Y.U. L. Rev. Online 87 (October 2014), http://www.nyulawreview.org/issues/volume-89-online-symposium/response-electoral-integrity-dependence-corruption-and-whats-new [http://perma.cc/F5HT-MMEJ].
For more information, see the Center’s website, Ctr. for Adv’t of Pub. Int., About CAPI, Col. L. Sch., http://web.law.columbia.edu/public-integrity/about [http://perma.cc/CU22-WZW2].