The Invention of “Classic” Quid Pro Quo Corruption

Next week in oral argument on McCutcheon v. FEC, you may hear the justices asking counsel to explain why aggregate limits on contributions serves a governmental interest in quid pro quo corruption. Quid pro quo is mentioned 14 times in McCutcheon’s brief, and 5 times in the response.

In Citizens United, Justice Kennedy used the phrase quid pro quo fourteen times. Justice Kennedy believes that the governmental interest in regulating corruption only includes regulating “what we can call the ‘quids’ in the quid pro quo formulation.” The phrase quid pro quo came to serve as a kind of redundant definitional phrase attached to the word, describing what corruption constitutes, or reinforcing that description.

Justice Thomas has scolded others for trying to separate “‘corruption’ from its quid pro quo roots.”

In Wisconsin Right to Life, Chief Justice Roberts’ announced that “the quid-pro-quo corruption interest cannot justify regulating [issue ads].”As  for any other efforts to define it, he writes, with frustration, that “enough is enough.”

Here’s the rub: quid pro quo didn’t become part of definitions of corrupt, corruption, or corruptly until the 1970s, and in many states it is still not part of the definition of any bribery, extortion, or other corruption statute. Just to take one example–I could do this with many states– the first mention of quid quo pro in the New York bribery context was in 1972, and it has been mentioned only a handful of times after that. When the elements of bribery are listed, quid pro quo is not one of them.

So while it is true that Buckley mentions quid pro quo corruption, but in doing so, it wasn’t consolidating and describing an understanding, it was creating one.

In a handful of pre-1970s cases courts used the term, but not as the essence of corruption.

Quid pro quo comes from the Latin, indicating “this for that.” Its historical usage is in contracts. It refers, in that context, to the idea of relatively equal exchange between parties. In the absence of relative equality—quid pro quo—a court might question whether there was an actual contract. It was casually and colloquially used in relationship to corruption since the 19th century at least, where writers would sometimes referred to the quid pro quo received by bribed voters, or elected officials. In those situations, quid pro quo stood in for some kind of exchange, as opposed to a gift.

Nor is there much consistently with its usage of what it means.

It has the clang and ring of specificity, but actually because its roots are contract law, not corruption law, it maps poorly onto this area–when it is used, it isn’t used for relative equality of exchange, but for one of two things: identification of a particular governmental action (as opposed to general good will), or explicitness of agreement (either through words or actions–as opposed to unexpressed intent).

The Justices are of course correct that one traditionally understood category of corruption involved exchange. But for many state and federal statutes for most of American history, there was no requirement of explicitness, or a particular governmental action (let alone relative equality) to satisfy a bribery statutes or their ilk: statutes were all over the map, but for many, all that was required was intent to influence a public official + giving a thing of value.

There are good due process reasons that those statutes have been narrowed, by interpretation and amendment, to require something more than intent + thing of value in the case of campaign donations. However, those due process reasons have to do with administrability, not with what the public has long considered corruption.

Not only is there nothing root-like or “classic” about quid pro quo, there is nothing root-like or “classic” about what it has come to mean in the nearly 40 years since its birth, fully formed as “classic” in the Supreme Court.

I don’t suspect that challenging the Justices’ attachment to quid pro quo is good strategy at this point–instead, there is good reason to argue, as the FEC does, that disabling aggregate limits will lead to a proliferation of wink-and-nod exchanges between donors and political actors.

I suspect that the term gives the Justices some sense that they are dealing with something definable, manageable, capable of putting in a box and circumscribing–using Latin sometimes gives me that feeling, too–when in fact, as many scholars have pointed out (see Ofer Raban and Rick Hasen) one cannot put corruption in a box any more than one can do the same to speech.

Like speech, it is necessarily difficult, but its difficulty does not make it any the less important.


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7 Responses

  1. Lawrence Cunningham says:

    Corruption: res ipsa loquitur! 🙂

    Welcome to the blog Zephyr.

  2. mls says:

    But the government can and does ban giving “a thing of value” to public officials if, by a “thing of value,” one means something of personal monetary value. But if one means something of political value, then it would encompass not only campaign contributions, but political endorsements, campaign volunteering, investments in a congressional district, etc.

    To give just one example, today a bunch of Wall Street bankers (including the heads of JP Morgan and Goldman Sachs) went to the WH and endorsed the President’s position on the debt ceiling and shutdown fights. These statements were of immense political value to the WH, perhaps greater than any campaign contribution they could have given. Moreover, it hardly seems unreasonable to suggest (as some observers have) that by doing this they may have hoped to influence the President on various matters, including ongoing investigations of their companies. Under your theory, would it be constitutionally permissible to ban such statements if they were motivated by an intent to influence the President?

  3. Zephyr says:

    Dear MLS–

    The definition of what constitutes corruption need not correspond with that which a state can ban. Much of what states banned on paper at least might encompass what you talked about–for (good I think) due process/vagueness reasons those statutes have largely been narrowed, especially in the campaign context.

    So do the old bribery laws, interpreted broadly to encompass what you are talking about, pass constitutional muster? I think the answer is clearly no.

    But that isn’t the question the court is facing. It is facing a different question: what is corruption in the American legal tradition? There is no reason to understand corruption in the American legal tradition as constrained by a definition that if translated into a criminal bribery law would withstand constitutional muster. (I think both Thomas and Scalia regularly make this mistake)

    All I am suggesting in THIS post is that corruption in the American legal tradition isn’t described by “quid pro quo” and isn’t described by what “quid pro quo” has come to be interpreted to mean. This is a critical post, not a description of a positive theory.

    Thanks for the comments!

  4. Brett Bellmore says:

    The definition of “corruption” is being molded in response to the decision that fears of corruption can justify overriding the 1st amendment. If that’s going to be the doctrine, that you can ban speech and the facilitation of speech based on concerns about corruption, you HAVE TO narrowly define ‘corruption’, or else the 1st amendment right to political speech becomes hollow.

    Doubtless newspaper editorials can be ‘corrupt’ in a general sense, but most people don’t want to go there with regulation, and the majority on the Court certainly isn’t willing to go there. So they can’t define corruption in an expansive manner.

  5. Zephyr Teachout says:

    Dear Brett:

    There may be other reasons–including the one you cite–for a narrow definition of corruption.

    My point in this post, however, is not inconsistent with that: it is simply that “quid pro quo corruption” is an invention, and should be recognized and explained as such, instead of recited as if it carried the weight of history.

    As to the reason you cite, moreover, your argument depends upon a pre-existing belief about the correct outcome of a court weighing two different principles. It is an outcome-driven definition, as opposed to a definition that comes either from the usual meaning of the word, its historical American meaning, or the importance of the concept in the protection of a self-governing polity. As a matter of logic it is just as coherent to reverse your sentence and say “The definition of “Free Speech” is being molded in response to fears that the “Free speech” justification can override legitimate fears of the corruption threat to government. If that’s the doctrine, then you can allow all kinds of political activity despite the fact that it fundamental erodes representative self government, you HAVE TO narrowly define “Free Speech”, or else the basic premise of self-government becomes hollow. (That, by the way, is what I think any of the founders would probably have said, given their emphasis on corruption and lack of emphasis on speech–I don’t say the same thing, but note that the logic depends upon a view about the result.)

    What I would like to do, in this and other posts, is force those who would use invented frameworks like “quid pro quo” to explain why quid pro quo (as modernly invented) is a threat to the integrity of society and independent expenditures are not–to get into the weeds of the nature of political life, and not rest on terms that sound precise but aren’t.

    Thanks for the comment!


  6. Joe says:

    Citizens United allows for various regulations of campaign contributions that do not appear to be the same as what newspaper editorials can involve exactly. Disclosure laws, for instance. We allow for anonymous speech. I reckon this involves an anonymous online newspaper. But, anonymous $10K contributions might be another thing.

    As Justice Ginsburg once said “In for a calf is not always in for a cow.” — The overall dynamic here requires a full understanding of what state interests are involved, including a full understanding of “corruption.” Yet again, using originalists playing grounds, interesting discussions are being made. As Justice Souter once said, originalism is helpful, if we realize its limitations.

  7. Zephyr Teachout says:

    Nicely put, Joe.