The Invention of “Classic” Quid Pro Quo Corruption

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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.