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.