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.