Friday, February 7, 2014
Zephyr Teachout (Fordham University School of Law) has posted McCutcheon and the Meaning of Corruption: Not All Quid Pro Quos are Made of the Same Stuff on SSRN. Here is the abstract:
This Article critiques the use of quid pro quo as a method of defining corruption in campaign finance law cases.
I argue first that quid pro quo has no definite meaning. Therefore, one doesn't avoid the problem of defining corruption by attaching "quid pro quo" to it. In the case law, sometimes it means explicit agreements, sometimes it means agreements about specific things, sometimes it is redundant, and sometimes it encompasses gifts in exchange for a promise to help out "as opportunities arise," a definition that sounds very close to the "influence seeking" that a majority of the Court has previously categorized as "not corruption."
Second, I show that quid pro quo language has shallow roots. It is not a major part of traditional white collar criminal law doctrine: it appears through Buckley, and gets ported over to bribery laws. Relatedly, I show that quid pro quo is not a requirement in many states for proving bribery.
Third, I argue that the use of quid pro quo as a limit in criminal bribery law comes from Due Process and prosecutorial discretion, not from the meaning of corruption itself. This kind of limit makes sense when interpreting criminal laws: the same limits don't make sense when interpreting the constitutional meaning of corruption. Due Process-derived constraints should be understood for what they are, not definitional constraints.
Fourth, I show how the importation of bribery law terms to constitutional law deliberations reflects a positivism that is uniquely poorly suited to corruption definitions.
What the Court has already done in Citizens United, and seems poised to do in McCutcheon, is port over the definition of corruption from a smattering of “intent” based white collar criminal statutes in order to define the scope of corruption as a (quasi-)Constitutional principle. The portage is done through the language of quid pro quo. As I argue in this piece, this transference is not justified, is bad history, and makes bad law.
It is an early draft, and comments are welcome!