The Concept of Corruption in Campaign Finance Law
Burke, Thomas F., Constitutional Commentary
In Buckley vs. Valeo,(1) the Supreme Court put the concept of corruption at the center of campaign finance law. The Court held that only society,s interest in preventing "corruption and the appearance of corruption" outweighed the limits on free expression created by restrictions on campaign contributions and expenditures. Other goals, such as equalizing the influence of citizens over elections, limiting the influence of money in electoral politics, or creating more competitive elections, were rejected as insufficiently compelling to justify regulating political speech.(2) The Court's focus on corruption has been reiterated in a series of cases following Buckley, which have decided whether various provisions of the Federal Election Campaign Act, or local laws, violate the First Amendment.(3) Barring a major shift in this area of law, corruption is the criterion by which the constitutionality of further reforms in campaign finance regulation will be measured.
The Court's emphasis on "corruption and the appearance of corruption" has stimulated criticism on several fronts. From the left, the Court is criticized for not giving credence to other interests served by campaign finance regulation.(4) From the right comes the criticism that the Court has been inconsistent in its application of the corruption standard.(5) Others find the problem in the term "corruption" itself. Frank Sorauf argues that while the phrase "has a ring that most Americans will like ... its apparent clarity is deceptive, and its origin is at best clouded."(6) Yet whatever its flaws, politicians, activists, judges and even picky academics continually employ the concept of corruption in their claims about the campaign finance system. I hope in this article to give some sense of both the possibilities and the limits of understanding campaign finance as an issue of corruption.
The first part of the article briefly considers the concept of corruption and the ways in which academic commentators have explored it. The second part analyzes how "corruption" has been employed in a series of Supreme Court cases beginning with Buckley. Finally, the third part defends what I call the "monetary influence" standard of corruption as the most appropriate one to use in controversies over campaign finance. This defense turns out to be a rather complex enterprise; it requires a turn back to the foundations of representative democracy. Any adequate standard of corruption, I argue, must be grounded in a convincing theory of representation.
I. THE CONCEPT OF CORRUPTION
Even the dictionary definitions of corruption suggest that it is a tricky term. The Oxford English Dictionary gives nine basic definitions of corruption, but there is an element common to all: a notion that something pure, or natural, or ordered has decayed or become degraded. Corruption was used in medieval times to denote physical processes such as infection or decomposition.(7) When corruption is proclaimed in political life it presumes some ideal state. Corruption is thus a loaded term: you cannot can something corrupt without an implicit reference to some ideal. In order to employ the concept of corruption in the context of a political controversy, such as that over campaign finance, one must have some underlying notion of the pure, original or natural state of the body politic.
Not surprisingly, then, academics have had difficulty arriving at satisfactory criteria for deciding what is corrupt. James Scott divides attempts into three approaches: legal norms, public opinion, and the public interest.(8) A legal norms approach focuses on the laws and formal rules of a given society in determining what is corrupt and what is not.(9) While such an approach may be useful in comparative research, it seems unlikely that it can help us in a discussion of a legal controversy.(10) After all, we can't very well refer to the rules of our society when the issue is what those rules should be. …