On Political Corruption
New York University School of Law
August 19, 2010
Harvard Law Review, Vol. 124, 2010
NYU School of Law, Public Law Research Paper No. 10-54
This Essay takes Citizens United as a launching point to revisit the central Buckley v. Valeo paradigm and examine what possibilities for reform remain to redress the vulnerabilities of democracy before the powers of the purse. Beginning with Buckley, the Court recognized that contributions had the unique potential to corrupt the political process. Revisiting the contribution process and the concept of corruption may yield a better handle on what should be the sources of concern in the financing of electoral campaigns. The inquiry begins with the contested terrain over the nature of political corruption. Once the Supreme Court announced in Buckley that the concern over corruption or even its appearance could justify limitations on money in politics, the race was on to fill the porous concept of corruption with every conceivable meaning advocates could muster. Citizens United categorically rejected the rationale of Austin v. Michigan Chamber of Commerce that corruption ensues from the electoral distortions caused by differences in wealth. Citizens United also rejected any attempt to draw the lines of participation at persons versus corporations based upon similar access to wealth. But what is the remaining corruption concern?
The argument presented is that the corruption concern is really a concern with ensuring public - rather than private - outputs from the policy making process of government once in office, rather than when candidates stand for election. The argument rests heavily on the idea that the threat to democratic governance may come from the emergence of a “clientelist” relation between elected officials and those who seek to profit by relations to the state. This reorientation toward corruption in the outputs of policy making suggests effective solutions to address the financial vulnerabilities of democracy compatible with the Court’s strong constitutional stance in Citizens United. Specifically, the focus is on mechanisms to empower democratic participation in two ways, one by inducement, one by prohibition. Counterintuitively, the inducement looks to increasing the amount of contributions to campaigns to alleviate some of the concerns over political corruption, while the prohibition seeks to bar those in a position to distort public policy – such as government contractors – from providing support to candidates’ campaigns.
Number of Pages in PDF File: 26
Date posted: August 21, 2010 ; Last revised: December 12, 2012