The Unspoken Institutional Battle over Anti-Corruption: Citizens United, Honest Services, and the Legislative-Judicial Divide

53 Pages Posted: 7 Mar 2011 Last revised: 15 Mar 2016

See all articles by Jacob Eisler

Jacob Eisler

Southampton Law School; University of Cambridge - Faculty of Law

Date Written: October 1, 2010

Abstract

Guided by two cases decided in 2010 (Citizens United and Skilling), this article investigates a pivotal but overlooked dispute between the Supreme Court and Congress over the acceptable contours of public corruption law. Each case narrowly relies on principles and precedents that appear only tangentially related to corruption. Yet in historical context, these cases emerge as only the latest judicial nullification of broad and flexible congressional anti-corruption legislation. Through parallel examination of campaign finance regulation and honest services law, this article suggests a subtle but striking pattern: when Congress has advanced expansive, flexible anti-corruption measures, the Supreme Court has tenaciously constrained such measures in favor of narrowly drawn bright-line rules.

This article argues that the disagreement originates in the institutions’ differing postures towards anti-corruption. Certain congressional action has promoted civic-minded public conduct, and thus facilitated ‘deliberative’ examination of political motives. However, the Supreme Court has generally blocked broadly constructed anti-corruption measures because their enforcement threatens constitutionally protected individual rights. Thus the Court has left standing a ‘competitive’ anti-corruption regime which presumes a market-like political setting populated by self-interested actors.

This unspoken divergence has shaped corruption law, and with it the nature of American politics. The Court’s intractability poses a dilemma for future anti-corruption reform. Policy-makers must either defer to the Court but relinquish the possibility of deliberative anti-corruption achieved through traditional regulatory and prosecutorial means, or force a reconsideration of individual rights in the context of anti-corruption enforcement.

Keywords: Corruption, Campaign Finance, Criminal Procedure, Political Theory, Citizens United, Skilling, Election Law, Honest Services

Suggested Citation

Eisler, Jacob, The Unspoken Institutional Battle over Anti-Corruption: Citizens United, Honest Services, and the Legislative-Judicial Divide (October 1, 2010). 9 First Amendment Law Review 363 (2011); University of Cambridge Faculty of Law Research Paper No. 16/2016. Available at SSRN: https://ssrn.com/abstract=1780323

Jacob Eisler (Contact Author)

Southampton Law School ( email )

University Rd.
Southampton SO17 1BJ, Hampshire SO17 1LP
United Kingdom

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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