45 Pages Posted: 14 Mar 2012 Last revised: 27 Sep 2012
Date Written: March 13, 2012
The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving and spending money in connection with elections only when they serve to avoid corruption or its appearance. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more foundational issue: Should the Court define corruption at all?
This Article argues it should not. Corruption is a derivative concept, which means that it depends on a theory of the institution involved. In order to define corruption of an official or institution, one needs an account of the how the official ought to act, or the institution ought to function. Defining legislative corruption therefore requires a theory of the legislator’s role in a well-functioning democracy. The Supreme Court’s campaign finance case law has ignored the implications of this widely shared and deceptively simple idea.
Drawing an analogy to apportionment and gerrymandering cases, this Article argues that there are important reasons for the Court to defer to legislative judgment about how best to conceive of a legislator’s role in our democracy. Those cases counsel that where both individual rights and questions of democratic theory are at issue, the Court should be cautious and careful about whether judicial intervention is appropriate. Just as the Court is hesitant to define good government, so too it should be reluctant to define corruption.
Keywords: corruption, campaign finance, legislative corruption, Supreme Court
Suggested Citation: Suggested Citation
Hellman, Deborah, Defining Corruption and Constitutionalizing Democracy (March 13, 2012). Michigan Law Review, Vol. 111, 2012; U of Maryland Legal Studies Research Paper No. 2012-16; Virginia Public Law and Legal Theory Research Paper No. 2012-59. Available at SSRN: https://ssrn.com/abstract=2021188