Contributions, Bribes, and the Convergence of Political and Criminal Corruption

Abstract

Accusations of corruption in politics are ubiquitous, yet there is a decided lack of agreement over how to define corruption. The Supreme Court, in both its campaign finance and criminal political corruption doctrines, has adopted a narrow definition centered on quid pro quo exchanges. At first glance, this doctrinal convergence seems to provide an attractive symmetry of sorts: The government is constitutionally barred from restricting political spending unless such spending is highly likely to result in quid pro quo arrangements; and likewise, politicians may not be prosecuted unless they are found to have agreed to such arrangements.

In this Article, I argue against this doctrinal convergence, which I claim, problematically oversimplifies the concept of corruption. This oversimplification has both theoretical and legal significance. In brief, I argue that the Supreme Court’s decidedly narrow understanding of corruption and its effects on our politics elides important distinctions between corruption in the realm of campaign finance and corruption that warrants criminal sanctions. Campaign finance laws aim to prevent perceived democratic process failures. In contrast, criminal laws prohibiting bribery, extortion, and the like, aim to punish unscrupulous political actors. These are distinct purposes and should be recognized as such.

Drawing from the political science theory of “multiple elitism,” I introduce a new theory of corruption — “commonplace political corruption” — in presenting a defense of campaign finance regulations. Commonplace political corruption is the systematic influence of special interest groups on the democratic process and the entrenched advantages that follow. I argue that this type of corruption has been renewed as of late and that my theory strengthens the constitutional arguments for upholding responsive campaign finance laws.

The Article proceeds as follows: Part II outlines the theoretical distinction between commonplace political corruption and criminal political corruption. In short, the latter sanctions individual impropriety, whereas the former implicates a deeper, more considerable threat to democracy. Part III explores the campaign finance and criminal political corruption doctrines, and examines three recent high-profile corruption cases — involving Sheldon Silver, Senator Robert Menendez, and Governor Robert McDonnell — each of which illustrates how the doctrines have converged. Part IV, in reliance on my theory of commonplace political corruption, sets forth the normative legal arguments for upholding robust campaign finance laws.

Keywords: Election Law, Campaign Finance, Criminal Law