Thursday, May 8, 2014

Political Corruption and the Academic Left; the Zephyr Teachout Edition

In a fit of hubris only an academic could muster, law professor Zephyr Teachout recently mocked Justice Roberts’s acknowledgement in McCutcheon v. FEC that the line between influence and quid pro quo corruption can at times seem blurry. As she derisively paraphrased, “In other words, there is no line, respect the line.” McCutcheon particularly distresses academics like Teachout because of the forceful way the majority limited political corruption to quid pro quo exchanges (or their appearance).

Such a limited definition Teachout surmises, “doesn't have clear boundaries,” and is antithetical to constitutional history. It is her solution, however--a sort of thumb-on-the-scale corruption purposivism--that would irreparably injure the Constitution, from a practical, theoretical, and historical standpoint.

In order to keep themselves from being corrupted in passing laws, Congress, according to Teachout, should be free to pass laws defining what will and won’t corrupt them.

Notwithstanding its absurdity, Teachout apparently accepts this paradox in the name of “certainty” created by structural rules like McCutcheon’s aggregate limits. But it is unclear how allowing Congress and a compliant Court to define corruption as anything from “access,” to “influence,” to “distortions of aggregate wealth,” produces the kind of certainty Teachout seeks.

In fact, in dismissing McCutcheon’s reliance on McCormick v. US she rejects the definiteness a stand-alone quid pro quo corruption standard produces. McCormick, a campaign donation-extortion case, rejected theories of corruption based on favor-seeking constituents voluntarily donating to amenable candidates. Teachout complains McCormick interpreted quid pro quo ahistorically and only in the context of a federal statute. But that misses the point. McCormick defends the vast majority of political transactions as mundane and necessary and requires definitive proof, not vague inferences, to transform a monetary political exchange into a corrupt transaction.

The “irony” she says, of Citizens United and McCutcheon, “is that they will create a greater push to use bribery prosecutions,” requiring mens rea, to prove corruption. Besides using the word ‘irony’ unironically, Teachout fails to demonstrate why requiring actual proof for corruptible acts, as the McCormick-McCutcheon paradigm does, yields an undesirable result.

Besides hubris, absurdity, and imprecise verbiage, Teachout’s worst sin is her flub of history. She principally rests her argument on the overwhelming concern the Founders had for corruption. Extirpation of this evil, so goes the theory, should sufficiently put a thumb-on-the-scale in modern campaign finance cases, as it reflects the Constitution’s overarching purpose.

But even assuming her contention is valid, she ignores the Founders’ ingenious solution to the corruption problem: a government of limited and enumerated powers. As Madison said in Federalist 45, the federal government’s powers would be “few and defined.”  A government that can do little can abuse little. It was only 150 years after the Republic’s founding, when Professor Teachout’s progressive forebears finally won the day, that the vast and corruptible administrative state became a modern problem.

In any event, the avoidance of corruption cannot be the only (or most prominent) purpose in constitutional interpretation. Doing so ignores other purposes or “values” embodied in the document, like the protection of individual rights. And this purpose has the added advantage of being recognized by more august commentators than a few historically minded leftist professors. As Justice Marshall wrote, “At base . . . the Framers’ purpose was to protect individual rights. . . . Provisions for the separation of powers within the Legislative Branch are thus not different in kind from provisions concerning relations between the branches; both sets of provisions safeguard liberty.”

Professor Teachout’s arguments must fail because they are wrong. They ignore the certainty in requiring proof before labeling a political act involving money corrupt. And they fail to account for the primary reason the Founders created the Constitution: to advance and protect the individual from an overbearing (and corruptible) government. 

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