The Framers knew buying access and influence is corrupt. Why doesn’t the Supreme Court?
“The fact that [donors] may have influence over or access to elected officials does not mean that these officials are corrupt,” Justice Kennedy declared in Citizens United, a decision thirteen years old this week. Joined by four colleagues, he said the “governmental interest in preventing corruption” cannot extend to combating such undue influence, but was “limited to [combatting] quid pro quo corruption.” The current crop of conservative justices have recognized that “[t]he line between quid pro quo corruption and general influence may seem vague at times,” but they see that as reason to expand donor influence: “err[ing] on the side” of permitting corruption whenever it’s possible that an official’s behavior is “traceable to legitimate donor influence or access” rather than a “quid pro quo.”
The Justices’ elevation of influence and access has brought about a world that definitely looks corrupt to the modern public. Billionaires buy responsiveness to their pet issues, bypassing any need to convince voters of their importance. Foreign powers can earn an audience, using their dollars to put their issues on the agenda. And now these justices are getting into the influence and access business too, while refusing to subject themselves to even the most basic ethical code of conduct.
The Court’s current hair-splitting between protected “influence and access” and the prohibited “quid pro quo” would also come as a surprise to the Framers—and indeed every generation of American to consider the matter prior to the Court’s recent turn. They have not shared the Court’s myopic view about the unseemliness of a formal exchange—one in which the official offers a specific “quid” in direct exchange for an identified “quo.” Instead, generations of Americans have instead found that the evil in corruption lies elsewhere, in the influence exerted, as revealed by contemporary statements of those in positions of influence and public reactions to the country’s biggest scandals.
Throughout our country’s history, those discussing corruption have used the concept broadly, as Zephyr Teachout exhaustively demonstrates in her comprehensive book on the subject, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United. To briefly state a few examples, John Locke, widely read by the Framers, wrote that it was corrupt for anyone to use “force, treasure, and offices of the society to corrupt the representatives and gain them to his purposes.” Locke did not limit his concern to explicit exchanges, but rather identified corruption as the turning of “purposes” by means other than persuasion through better argument–whether that be done through a quid pro quo or through influence and access.
William Blackstone, also widely cited by the Framers, quoted Locke in his commentaries, adding that to combat corruption “all undue influences upon the electors [must be] illegal, and strongly prohibited.” Once again, Blackstone did not limit his desired prohibition to only quid pro quo exchanges but sought to bar the possibility of any influence outside an appeal to reason.
The Federalist Papers similarly describe corruption as a “bias [in] judgment,” turning an official’s judgment from concern for the “public good” to concern about the official’s own “interests.” Once again, the lack of focus on quid pro quo transactions is notable. Indeed, that is not an oversight, as the Federalist Papers discuss corruption stemming from the legislator’s prioritization of their own financial interests over the public good, an interest that does not stem from a quid pro quo transaction.
The nation’s lived experience bears out these concerns and shows our forebears were as concerned about influence and access as they were about quid pro quos. The country’s first government corruption scandal did not involve a quid pro quo exchange—rather, it involved a gift without any strings attached. Shortly after the country’s founding, none other than Ambassador Benjamin Franklin was caught up in a scandal involving a particularly extravagant snuff box gifted from the King of France in appreciation of his work. Though there was no indication the monarch sought anything in particular in exchange for the gift, it still raised serious concerns about corruption. In explaining why such gifts were prohibited by the Constitution’s emoluments clause, one framer noted the gifts were banned to “prevent corruption” by excluding “foreign influence.”
A second early ethics scandal with France raised even more alarm—and nearly involved the country in a war—despite the lack of any quid pro quo. In what’s known as the XYZ Affair, French Foreign Minister Charles Maurice de Talleyrand demanded a payment from his American counterparts—but not to exercise any particular power. Rather, in exchange, he promised only “a public audience” with French officials. In other words, he promised access and an opportunity to influence. But notwithstanding the Court’s current belief that such exchanges are completely unobjectionable, Talleyrand’s proposal drew a strong rebuke from our fledgling country and was easily labeled “corruption” by Hamilton and Jefferson alike.
Similarly, a corruption scandal that threatened the Grant administration lacked the quid pro quo the Court tells us is the only matter of concern. In the age of railroad expansion, these interests sought friends in Congress through gifts of underpriced stocks. Congress eventually reprimanded the representative at the heart of the scheme, finding him guilty of distributing stock “with intent thereby to influence the votes and decisions of such members in matters to be brought before Congress for action.” These payments had the very characteristics that some on the Court would say 100 years later negated any possibility of corruption—they were made only to win favor and lacked “prearrangement and coordination” because they sought to influence voters on matters “to be brought,” not those already before Congress. Instead, the representative argued the railroad already had all it could need, and the gifts were just to earn “more friends in this Congress.” Nonetheless, Congress found this attempt to win friends was “corrup[t].”
Finally, the Watergate scandal, which gave rise to our nation’s modern system of ethics laws and regulating campaign-finance, also involved payments for influence and access that did not exhibit an explicit quid pro quo agreement. Part of the scandal involved a $400,000 pledge to the Republican National Convention from a company that was a defendant in an antitrust action that it was trying to settle on favorable terms. A leaked memo indicated the company believed its “noble commitment has gone a long way toward [its] negotiation” with the DOJ, and Nixon’s tapes show that it indeed helped. While the defendant asserted there was in fact “no deal”—i.e. there was no prearranged quid pro quo between the administration and the defendants—the payment was still widely understood to be “corrup[t].”
The lopsided nature of the history of our understanding of corruption would at least present a challenge to a jurist who actually intended to apply an original understanding of the Constitution and the powers of our government under it. Of course, as already widely recognized, this Court’s First Amendment jurisprudence, including its decision to protect corruption as speech, is not based in originalism. Yet the Court’s non-originalist rationales are equally unmoored.
According to the Court, the reason access and influence must be protected is because they “embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.” Kennedy declared that favoritism and influence are not “avoidable in representative politics.” Rather, they are part of the “nature of an elected representative” for officials “to favor the voters and contributors who support those policies” the official supports. “Democracy,” Kennedy declared, “is premised on responsiveness.”
The understanding of corruption evinced in the historical examples above easily dispels the Court’s claims. Corruption is, by definition, a type of “responsiveness.” It is being responsive to the wrong “purposes,” like an official’s personal “interests.” The gifted snuff box risked corruption because it could have caused Franklin to become responsive to the desires of the French monarch. The gifts of underpriced stocks were corrupt because they caused legislators to be responsive to the financial interests of the railroads.
The Court ignores these basic historic lessons by equivocating about the types of “supporters” to which officials may show favor. Democracy, however, does not treat supportive voters and supportive donors as equals any more than it treats the public at large as an equally deserving recipient of responsiveness as an aristocracy, a single dictator, or a foreign monarch. Democracies, in short, are responsive to the people as equals; governments responsive to donors are plutocracies.
As the same justices who now laud influence and access recognize, the fundamental feature of democracy is that the “people are sovereign.” It is for “citizens to inquire, to hear, to speak, and to use information to reach consensus” that is a “precondition to enlightened self-government.” But citizens are cut out of that process if those seeking to alter policy can side-step that hard work and simply buy influence and access with officials to achieve their ends. As the Court had previously recognized before its turn, “[c]orruption is a subversion of the political process” because “[e]lected officials are influenced to act contrary to their obligation of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” Influence and access corrupt. They “change legislative outcomes,” as surely as quid pro quo agreements—that’s why people are willing to risk going to jail to buy them—and both equally erode enlightened self-government.
A majority of the current justices appear willing to undermine self-government, however. They are willing to bend the government’s ear in favor of those interests the justices prefer by groundlessly limiting democracy’s ability to defend itself from corruption to quid pro quo agreements while ignoring broader influence and access. Given the dearth of support for that position in history or reason, the public would be right to question whether any jurist who protects officials peddling “influence and access” might be doing so for their own corrupt purposes, to create avenues to advance their careers and enrich themselves by ensuring a market for influence on and access to them.