June 2013 Vol. 111 No. 8 THE REVIEW

Defining Corruption and Constitutionalizing Democracy

Deborah Hellman

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. 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 that 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 how the official ought to act or how 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 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.

   //  VIEW PDF
& Other Current Events

Crawford v. Washington: A Ten Year Retrospective

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation...

Come Back to the Boat, Justice Breyer!

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly...

Crawford v. Washington: The Next Ten Years

Imagine a world . . . in which the Supreme Court got it right the first time. That is,...

The Crawford Debacle

First a toast-to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the...

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution...
MAILING LIST
Sign Up to Join Our Mailing List