FACULTY Q&A: Hellman Critiques Court's Role in Defining Corruption in Campaign Finance

By Mary Wood

Whether various campaign finance laws are constitutional often depends on how the Supreme Court defines what kinds of political contributions or spending are corrupting. But the Court should not be deciding what constitutes corruption in electoral politics, says Law Professor Deborah Hellman.

"The main front in the battle over the constitutionality of campaign finance laws has long focused on defining corruption," Hellman writes in "Defining Corruption and Constitutionalizing Democracy," a forthcoming paper to be published in the June 2013 issue of Michigan Law Review. "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."

The Supreme Court used just such a narrow definition of corruption in striking down restrictions on corporate spending in Citizens United, which affirmed the right of corporations to run independent political ads.

Hellman says legislators — not courts — should determine what amounts to corruption in campaign finance, since by doing so they will, at the same time, be defining the elected official's role in a democracy.

The Court is often reluctant to say what is required for a well-functioning democracy, Hellman writes, so "why refrain from constitutionalizing a view of good government in some cases (e.g., partisan gerrymandering) while asserting in others (e.g., campaign finance) that the court knows corruption of good government when it sees it? The two are but flip sides of the same coin."

"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," she writes.

How did you become interested in this issue?

I became interested in how the Supreme Court handles campaign finance issues because I was struck by the incredible stretch involved in its landmark case in the area — Buckley v. Valeo. In that case, the Court held that both giving and spending money on politics are protected as "speech" under the First Amendment and so laws that limit them must pass very high hurdles. The main reason the Court found giving and spending money on politics is a form of speech was that money facilitates speaking. How would one buy a TV or newspaper ad without money? But this argument is far too quick. While it is true that money facilitates speaking, this isn't because of any special connection between money and speech. Rather, money makes it easier to speak because money makes it easier to do almost anything; simply put, money is useful. Yet not all constitutionally protected rights are treated by the Court as including the right to spend money in order to better exercise them. One has a right to sexual intimacy following Lawrence v. Texas, but no right to spend money on a prostitute in order to facilitate the exercise of that right, for example. So simply noting that money helps one to speak is insufficient to conclude that the right to spend money is a part of the right to speak. I developed this argument in an article "Money Talks but It Isn't Speech." Writing that article started me thinking about corruption. So many of the Court's campaign finance cases turn on a definition of corruption, yet the Court nowhere explains why it, rather than Congress or state legislatures, gets to define this term.

Why is it a mistake for the Supreme Court to try to define corruption? Isn't their role to help clarify what can amount to legal terms?

When the Supreme Court strikes down a law for conflicting with the Constitution, it must define the terms that are either in the Constitution itself or that a good interpretation of the Constitution requires it to define. In order to determine whether a law violates the First Amendment's command that "Congress shall make no law abridging the freedom of speech," the Court must define "speech." And that is what the Court is doing when it finds that giving and spending of money in connection with elections are protected under the First Amendment. The Court then goes on to say that restrictions on this "speech" are permitted so long as they serve a compelling governmental interest and are narrowly tailored to protecting that interest. This is where corruption comes in. The Court is saying that preventing corruption, as it defines corruption, is compelling enough to justify restrictions on the "speech" of giving and spending money in politics. So "corruption" is not a legal term that the Court must define in order to do its job.

You argue that corruption is special because it is a derivative concept, meaning its definition depends on a theory of the institution or official involved. You write that "what rightly counts as corruption of one type of institution or official within it is not the same as what counts as corruption of another type of institution or official." What does that mean for how the Court should — or shouldn't — address the issue of corruption in campaign finance laws? How does the issue parallel with other derivative concepts the Court has addressed?

Corruption doesn't have a single definition. Rather, a definition of corruption for a particular institution depends on a theory of how a particular institution ought to function. So, for example, nepotism is considered a classic example of corruption in government. If I work for the government and I hire Tom because he is my brother, even though he is less qualified than other job applicants, this is corruption. Suppose instead that I invite Tom to a holiday dinner because he is my brother, even though he is a less-talented conversationalist than other people I might have invited. Here we would say that I do not act corruptly and the reason we would reach this conclusion is that the norms of a good family are quite different from the norms of good government.

Once we recognize that corruption is a derivative concept in this way, we realize that when the Court defines corruption of government in its campaign finance cases, it inevitably defines what constitutes good government at the same time. Yet this is a task the Court ought to be cautious about taking up. In other areas of law, apportionment and gerrymandering especially, the Court has recognized that there are many ways for governments to function democratically and, within very broad limits, balancing these sorts of concerns is best left to Congress and state legislatures.

Ultimately you suggest that the metric justices should use when considering whether campaign finance or election laws are unconstitutional is "the degree to which the law at issue infringes on the individual right," such as free speech or the right to vote.How might that play out?

If there are reasons for judicial oversight and reasons for judicial deference in this area, then determining which should carry the day will depend on how clear it is that an individual right is being affected. So, one might say that a law forbidding anyone from spending any money on elections would be in trouble. While it is for the legislature to determine what constitutes good government and thus whether restrictions on money in politics are necessary to prevent corruption, people still can't do much speaking without spending some money — even a pen costs something. At the same time, capping spending at roughly the amount that contributions are capped would not affect an individual's right to speak much at all. She can still express her support by some speaking with money or by donating to her favorite candidate, and can always continue speaking in ways that do not cost money. Once she has bought the computer, endless speaking is practically free.

If the Supreme Court would move to a model like you are proposing, would key campaign finance cases in recent years have been decided differently? How?

Whether the Court has upheld or struck down campaign finance laws has almost always turned on how it defines "corruption." When the Court defines corruption narrowly as amounting only to bribery or the appearance of bribery (what it calls "quid pro quo" corruption), it has struck down most laws [restricting giving and spending money in elections]. For example, it has struck down restrictions on spending by individuals on their own campaigns and restrictions on spending that are not coordinated with campaigns, as one cannot bribe oneself and if spending is truly independent, there can be no quid pro quo involved. When the Court understands corruption broadly as encompassing disproportionate access by wealthy individuals or as including the fact that corporations can influence elections even though the money they are able to bring to bear has no connection to actual support for the views they express, then campaign finance laws are generally upheld. If the Court were to refrain from defining corruption at all, most campaign finance laws would be upheld so long as the laws were aimed at curbing corruption as the legislature itself defines it.

You come down on the side of judicial deference versus judicial oversight. But if legislators (and the people who elect them) have more power in this issue, could it lead to unchecked corruption, where legislators write rules that favor their own interests?

The Court would still have some role to play, though it would be far more limited. The Court should look at campaign finance laws to make sure that legislators are not simply trying to ensure their own reelection. You are right that we cannot leave the fox guarding the hen house completely. But at the same time we should recognize that this sort of incumbency protection is of far greater concern in the context of partisan gerrymandering and here, as yet, the Court has been reluctant to intervene precisely because it is so hard to say what are the elements of a healthy and well-functioning democracy.

How does this article fit in with your scholarship overall?

As I mentioned, this piece grows out of my previous article — "Money Talks" — which challenges whether restrictions on giving and spending money really are restrictions on "speech" as the First Amendment defines that term. I plan to also write something about how the Court ought to think about the "appearance of corruption." The Court has said that restrictions on giving and spending money on politics are justified only in order to prevent corruption or its appearance, but has said very little about how we ought to understand the second half of this formulation. That is a question I would like to take up.

What are you working on next?

At the moment I am working on two book chapters, neither related to campaign finance issues. The first is about precedent and the second is about the moral foundations of discrimination law. I hope to return to campaign finance — and the appearance of corruption issue — very soon, as I find the fact that money is so central to political success deeply disturbing. And there is one ray of hope in that area worth pursuing.In a less-well-known unanimous opinion written by Justice Scalia — Nevada Commission on Ethics v. Carrigan [also a case the Law School's Supreme Court Litigation Clinic won] — the Court held that the Nevada legislature did not violate the freedom of speech of its legislators by requiring them to recuse themselves from voting on legislation in which they had a financial interest, as the legislature defined it. The opinion is written broadly and clearly holds that the legislator has no personal right to his vote, as the vote is a share of the legislature's power, and thus laws that govern its use are for the legislature to make. If this is right, then perhaps legislatures can adopt laws restricting their members from voting on issues when they have taken money from groups or individuals that stand to benefit from the laws under consideration. It is surely something to think more about.