The anti-corruption principle

Cornell Law Review

Volumn 94, Issue 2, 2009, Pages 341-414

  Teachout, Zephyr ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 60449118713     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (305)

1. ZEPHYR TEACHOUT, THE MEANING OF CORRUPTION (forthcoming 2010).
2. FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2673-76 (2007).
3. See, e.g., Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 685 (1990) (Scalia, J., dissenting) (stating that the concept of corruption has "founder[ed] under [a] weight too great to be logically sustained").
4. See, e.g., McConnell v. FEC, 540 U.S. 93, 153 (2003) (describing corruption as unequal capacity to influence based on wealth); David A, Strauss, Corruption, Equality, and Campaign Finance Reform, 94 COLUM. L. REV. 1369, 1370 (1994) (stating that corruption is a problem of inequality); Ronald Dworkin, The Curse of American Politics, N.Y. REV. BOOKS, Oct. 17, 1996, at 22 (same).
5. See, e.g., McConnell, 540 U.S. at 292 (Thomas, J., dissenting) (describing corruption as only quid pro quo bribery).
6. In this way, my work has benefitted from the global approach to democratic problems advocated by Richard Pildes, Samuel Issacharoff, and Pamela Karlan, among others. See, e.g., Richard H. Pildes, Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 40-41 (2004) (arguing that courts ought to take a more unified approach toward problems of democracy and power).
7. See generally CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969); see also MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 6 (1995).
8. See, e.g., Mark Tushnet, Federalism and the Traditions of American Political Theory, 19 GA. L. REV. 981, 992 (1985) (explaining corruption in the context of "the republican tradition").
9. In fact, the Framers' anti-corruption principles are relevant-and may be critical- to liberal democratic theorists as well. Montesquieu's view of corruption was not that different from that of John Locke, who described corrupt representatives seeking moneygrabs, and corrupt executives seducing representatives, in his treatise on the dissolution of governments. See infra notes 43-44 and accompanying text (discussing Montesquieu and his influence on the Framers). Locke's intellectual descendants, as well as Montesquieu's, ought to be interested in the American trajectory of the deeply held conviction that corrupt self-government is an oxymoron. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 412-14 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
10. MICHAEL KAMMEN, A MACHINE THAT WOULD GO of ITSELF 18, 125, 189 (1986) (quoting JAMES RUSSELL LOWELL, The Place of the Independent in Politics, in POLITICAL ESSAYS 312, 312 (1888) (warning against political complacency)).
11. Id.
12. See CNN POLL 25 (2006), http://ia.cnn.net/cnn/2006/ images/10/19/re125caf.pdf.
13. TRANSPARENCY INTERNATIONAL, 2008 CORRUPTION PERCEPTIONS INDEX, http://www.transparency.org/content/ download/36589/575262. This U.S. rank is consistent with ranks in prior years. See, e.g., TRANSPARENCY INTERNATIONAL, 2007 CORRUPTION PERCEPTIONS INDEX, http://www. transparency.org/content/download/24104/360217 (ranking the United States twentieth); TRANSPARENCY INTERNATIONAL, CORRUPTION PERCEPTIONS INDEX 2002, http://www.transparency.org/content/ download/3223/19546/file/cpi2002. pressrelease.en.pdf, (ranking the United States sixteenth).
14. THE FEDERALIST No. 68, at 413 (Alexander Hamilton) (Clinton Rossiter ed., 1961). These issues are also important because we are in the middle of the largest export of the democratic form in world history. In Eastern Europe, Africa, and Eurasia, American intellectuals, activists, and government representatives have worked with local leaders to develop constitutions based on the American model. If the Framers were right-if one of the biggest threats to government is corruption-we are entertaining a dangerous game. We are exporting a democratic vision without simultaneously exporting a constitutional tradition of protecting against corruption.
15. 424 U.S. 1 (1976).
16. James Savage has written about some of the same convention discussions. See James D. Savage, Corruption and Virtue at the Constitutional Convention, 56 J. POL. 174 (1994) (discussing the relationship between republicanism and corruption in convention debates). Additionally, this section draws from Zephyr Teachout, Corruption, Technology and Constitutional Design, in REBOOTING AMERICA: IDEAS FOR REDESIGNING AMERICAN DEMOCRACY FOR THE INTERNET AGE 126 (2008).
17. Notes of Robert Yates (June 23, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 391, 392 (Max Farrand ed., rev. ed. 1966) (1937) [hereinafter CONVENTION RECORDS]; see also Notes of James Madison (June 23, 1787), in 1 CONVENTION RECORDS, supra, at 385, 387.
18. See Savage, supra note 16, at 177 (stating that Madison's notes "record that 15 delegates used the term 'corruption' no less than 54 times").
19. BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION, at xiii (enlarged ed. 1992).
20. Savage, supra note 16, at 181.
21. J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 507 (1975).
22. In Section II, infra, I articulate what they meant by the term corruption. However, for the purposes of understanding their motivations, the Framers' meaning was close enough to our current understanding that a modern reader can make sense of this fear.
23. Notes of James Madison (Aug. 14, 1787), in 2 CONVENTION RECORDS, supra note 17, at 282, 288 ("What led to the appointment of this Convention? The corruption & mutability of the Legislative Councils of the States.") (recording arguments of Mercer).
24. See infra Part I.A; see also William G. Mayer, What the Founders Intended: Another Look at the Origins of the American Presidential Selection Process, in THE MAKING OF THE PRESIDENTIAL CANDIDATES 2008, at 203, 216 (William G. Mayer ed., 2008).
25. See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 467 (1969) ("It was 'the corruption and the mutability of the Legislative Councils of the States'... that actually led to the overhauling of the federal government in 1787."); see also Notes of James Madison, supra note 23, at 285 ("Nothing else can protect the people agst. those speculating Legislatures which are now plundering them throughout the U. States.") (quoting Mercer).
26. See E. James Ferguson 8c Elizabeth Miles Nuxoll, Investigation of Government Corruption During the American Revolution, 8 CONG. STUD. 13, 23 (1981); see also HARLOW GILES UNGER, AMERICA'S SECOND REVOLUTION 97 (2007) (discussing accusations of embezzlement).
27. See, e.g., JEFF BROADWATER, GEORGE MASON: Forgotten FOUNDER 118 (2006).
28. Patrick Henry, Speech on the Expediency of Adopting the Federal Constitution (June 7, 1788), in 1 ELOQUENCE OF THE UNITED STATES 178, 223 (E.B. Williston ed., 1827). Britain was both a model and a bogeyman-fundamental admiration for British form undergirded design efforts for federalists and antifederalists alike. See id.; see also WOOD, supra note 25, at 32.
29. Notes of Robert Yates (June 22, 1787), in 1 CONVENTION RECORDS, supra note 17, at 377, 379 (quoting Butler).
30. See WOOD, supra note 25, at 32.
31. CHARLES PINCKNEY, OBSERVATIONS ON THE PLAN OF GOVERNMENT SUBMITTED TO THE FEDERAL CONVENTION, IN PHILADELPHIA, ON THE 28TH OF MAY, 1787, reprinted in 3 CONVENTION RECORDS, supra note 17, at 106, 109.
32. EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE (1776).
33. See, e.g., Notes of Robert Yates (June 19, 1787), in 1 CONVENTION RECORDS, supra note 17, at 325, 327 ("Did not Persia and Macedon distract the councils of Greece by acts of corruption?" (quoting Madison)).
34. See, e.g., THE FEDERALIST No. 70 (Alexander Hamilton), No. 63 (James Madison); Essays by a [Maryland] Farmer No. VII (Apr. 11, 1788), reprinted in 5 THE COMPLETE ANTI- FEDERALIST 60 (Herbert J. Storing ed., 1981); Essays of Brutus No. X (24 Jan. 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST, supra, at 413; James Monroe, Remarks During the Virginia Debate on the Adoption of the Federal Constitution (June 10, 1787), in 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 207, 209-10 (reprint 1941) (Jonathan Elliot ed., 2d ed. 1836) [hereinafter STATE RATIFICATION DEBATES].
35. DAVID J. BEDERMAN, THE CLASSICAL FOUNDATIONS OF THE AMERICAN CONSTITUTION: PREVAILING WISDOM 41 (2008).
36. See generally Daniel T. Rogers, Republicanism: The Career of A Concept, 79 J. AM. HIST. 11 (1992) (describing the creation of the term "republicanism"); Savage, supra note 16 (describing the connection between republicanism and corruption.).
37. See POCOCK, supra note 21, at 519-26.
38. Id., at 516.
39. See, e.g., Notes of James Madison (June 30, 1787), in 1 CONVENTION RECORDS, supra note 17, at 481, 485 (Madison cites Montesquieu); Notes of James Madison (July 17, 1787), in 2 CONVENTION RECORDS, supra note 17, at 25, 34 (same). See generally PAUL MERRILL SPURLIN, MONTESQUIEU IN AMERICA: 1760-1801 (1940).
40. See MACHIAVELLI'S LIBERAL REPUBLICAN LEGACY 167-278 (Paul A. Rahe ed., 2006). John Adams in particular was heavily influenced by Machiavelli. C. Bradley Thompson, John Adams's Machiavellian Moment, in id. at 189, 189-207. For a discussion of the republicanism of the Framers, see, for example, Wood, supra note 25, at 32-34.
41. THE FEDERALIST No. 18 (James Madison with Alexander Hamilton), supra note 14, at 123 ("It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker...."); Notes of Madison, June 28, 1787, in 1 CONVENTION RECORDS, supra note 17, at 449 (Madison cites Plutarch).
42. See WOOD, supra note 25.
43. BAILYN, supra note 19, at 344-45.
44. See BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS passim (Anne M. Cohler et al. eds. & trans., Cambridge Univ. Press 1989) (1748).
45. Through the reading of the old texts, the founder's obsession with corruption is obvious. It intrigues me how little focus it has gotten, to the point where indexes to The Federalist Papers and to Bailyn's book do not even track corruption references. See, e.g., Clinton Rossiter, Index of Ideas, in THE FEDERALIST PAPERS, supra note 14, at 551-60 (containing no references to corruption but referencing "factions" forty-five times). Although the term "corrupt" or "corruption" is used twenty-two times in The Federalist Papers, "factions" are discussed only seventeen times. Bailyn tells the story of his excited realization that "slavery," "corruption," and "conspiracy" were not mere rhetoric and propaganda, and he notes that the history of the republic is rife with a fear of a corruption-fed conspiracy against liberty. The index to The Federalist Papers, however, ignores these discussions. I am not suggesting there is a conspiracy against corruption, but that modern thinking has demoted the importance of the anti-corruption motivations that influenced the Constitution's form.
46. THE FEDERALIST No. 22 (Alexander Hamilton), supra note 14, at 149.
47. See 3 PATRICK HENRY: LIFE, CORRESPONDENCEV, AND SPEECHES 467, 501, 526, 535 (William Wirt Henry ed., 1891).
48. John M. Murrin, Escaping Perfidious Albion: Federalism, Fear of Aristocracy, and the Democratization of Corruption in Postrevolutionary America, in VIRTUE, CORRUPTION, AND SELF- INTEREST: POLITICAL VALUES IN THE EIGHTEENTH CENTURY 103, 104 (Richard K. Matthews ed., 1994).
49. A review of Madison's and Yates's notes shows that "corruption" and "corrupt" (not including "corruption of blood" and its variants) show up in discussions twice as often as "faction" or "factions, " and twice as often as "violent" or "violence." See Notes of James Madison, in 1 CONVENTION RECORDS, supra note 17, passim; Notes of Robert Yates, 1 CONVENTION RECORDS, supra note 17, passim.
50. Savage, supra note 16, at 177.
51. THE FEDERALIST No. 57 (James Madison), supra note 14, at 354 (discussing a concern that a representative's duty will be "diverted from him by the intrigues of the ambitious or the bribes of the rich").
52. See id.
53. J. Peter Euben, Corruption, in POLITICAL INNOVATION AND CONCEPTUAL CHANGE 220, 221 (Terrence Ball et al. eds., 1989).
54. THE FEDERALIST No. 68 (Alexander Hamilton), supra note 14, at 412. The cabal- the faction-has been discussed and litigated, and it has contributed to the formation of many theories.
55. POCOCK, supra note 21, at 513.
56. Benjamin Franklin, in a speech, cheerily predicted that "its complexion was doubtful; that it might last for ages, involve one quarter of the globe, and probably terminate in despotism." 2 MERCY OTIS WARREN, HISTORY OF THE RISE, PROGRESS AND TERMINATION OF THE AMERICAN REVOLUTION 660 (Lester H. Cohen ed., Liberty Classics 1988) (1805).
57. John Noonan argued in his influential book Bribes that the absence of a direct clause ensuring the integrity of the legislature, the absence of an impeachment formula for legislators, and the absence of explicit criminal laws against corrupt legislators evidence a conscious choice and a "distinctly modest barrier to corruption of Congress." JOHN T. NOONAN, JR., BRIBES 433 (1984). At another point in the book, he argues that "[t]he only sanction for legislative bribetakers was to be political." Id. at 435. These efforts were not modest, but they were focused on the political structures. These claims, made in the context of his investigation of criminal laws against bribery, are correct; inasmuch as they might be read as a claim that the Framers were unconcerned about bribery, however, such a reading would be wrong. One of the purposes of this Article is to show, and then explore, non-criminal law responses to the problems of corruption.
58. Many of the clauses and structural elements that I discuss have separate purposes- by suggesting that they were animated by a corruption concern, I do not mean to imply that they did not also have other-and sometimes more important-reasons for their existence.
59. Notes of James Madison (July 10, 1787), in 1 CONVENTION RECORDS, supra note 17, at 566, 569.
60. Notes of James Madison (June 16, 1787), in 1 CONVENTION RECORDS, supra note 17, at 249, 254.
61. Notes of James Madison (Aug. 17, 1787), in 2 CONVENTION RECORDS, supra note 17, at 314, 319 (fearing that foreign countries would be primary agents of corruption).
62. Notes of James Madison (Aug. 13, 1787), in 2 CONVENTION RECORDS, supra note 17, at 267, 279.
63. Notes of James Madison, (July 20, 1787), in 2 CONVENTION RECORDS, supra note 17, at 63, 66.
64. Savage, supra note 16, at 181.
65. Letter from James Madison to George Hay (Aug. 23, 1823), in 9 THE WRITINGS OF JAMES MADISON 147, 150-51 (Gaillard Hunt ed., 1910).
66. See U.S. CONST, art. I, § 2, cl. 3. The size of the state itself was also a matter of concern. Several delegates noted that Holland was a small state, and they believed that its smallness was one of the reasons it was easily corrupted by French influence. See Notes of James Madison (June 16, 1787), supra note 60, at 254 ("Every other source of influence must also be stronger in small than large bodies of men. When Lord Chesterfield had told us that one of the Dutch provinces had been seduced into the views of France, he [need] not have added, that it was not Holland, but one of the smallest of them." (alteration in original)). The Framers saw America as a small country, akin to Holland and other small states-a country facing constant threat from the power and wealth of larger, imperial countries such as England, France, and Spain.
67. See Notes of Rufus King (June 6, 1787), in 1 CONVENTION RECORDS, supra note 17, at 142, 142 (recording George Mason's argument that "now it is proposed to form a Govt for men & not for Societies of men or States, therefore you shd. draw the Representatives immediately from the people.... [S]uppose a majority of the Legislat. in favor of paper money or any other Bad measure, wd. they not consider the opinions of the candidates on these favorite measures?").
68. U.S. CONST, art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States....").
69. Notes of Robert Yates (June 6, 1787), in 1 CONVENTION RECORDS, supra note 17, at 140, 140. It seems safe to assume that the clauses that were kept in after argument were inserted in the first place for similar reasons as those given to protect them.
70. See Notes of Rufus King (Aug. 8, 1787), in 2 CONVENTION RECORDS, supra note 17, at 225, 225.
71. Id. (recording argument of Mason); see also Notes of James Madison (Aug. 8, 1787), in 2 CONVENTION RECORDS, supra note 17, at 215, 218 (recording argument of Mason).
72. See Notes of Rufus King, supra note 70, at 225.
73. An adventurer is "one who seeks unmerited wealth or position esp. by playing on the credulity or prejudice of others." MERRIAM- WEBSTER'S COLLEGIATE DICTIONARY 18 (11th ed. 2004).
74. See Notes of James Madison, supra note 71, at 216.
75. Notes of James Madison (Aug. 9, 1787), in 2 CONVENTION RECORDS, supra note 17, at 230, 239 (recording statement of John Rutlidge).
76. See id. at 238 ("The men who can shake off their attachments to their own Country can never love any other.... Admit a Frenchman into your Senate, and he will study to increase the commerce of France: An Englishman, he will feel an equal bias in favor of that of England.") (recording statement of Gov. Morris).
77. Cf. United States v. Richardson, 418 U.S. 166, 166 n. 1 (1974) (addressing the question "[w]hether a federal taxpayer has standing to challenge the provisions of the Central Intelligence Act which provide that appropriations to and expenditures by that Agency shall not be made public, on the ground that such secrecy contravenes Article I, section 9, clause 7 of the Constitution").
78. See, e.g., Richard D. Rosen, Funding "Non- Traditional" Military Operations: The Alluring Myth of a Presidential Power of the Purse, 155 MIL. L. REV. 1, 25-44 (1998) (describing English history that formed the background for the Appropriations Clause); Kate Stith, Congress' Power of the Purse, 97 YALE L.J. 1343, 1352-53 (1988) (explaining that control over the amount of money the government can spend in effect controls the government's power); Adrian Vermeule, The Constitutional Law of Official Compensation, 102 COLUM. L. REV. 501, 509 (2002) ("The Appropriations Clause... background is the similar concern of seventeenth- and eighteenth-century British Parliaments that an executive with access to the treasury as well as to offices could corrupt legislators and free itself from popular oversight.").
79. See Vermeule, supra note 78, at 509.
80. Notes of Robert Yates, supra note 29, at 381.
81. See U.S. CONST, art. I, § 6, cl. 2.
82. 424 U.S. 1, 124 (1976).
83. See Notes of Robert Yates, supra note 29, at 381 (recording remarks of Alexander Hamilton); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 869 n. 11 (1995) (Thomas, J., dissenting) ("The Ineligibility Clause was intended to guard against corruption."); Freytag v. IRS, 501 U.S. 868, 904 (1991) (Scalia, J., concurring in part and concurring in the judgment) ("The Framers' experience with postrevolutionary self-government had taught them that combining the power to create offices with file power to appoint officers was a recipe for legislative corruption.").
84. See Notes of James Madison, supra note 23, at 284 (recording Pinckney's proposal to strike this whole thing as degrading, and Mason ironically agreeing, saying it will help create an "exotic corruption" of the American public).
85. Notes of Robert Yates, supra note 29, at 380-81 (quoting a statement of Mason).
86. This fear finds its modern counterpart in representatives who ignore their duties with promises of future jobs in the lobbying industry. See Zephyr Teachout, What Would Madison Do?: Lobbying, Revolving Doors, and the Founding Fathers, DEMOCRACY: J. IDEAS (forthcoming Winter 2009).
87. Notes of Robert Yates, supra note 29, at 379 (quoting Butler).
88. See id. at 382 ("[W]hen a member takes his seat, he should vacate every other office.") (quoting Hamilton).
89. James McHenry, Speech Before the Maryland House of Delegates (Nov. 29, 1787), in 3 CONVENTION RECORDS, SUPRA NOTE 17, AT 144, 148.
90. U.S. CONST, art. I, § 6, cl. 2.
91. DAVID ROBERTSON, DEBATES AND OTHER PROCEEDINGS OF THE CONVENTION OF VIRGINIA 330 (2d ed. 1805) (1788) (recording the statement of Randolph).
92. See Letter from William Lee to Arthur Lee (Jan. 29, 1780), in 3 LETTERS OF WILLIAM LEE 774, 774 (Worthington Chauncey Ford ed., 1968).
93. STACY SCHIFF, A GREAT IMPROVISATION: FRANKLIN, FRANCE, AND THE BIRTH OF AMERICA 391 (2005).
94. See NOONAN, supra note 57, at 431. Noonan mistakenly identifies the box as Franklin's instead of as Lee's. While this is a small mistake, it has been widely repeated because it is in Noonan's book.
95. Notes of James Madison (July 5, 1787), in 1 Convention Records, supra note 17, at 526, 530 (quoting Morris).
96. Notes of James Madison, supra note 62, at 268.
97. See ROBERTSON, supra note 91, at 331-32.
98. U.S. CONST, art. I, § 9, cl. 8.
99. THE FEDERALIST No. 41 (James Madison), supra note 14, at 259-60.
100. id.
101. Id. at 260. Election seems like a much better limitation of corruption than, say, hereditary government. The republican tradition, however, sets itself up not only in opposition to monarchy, but also to direct voting. The Romans-with whom they were intimately familiar-and the Greeks each had systems of direct voting and made elaborate efforts to stem corruption. In the Greek democracy, electors were decided by lot on the day of their right to vote in order to limit the possibility that they would have enough time in which to be corrupted. See ROBIN WATERFIELD, ATHENS: A HISTORY 51 (2004).
102. Notes of James Madison (July 19, 1787), in 2 CONVENTION RECORDS, supra note 17, at 50, 59 ("Mr. Williamson was for 6 years. The expence will be considerable & ought not to be unnecessarily repeated. If the Elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted.").
103. THE FEDERALIST No. 66 (Alexander Hamilton), supra note 14, at 406-07.
104. id.
105. Id. Even though Hamilton is arguing for the election, he has a hint of reservation-he does not predict that the proofs will be satisfactory, rather introducing a small note of doubt. Even while defending representative government, Hamilton has a dark view of it and defends it by arguing that the natural non-responsibility-taking tendencies of Congress will lead it to, at least, continuously sacrifice its corrupters.
106. Notes of Alexander Hamilton (June 18, 1787), in 1 CONVENTION RECORDS, supra note 17, at 304, 310.
107. Notes of James Madison, supra note 102, at 52.
108. See Notes of James Madison (Sept. 12, 1787), in 2 CONVENTION RECORDS, supra note 17, at 585, 586.
109. Id. (quoting Gerry).
110. There are some sections that occasioned less debate on the convention floor than might be expected but led to objections afterward. Article I, Section 6, which allows for Senators and Representatives to fix dieir own salaries, was heavily debated in the Virginia legislature because people were concerned that they would simply fix higher and higher salaries for themselves. See Patrick Henry, Remarks During the Virginia Debate on the Adoption of the Federal Constitution (June 14, 1788), in 3 STATE RATIFICATION DEBATES, supra note 34, at 368, 368.
111. Despite these hopes, the prohibition in the Congressional Emoluments Clause has not been given serious weight. See NOONAN, supra note 57, at 433 (referring to the prohibition on emoluments as "[a] distinctly modest barrier to corruption of Congress" that was "eventually flouted with impunity by Senator Hugo Black and President Franklin Roosevelt, who appointed Black to the Supreme Court after the Justices' emoluments had been increased while Black was a legislator"); Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 STAN. L. REV. 907, 908 (1994) (suggesting that the Congressional Emoluments Clause is now seen as merely a nuisance).
112. Notes of James Madison supra note 102, at 52 ("The check provided in the 2d. branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1st. branch to legislate too much to run into projects of paper money and similar expedients.") (quoting Morris).
113. Notes of James Madison (July 18, 1787), in 2 CONVENTION RECORDS, supra note 17, at 40, 43.
114. ANNALS OF CONG. 905 (statement of Rep. Findley, Jan. 23, 1798).
115. Id.
116. Notes of Madison (Sept. 6, 1787), in 2 CONVENTION RECORDS, supra note 17, at 521, 524-25.
117. See THE FEDERALIST NO. 76 (Alexander Hamilton) (defending the appointment power of the President against accusations that he could corrupt the Senate).
118. See supra Part II.B. 2.
119. Charles Pinckney, Remarks During the South Carolina Debate on the Adoption of the Federal Constitution (Jan. 16, 1788), in 4 STATE RATIFICATION DEBATES, supra note 34, at 264-65.
120. Notes of James Madison (Sept. 8, 1787), in 2 CONVENTION RECORDS, supra note 17, at 547, 547-48.
121. Id. at 548.
122. id. at 549.
123. Notes of James Madison, supra note 63, at 66 (noting that it is "within the compass of probable events" that an executive would be corrupted, hence the importance of impeachments); see also Notes of James Madison (July 24, 1787), in 2 CONVENTION RECORDS, supra note 17, at 99, 103 (recording Morris's contention that presidential terms of "any duration" require the availability of impeachment).
124. 3 CONVENTION RECORDS, supra note 17, at 595, 600 (laying out the Pinckney Plan, which provided for impeachment for "Treason, bribery, or Corruption").
125. Notes of James Madison, supra note 120, at 550.
126. Id.
127. Id. at 551.
128. See id. at 551-52 (recounting the debate over the rule of the legislature in the impeachment process.).
129. See Notes of James Madison, supra note 116, at 524 (noting that the president would be "continually tempted by this constitutional disqualification" to abuse the presidential powers "to subvert the Government").
130. See Notes of James Madison (Sept. 7, 1787), in 2 CONVENTION RECORDS, supra note 17, at 535, 536. Madison argued that it is "an evil that so small a number at any rate should be authorized, to elect. Corruption would be gready facilitated by it." Id.
131. Notes of James Madison (Sept. 4, 1787), in 2 CONVENTION RECORDS, supra note 17, at 496, 500 (quoting Morris).
132. See Notes of James Madison, supra note 116, at 528.
133. See id.
134. Rufus King, Speech in the Senate of the United States (Mar. 18, 1824), in 3 CONVENTION RECORDS, supra note 17, at 461.
135. Notes of James Madison (Aug. 27, 1787), in 2 CONVENTION RECORDS, supra note 17, at 426, 429 (quoting Wilson).
136. See, e.g., Notes of James Madison (June 5, 1787), in 1 CONVENTION RECORDS, supra note 17, at 119, 120 ("Mr. Madison disliked the election of the Judges by the Legislature or any numerous body.... It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment.").
137. Id. at 119 ("Mr. Wilson opposed the appointmt [of Judges by the] national Legisl: Experience shewed the impropriety of such appointmts. by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences." (alteration in original)).
138. NOONAN, supra note 57, at 429. Noonan notes that, at the Convention, little attention was paid to Article III corruption because "corrupt judges had not been on the revolutionists mind; corruption by the executive had." Id.
139. Notes of James Madison, supra note 108, at 587.
140. Notes of James Madison, supra note 136, at 124 ("What was to be done after improper Verdicts in State tribunals obtained under the biased [sic] directions of a dependent Judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. To order a new trial at the supreme bar would oblige the parties to bring up their witnesses, tho' ever so distant from the seat of the Court. An effective Judiciary establishment, commensurate to the legislative authority, was essential. A Government without a proper Executive & Judiciary would be the mere trunk of a body, without arms or legs to act or move.").
141. Notes of Madison, supra note 60, at 254 ("Theory & practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single House there is no check, but the inadequate one, of the virtue & good sense of those who compose it.") (quoting Wilson).
142. Id. at 254 (quoting Wilson).
143. tHE FEDERALIST No. 55 (James Madison), supra note 14, at 345.
144. THE FEDERALIST No. 62 (James Madison), supra note 14, at 378.
145. Id.
146. Id.
147. Id.
148. See, e.g., Notes of James Madison (June 26, 1787), in 1 CONVENTION RECORDS, supra note 17, at 421, 422; Notes of James Madison, supra note 113, at 43 (recording statement of Sherman).
149. See supra Part I.B.I.
150. THE FEDERALIST No. 68 (Alexander Hamilton), supra note 14, at 413.
151. Most famously, Madison argued that a large, confederate republic was less likely to lead to faction and instability than a small one. See THE FEDERALIST No. 10 (James Madison), supra note 14, at 83.
152. THE FEDERALIST No. 63 (James Madison), supra note 14, at 388.
153. id.
154. Id.
155. TEACHOUT, supra note 1.
156. My ultimate argument depends on corruption having tractable meaning, but not a criminal-law-like definition. Like privacy, or separation of powers, I argue mat corruption has constitutional weight-and like those concepts, the meaning is contextual and changes over time.
157. Clearly, these two were related. As Peter Euben writes, the word corruption implies an ideal of integrity-or in the case of society, the ideal of a good society. Corruption connotes moral decay, infection, and ultimately a loss of integrity and identity. "A people degenerates when it sinks to a lower standard of behavior than the generations which preceded it. This decline signals an enfeeblement of the culture's animating principles and a departure from the highest ideals of its collective life." Euben, supra note 53, at 222. The general enervating corruption was the metaphor upon which political corruption was built.
158. WOOD, supra note 25, at 32.
159. Colonel Mason complained: "It is curious to remark the different language held at different times. At one moment we are told that the Legislature is entided to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue & corruption, and cannot be trusted at all." Notes of James Madison (July 17, 1787), supra note 39, at 31.
160. This is not an Article about all the possible visions or understandings of corruption. For readers interested in exploring that further, Laura Underkuffler has written a wonderful paper categorizing (and gently eviscerating) modern efforts to craft a definition of corruption scrubbed of its moral roots. Laura S. Underkuffler, Captured by Evil: The Idea of Corruption in Law (Duke Law Sch. Legal Studies Research Series, Research Paper No. 83, 2005), available at http://ssrn.com/abstract=820249.
161. I would argue they are obvious to the modern public, which continues to use corruption in a moral sense, and happily applies it to elites, like lobbyists, who are not themselves elected officials.
162. MONTESQUIEU, supra note 44, at 21-23.
163. While this may sound like a tricky distinction, we make similar distinctions all the time when we judge how people care for their family members. Consider two men, each caring for mothers with Alzheimer's disease. On the surface, we notice that both visit regularly, both bring stories and attention, and both express love to their mothers. But one man, if we were to honesdy interrogate him, would say, "I do it for what I will get in her will. And I don't want people to accuse me. I love her, but the reason I do it is for myself." The other would say, "I love my mother, and I want her to have some joy in her life. Of course I also do it because it makes me feel good, but I genuinely care for her." These are real differences in attitude that we recognize, discuss, and feel like we can differentiate between. We also would expect that, over time, the man who is instrumental in his care will not care as well. The Framers had a similarly concrete idea about corruption and what was necessary to be a public officer.
164. Robert G. Natelson, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. KAN. L. REV. 1, 48 (2003).
165. The popular understanding of corruption retains this feature. For example, campaign contributions are regularly called "legal bribery,"
166. Notes of James Madison, supra note 102, at 52 ("The check provided in the 2d. branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1st. branch to legislate too much to run into projects of paper money & similar expedients.") (quoting Morris).
167. See id.
168. Cf. Underkuffler, supra note 160. Professor Underkuffler's description of the essential immorality of corruption would make much more sense to the Framers than most of her contemporaries. She argues that looking for the essence of corruption in the violation of law, breach of duty, betrayal of trust, poor economic outcomes, and the like, will always feel viscerally unsatisfactory if, in the end, the explicitly moral core of corruption is not recognized.
169. THE FEDERALIST NO. 55 (James Madison), supra note 14, at 345.
170. Notes of James Madison, supra note 102, at 52.
171. THE FEDERALIST NO. 10 (James Madison), supra note 14, at 79.
172. See Trist v. Child, 88 U.S. (21 Wall.) 441, 450 (1875) ("[T]here is a correlative duty resting upon the citizen. In his intercourse with those in authority, whether executive or legislative, touching the performance of their functions, he is bound to exhibit truth, frankness, and integrity. Any departure from the line of rectitude in such cases, is not only bad in morals, but involves a public wrong.").
173. BAILYN, supra note 19, at 379.
174. MONTESQUIEU, supra note 44, at 23 (emphasis added).
175. Id. at 14.
176. The classic example of this is Athens, as described by Thucydides. With military strength and great political skill it managed to destroy itself in a matter of decades as the moral/public fiber of its citizens was weakened. They came to seek luxury and success instead of the good of the state, and in their greed they corrupted themselves, overreached, became sophists (corrupted their language) and lost their empire. See Euben, supra note 53, at 224-26.
177. There is a fascinating case, which I discuss in my book, about the development of the term in which the Supreme Court holds, in the late eighteenth century, that lobbying is against the public policy of the United States for exactly this reason. See TEACNOUT, supra note 1; see also Trist, 88 U.S. (21 Wall.) at 450 n. 17 (citing Montesquieu for authority).
178. Letter from George Washington to the Marquis de Lafayette (Feb. 7, 1788), in THE WRITINGS OF GEORGE WASHINGTON 291 (Lawrence Boyd Evans ed., 1908).
179. James Madison, Remarks During the Virginia Debate on the Adoption of the Federal Constitution (June 20, 1788), n 3 STATE R ATIFICATION DEBATES supra note 34, at 531, 537. ee generally BAILYN, supra note 19, at 367-90. Some contemporaries rejected the importance of virtue wholesale. See id. at 390-93.
180. See Notes of Rufus King (June 1, 1787), in 1 CONVENTION RECORDS, supra note 17, at 70, 71; Notes of James Madison (June 1, 1787), in 1 CONVENTION RECORDS, supra note 17, at 64, 69.
181. NICCOLO MACHIAVELLI, DISCOURSES OF LIVY 298-300 (Oxford Univ. Press 1997) (1531).
182. Notes of James Madison, supra note 102, at 52.
183. THE FEDERALIST NO. 75 (Alexander Hamilton), supra note 14, at 451.
184. BAILYN, supra note 19, at 368.
185. Id. at 369.
186. See, e.g., Notes of Robert Yates, supra note 29, at 380 (quoting Mason).
187. As a side note, I would suggest that Madison's insights about faction-which have traveled so far-are famous in part because of their intelligence and originality. The corruption concern was not an original one-it was already thousands of years old-and so historians, while noting it, may tend to linger less on it perhaps because there is less original to say about it. One can look at any modern index to The Federalist Papers and find "faction" well-indexed and "corruption" not indexed at all. See, e.g., Rossiter, supra note 45. This is not because faction is more discussed, but because we have attached Madison to faction in our minds and so tag him with our current understanding of him, instead of his more ranging (and corruption-focused) approach toward problems of self-government.
188. WOOD, supra note 25, at 32.
189. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM-IV-TR (4th ed. 2000).
190. TEACHOUT, supra note 1.
191. 424 U.S. 1 (1976).
192. The confusion is so great that "[a]t times even passages in a single opinion seem to contradict each other." Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 14 CONST. COMMENT. 127, 130 (1997).
193. Buckley, 424 U.S. at 58, 84.
194. Id. at 45.
195. Id. at 58.
196. See FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2675 (Scalia, J., concurring) (2007).
197. Randall v. Sorrell, 126 S. Ct. 2479, 2490 (2006) (holding that Buckley should be upheld because of stare decisis); Colo. Republican Fed. Campaign Comm. v. FEC (Colorado I), 518 U.S. 604, 618 (1996). Justice Breyer's two opinions in the area have the least content of almost any Justice's opinions. The reliance of his Randall v. Sorrell decision on stare decisis is a little surprising; in campaign finance law, stare decisis is a tough sell-there is little widespread reliance, and the law changes constantly. His opinion in Colorado I (joined by Justices Souter and O'Connor) was based on the premise that the Court need not engage a constitutional question because the campaign effort at issue was an independent expenditure; the decision was then completely controlled by precedent. In two opportunities to articulate a theory of corruption in the law, he simply chose not to engage, but to defer to precedent.
198. Burke, supra note 192, at 128.
199. Dennis F. Thompson, Two Concepts of Corruption: Making Campaigns Safe for Democracy, 73 GEO. WASH. L. REV. 1036, 1036 (2005); accord Michael C. Dorf, The Supreme Court's Extraordinary Campaign Finance Reform Oral Argument, FINDLAW'S WRIT, Sept. 7, 2003, http://writ.news.findlaw.com/dorf/20030917.html (also calling Buckley "the Court's original campaign finance decision"); see also Justin M. Sadowsky, The Transparency Myth: A Conceptual Approach to Corruption and the Impact of Mandatory Disclosure Laws, 4 CONN. PUB. INT. L.J. 308, 309 (observing that corruption is important to understand because of the line of cases beginning with Buckley).
200. See, e.g., Ex Parte Yarbrough, 110 U.S. 651 (1884); Trist v. Child, 88 U.S. (21 Wall.) 441 (1874); Bartle v. Nutt, 29 U.S. (4 Pet.) 184 (1830); Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
201. Buckley v. Valeo, 424 U.S. 1, 26 (1976).
202. Id. at 26-27.
203. Id. at 47.
204. see, e.g., United States v. Classic, 313 U.S. 299, 328 (1941) (Douglas, J., dissenting); Newberry v. United States, 256 U.S. 232, 275 (1921) (Pitney, J., concurring in part).
205. Buckley, 424 U.S. at 27 (quoting Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 565 (1973)).
206. Id. at 26.
207. id. at 29.
208. Id. at 96.
209. d. at 58 (emphasis added).
210. 494 U.S. 652, 685 (1990) (Scalia, J., dissenting).
211. In Burke's analysis of the concept of corruption in campaign finance law, he concludes that there are three different strands (quid pro quo, monetary influence, distortion). See Burke, supra note 192, at 149.
212. Moreover, there is not much consistently within these clusters. The idea of corruption as the creation of political debts and the theory that corruption is quid pro quo are quite similar. But words have consequences, and a case law built around "quid pro quo" will be different than a case law build around "creation of political debts."
213. SeeAustin, 494 U.S at 685 (1990) (Scalia, J., dissenting) (arguing against any definition of corruption other than "as English speakers understand the term").
214. FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2672 (2007).
215. The bribery model and the founder's corruption are related, but they are mirror images of each other. In the bribery model, "corruption" is the illegal or immoral exchange-the official taking a kickback for granting a government contract to an inferior contractor. The fact that officials in his position appear to be narcissistic, ambitious, and self-serving is a clue to the possibility that that corruption might occur. In the founders' model, the kickback or bribe is evidence of corruption, but not the corruption itself. The thing itself is the attitude toward the public interest; the mind, not the act, is corrupt. (An action is not corrupt if no action is taken, but the mode of action, not the fact of it, defines corruption.)
216. 454 U.S. 290 (1981).
217. Id. at 296-97 (quoting Buckley v. Valeo, 424 U.S. 1, 26-27 (1976)).
218. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 423 (2000) (Scalia, J., dissenting) ("The majority today, by contrast, separates 'corruption' from its quid pro quo roots and gives it a new, far-reaching (and speech-suppressing) definition.").
219. McConnell v. FEC, 540 U.S. 93, 292 (2003) (Thomas, J., concurring in part and dissenting in part).
220. Colo. Republican Fed. Campaign Comm. v. FEC (Colorado I), 518 U.S. 604, 643 (1996) (Thomas, J., dissenting).
221. See Daniel Hays Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLAL. Rev. 784 (1985).
222. See generally id.
223. 470 U.S. 480, 497.
224. see Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 659-60 (1990).
225. See, e.g., Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 203 (1999) ("We note, furthermore, that ballot initiatives do not involve the risk of 'quid pro quo' corruption present when money is paid to, or for, candidates."); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 356 (1995) ("Disclosure of expenditures lessens the risk that individuals will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office.).
226. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 768, 788 n. 26 (1978). For other invocations of this phrase, see FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2692 n. 7 (2007) (Souter, J., dissenting); FEC v. Nat'l Right to Work Coram, 459 U.S. 197, 208 (1982) (quoting Bellotti).
227. The Bellotti court held that debts would not accrue in a referendum. A candidate would not feel indebted to a corporation that spent money direcdy on a referendum, so you would not see candidates pandering to major monied interests. "The risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue." 435 U.S. at 790 (citations omitted).
228. See, e.g., FEC v. Beaumont, 539 U.S. 146, 155-56 (2003) (quoting FEC v. Colo. Republican Fed. Campaign Comm. (ColoradoII), 533 U.S. 431, 441 (2001) (explaining that corruption is larger than quid pro quo); Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 389 (2000) (discussing concerns as being larger than quid pro quo).
229. Colo. Republican Fed. Campaign Comm. v. FEC (Colorado I), 518 U.S. 604, 634 (Thomas, J., dissenting).
230. See McConnell v. FEC, 540 U.S. 93, 259 (2003) (Scalia, J., dissenting) ("Any quid pro quo agreement for votes would of course violate criminal law, and actual payoff votes have not even been claimed by those favoring restrictions on corporate speech."); id. at 267 (Thomas, J., dissenting) ("[A]n effective bribery law would deter actual quid pro quo....").
231. Wis. Right to Life, Inc., 127 S. Ct. at 2672.
232. Id. at 2678 (Scalia, J., concurring).
233. McConnell, 540 U.S. at 267 (Thomas, J., dissenting).
234. 479U.S. 238 (1986).
235. Id. at 256-57.
236. See id. at 257-59.
237. Id. at 259.
238. 539 U.S. at 146.
239. 127 S. Ct. 2652.
240. The majority in McConnell concludes that "undue influence" occurs when "officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder," McConnell, 540 U.S. at 153, whereas the dissent claims that undue influence is quid pro quo.
241. See, e.g., Dworkin, supra note 4 (arguing that corruption is a problem of inequality); Strauss, supra note 4, at 1370 (same).
242. Strauss, supra note 4, at 1370.
243. The difference between the Framers' model and the inequality model might be best explained by reference to Dr. Suess. Imagine two machines. The Politics Machine of Inequality has a chute. People walk up to the chute and throw in dollar bills along with a slip of paper with a request on them. The machine takes the dollar bills and folds them into the shape of the requested item, and the person who walked up to the machine walks away with as many widgets as he put in dollars. The poor people get few widgets, and the rich people get many. The machine just puts out what it gets in. I imagine the Framers drawing something more like a Jekyll and Hyde Machine, a process more alchemical than mechanical. As people put dollars into this machine, they are dissolved into a big vat full of water, which gets dumped first into the glasses at a long table with all the members of Congress at it. From time to time the person turns and takes a drink from the glasses of water. The rest of the vat gets dumped into the lake. As the members drink more of the water, they gradually turn from Jekyll into Hyde, and start using every opportunity to enrich themselves and get away with what they can-the same occurs with the citizens.
244. In the Framers' model, money tempts and warps the mind, actually transforming the structure of thought, which then leads to self-serving behavior. It plays a more alchemical than mechanical role in politics. They would not agree with Strauss that if we could remove inequality, we would remove corruption or our concern with corruption. An equal polity with all self-serving leaders and citizens would not be attractive to them.
245. The particular kind of corporate form available now was not, clearly, extant in 1787, but there are many themes in their conversations that could be brought to bear on the discussion of corporate power in political life. In particular, their obsession with foreign influence derived from a fear that foreign powers and individuals had no basic investment in the well-being of the country. A similar argument about the fundamental "foreign" (as in non-patriotic) structure of the corporation could be made, inasmuch as its legal loyalties necessarily exclude patriotism. Furthermore, their obsession with dependence, and the kind of dependence that is created when large monied interests choose to hire and please elites, is directly pertinent to the corporate discussion.
246. 494 U.S. 652 (1990).
247. Id. at 660.
248. FEC v. Beaumont, 539 U.S. 146, 154-55 (2003); McConnell v. FEC, 540 U.S. 93, 205 (2003) ("We have repeatedly sustained legislation aimed at 'the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.' Moreover, recent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against 'circumvention of [valid] contribution limits.'"); see also Rennee v. Geary, 501 U.S. 312, 348-49 (1991) (Marshall, J., dissenting). Chief Justice Roberts cites the phrase in order to limit it, and Scalia cites it in order to mock it in FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2672, 2678 (2007).
249. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 789 (1978).
250. Id.
251. Buckley v. Valeo, 424 U.S. 1, 27 (1976); see also Nixon v. Shrink Mo. Gov'tPAC, 528 U.S. 377, 389 (2000) (quoting Buckley).
252. Shrink Mo. Gov't PAC, 528 U.S. at 390 (quoting United States v. Miss. Valley Generating Co., 364 U.S. 520, 562, (1961)).
253. One of the delightful ironies of this line of thinking is that it has been used to uphold disclosure requirements, which may deter certain kinds of fraud, but may also create a more cynical public that is precisely aware of who is paying the piper. To be an effective disinfectant, sunlight must necessarily reveal all kinds of spots.
254. For a critical review of this entire doctrine, see Nathaniel Persily and Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. PA. L. REV. 119 (2004).
255. FEC v. Conservative PAC, 470 U.S. 480, 497 (1985).
256. McConnell v. FEC, 540 U.S. 93, 145 (2003).
257. FEC v. Colo. Republican Fed. Campaign Comm. (Colorado I), 518 U.S. 604, 441 (1996).
258. McConnell, 540 U.S. at 153.
259. Nat'l Conservative PAC, 470 U.S. at 497.
260. See, e.g., Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 695 (Kennedy, J., dissenting).
261. Euben, supra note 53.
262. Id. at 231-32.
263. I would argue that the separation-of-powers principle itself has become unbound from its initial reason-corruption-and that this unhinging has been problematic. But you needn't be convinced that separation-of-powers doctrine ought be rewritten in order to accept the anti-corruption principle argument.
264. See, e.g., Cass R. Sunstein, The Idea of a Usable Past, 95 COLUM. L. REV. 601 (1995).
265. Buckley v. Valeo, 424 U.S 1 (1976).
266. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
267. Nixon Shrink Mo. Gov't PAC, 528 U.S. 377, 411 (2001) (Thomas, J., dissenting) (citing Madison on liberty); id. at 425 n. 9 (citing Madison on factions).
268. 514 U.S. 334 (1995).
269. Id. at 267-69.
270. 435 U.S. 765 (1978).
271. Id. at 795 n. 34.
272. 501 U.S. 868, 906 (1991) (Scalia, J., concurring in part).
273. Id at 904. Justice Scalia further argues: The Court apparendy thinks that the Appointments Clause was designed to check executive despotism. This is not what we said in Buckley v. Valeo, and it is quite simply contrary to historical fact. The quotations on which the Court relies describe abuses by the unelected royal governors and the Crown, who possessed the power to create and fill offices.... The Framers followed the lead of these later Constitutions [which granted appointment power to the executive]. The Appointments Clause is, intentionally and self-evidently, a limitation on Congress. Id. at 904 n. 4.
274. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 860 n. 11 (1995) (Thomas, J., dissenting).
275. Id. at 894-95.
276. Ernest A. Young, Alden v. Maine and the Jurisprudence of Structure, 41 WM. & MARY. L. REV. 1601, 1661 (2000).
277. CHARLES BLACK, Inference from Structure: The Neglected Method, in BLACK, supra note 7, at 3.
278. Id. at 13.
279. Id.
280. Id.at 22.
281. Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934).
282. J. Harvie Wilkinson III, Our Structural Constitution, 104 COLUM. L. REV. 1687, 1687 (2004). 283 Alden v. Maine, 527 U.S. 706, 807 (1999) (Souter, J., dissenting). 284 See, e.g., Clinton v. City of New York, 524 U.S. 417, 439 (1998); Mistretta v. United States, 488 U.S. 361, 412 (1989) (holding that the Constitution's structural protections did not prohibit Congress from delegating the task of formulating sentencing guidelines to the Sentencing Commission); Morrison v. Olson, 487 U.S. 654, 674 (1988) (noting that "the history of the [Appointments] Clause provides no support for appellees' position" that the appointment of an independent counsel, pursuant to the Ethics in Government Act of 1978, violated the Appointments Clause and the principle of separation of powers); Bowsher v. Synar, 478 U.S. 714, 736 (1986) (striking down the Gramm-Rudman-Hollings Act's balanced budget procedure); INS v. Chadha, 462 U.S. 919, 959 (1983) (striking down a legislative veto); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88 (1982) (striking down a provision creating non-Article HI bankruptcy courts); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588-89 (1952) (invalidating an executive order authorizing the Secretary of Commerce to seize steel mills).
283. E. Donald Elliott, Why Our Separation of Powers Jurisprudence Is So Abysmal, 57 GEO. WASH. L. REV. 506, 508 (1989). Elliott further writes: The Constitutional Convention debated and voted on principles of constitutional structure, as reflected in a series of resolutions.... There is no question that we can, and should, draw meaning from the structural choices made by the Framers, as well as the choices made by others throughout our subsequent constitutional history, but we might as well make our constitutional fate turn on the entrails of birds so as to entrust the constitutionality of innovations in governmental structure to whether Gouverneur Morris and other members of the "Committee on Style" thought to put a particular word or phrase into their draft of the Constitution. Id. at 524.
284. Youngstown, 343 U.S. at 635 (Jackson, J., concurring). Granted, Jackson writes this set of sentences after having dismissed the practice of originalism as futile and strange. Id. at 634 ("Just what our forefathers envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoh."). But this passage, anthropomorphizing the Constitution, id. at 635 ("[w]hile [it] diffuses... [it] contemplates... [it] enjoins"), is hard to make sense of without at least some reference to the Framers who created "it." The Constitution does not "enjoin" or "contemplate." Jackson sneaks a kind of loose originalism in through the back door-appropriately so, I would argue, because structural glosses require a general understanding of motivation.
285. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 355 (2004) (Breyer, J., dissenting) (discussing potential "democratic harm" resulting from "purely political 'gerrymandering'" of district boundaries).
286. This approach can provide support for the anti-entrenchment arguments of Richard Pildes and others. See, e.g., Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998).
287. Ex Parte Yarbrough, 110 U.S. 651, 657-58 (1884).
288. See id. at 658.
289. Id.
290. Id.
291. Yarbrough has never been overturned. See supra text accompanying note 289.
292. 88 U.S. 441 (1875).
293. THE FEDERALIST NO. 81 (Alexander Hamilton), supra note 14, at 487; see also Seminole Tribe of Fl. v. Florida, 517 U.S. 44, 54 (1996); Alden v. Maine, 527 U.S. 706, 729 (1999).
294. See generally Young, supra note 276, at 1616-24 (discussing the Alden Court's forthright abandonment of textualism in state sovereign immunity cases).
295. Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1233 (1995).
296. U.S. CONST, amend. I.
297. TEACHOUT, supra note 1.
298. See, e.g., Trist v. Child, 88 U.S. (21 Wall.) 441, 450 (1875). Citizens' virtue was the "foundation of a republic," the Court explained. Citizens have an important public office to fill. "They are at once sovereigns and subjects." While public servants are obliged to be "animated in the discharge of their duties solely by considerations of right, justice, and the public good," a citizen has a "correlative duty." A citizen, according to the Court, is "bound to exhibit truth, frankness, and integrity" in his interactions "with those in authority." "Any departure from the line of rectitude in such cases, is not only bad in morals, but involves a public wrong." Id.
299. Randall v. Sorrell, 126 S. Ct. 2479, 2511 (2006) (Stevens, J., dissenting). Justice Stevens stated: I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities. I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress' authority. And they surely would not have expected judges to interfere with the enforcement of expenditure limits that merely require candidates to budget their activities without imposing any restrictions whatsoever on what they may say in their speeches, debates, and interviews. Id.
300. The Court could use the opportunity to reconsider whether some campaign donations are themselves a form of corruption. Given how anxious the Framers were about Benjamin Franklin's miniature painting and Arthur Lee's snuffbox, one might well argue that the Constitution allows Congress to make campaign donations illegal, as another impermissible form of gift-giving. Closed cases might be given some room to be re-opened. Courts would give more deference to Congress's efforts to do whatever it could to protect the public servant inside every member of Congress. Justice William Douglas, in a 1941 dissent, argued for robust Congressional powers in limiting corruption in the electoral process. See United States v. Classic, 313 U.S. 299, 330 (1941) (Douglas, J., dissenting). He argued: The fact that a particular form of pollution has only an indirect effect on the final election is immaterial.... [T]he important consideration is that the Constitution should be interpreted broadly so as to give to the representatives of a free people abundant power to deal with all the exigencies of the electoral process.... [T]he Constitution should be read so as to give Congress an expansive implied power to place beyond the pale acts which, in their direct or indirect effect, impair the integrity of Congressional elections. For when corruption enters, the election is no longer free, the choice of the people is affected. Id. Justice Douglas argued that this view was essential to understanding the Constitution as an "instrument of government" that was "designed not only for contemporary needs but for the vicissitudes of time." Id. This Article follows Justice Douglas's dissent, and the author hopes that Justices yearning for more strength to bring to the corruption battle will find that the Framers have provided them a historical, textual ballast.
301. FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2689 (2007).
302. Id.
303. Id. at 2697.
304. Id.
305. Id. at 2704-05.