Political Corruption

ON POLITICAL CORRUPTION
Author(s): Samuel Issacharoff

Source: Harvard Law Review, Vol. 124, No. 1 (NOVEMBER 2010), pp. 118-142
Published by: The Harvard Law Review Association
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ON POLITICAL CORRUPTION
Samuel Issacharoff*
Lurking beneath the surface of all debates on campaign finance is a
visceral
over
revulsion
future
of state
leaders
for money.
groveling
The process of fundraising is demeaning to any claim of a higher call

ing in public
taints candidates,
and
service
policies,
donors,
and
any
one in proximity to this bleakest side of the electoral process. The in

tuition is that at some levelmoney must be corruptingof the political
process and that somethingmust be done to limit the role ofmoney in
the same logic appears
than more money, and
the cost of modern
electoral
In turn, and almost inescapably,

that process.
to lead to the belief that less money
is better
reform must
that successful
bring down
campaigning.
It is the logic of constrictingthe effectsofmoney that has defined
the modern
the Watergate
era of campaign
scandals
and
reform, an
finance
is now
completing
era
that began after

its fourth decade.1
Time and again, the impetus behind the reformefforthas been to de

press the amount ofmoney spent in campaigns and thereby limit the
associated
moral
extension
the cause
to those who
stain.
of campaign
to money and by
long as a stench attaches
to direct political outcomes with money,
If money
finance reform takes the high road.
So
seek
be the root of all evil, reducing the amount ofmoney in the system is
the natural conclusion.
With
these efforts at limitation
some speakers will be handicapped
comes
the inevitable
result
in expressing
their views and
that
that
the total quantity of speech will be curtailed. This point is not really
disputed by the reform camp, nor by the dissident wing of the Su
preme
The
Court.
oft-invoked
claim
that money
is not
speech,2
and
the corollary claim of the rightsof listenersnot to be bombarded with
excesses
from one side of the debate, both assume a right to limit the
or
of certain views, presumably
those that are overfunded
propagation
or both. For Justice Stevens and a persistent minority on
overexposed,
*
I am grateful
Law, New York University School of Law.
and
Briffault, Cynthia Estlund, Lucas
Issacharoff, Burt Neuborne,
Richard Pildes. Ari Giogo wer and Jeremy Peterman provided
research assistance.
indispensable
Research
and Max
E. Greenberg Research
by the Filomen D'Agostino
funding was provided
Reiss
Professor
for the comments
of Constitutional
of Richard
Fund.
1
Reform Act of 2002, Pub. L. No.

107-155, 116 Stat. 81 (codi
See, e.g., Bipartisan Campaign
fied in scattered sections of 2, 18, 28, 36, and 47 U.S.C.);
Federal Election Campaign
Act Amend
ments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (codified as amended
in scattered sections of 2, 5,
1 (1976) (per curiam).
18, 26, and 47 U.S.C.),
partially invalidated by Buckley v. Valeo, 424 U.S.
2
v. Shrink Mo. Gov't PAC, 528 U.S.
377, 398 (2000) (Stevens, J., concurring)
E.g., Nixon
("Money is property; it is not speech.").

20
COURT ?
THE SUPREME
COMMENTS
HQ
cov
lends constitutional
out of politics.
In turn,
in the system runs head
is not speech
the Court, the claim that money
er to the search for a way to squeeze money
this attempt to restrain the amount of money
long not only into the teeth of the constitutional concern of themajori
ty of the Court but also into the brute fact of the increased scale and
complexity
for contested
of campaigning
office.
The restrictiveaspect of the reformagenda is ultimately both its

strengthand its constitutional liability. Constitutionally, the effortto
limit the spending of political campaigns ? which, if not directly
?
a long line of
has occasioned
speech, is certainly "speechy enough"3
v. FEC5
United
but the latest in an
losses for reform,4 with Citizens
continues the troubled tradi
streak. Citizens United
almost unbroken
v.
con
in
of
divide
tion
Valeo6
the
between political
drawing
Buckley
tributions
and
expenditures.
The
former category
gives
rise to poten
tial regulation in order to combat a poorly specified corruption of the
political
process
a concept
to which
I return below ?
while
the lat
ter is seen as within the domain of expressive liberties that the state
not seek to restrict.
may
Academic commentaryhas long had a field day with the core ex
of Buckley.
The
rationale
system of
penditures-versus-contributions
runs
but unchecked
afoul of the
limited contributions
expenditures7
finance amendments,8
and is in
animating
logic of the 1974 campaign
fact a regulatory structure created by the Court. No rational regulato
ry systemwould seek to limit themanner by which money is supplied

to political
campaigns,
then leave unchecked
the demand
for that same
3 This
phrase was coined by Professor Richard Briffault during a panel discussion on Citizens
Professor of Legislation,
Columbia
Law Sch.,
Richard Briffault, Joseph P. Chamberlain
at the Brennan Center for Justice Symposium on Money, Politics & the Constitu
Panel Discussion
to Other Constitutional
the First Amendment
tion: Should We Look Beyond
(Mar. 27,
Principles?
United.
2010).
4
See, e.g., FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2671 (2007) (finding no compelling
v.
to regulate advertisement
that was neither express advocacy nor its equivalent); Randall
law limiting
230, 261-62 (2006) (plurality opinion) (finding Vermont's
Sorrell, 548 U.S.
campaign
Buckley, 424 U.S. at 57 (stating that "[t]he First
expenditures and contributions unconstitutional);
reason
denies government the power to determine that spending to promote one's political
views iswasteful, excessive, or unwise").
5
130 S. Ct. 876 (2010).
6
.
424 U.S.
7 See Frank
Campaign
Finance
Inside
238 (1992) (arguing for the interrela
J. Sorauf,
limits in the statutory Federal Election Campaign
Act
tion between contribution and expenditure
Amendment
scheme).
8 Federal
Election
(codified as amended
1.
Buckley, 424 U.S.
Campaign
in scattered
of 1974, Pub. L. No.

93-443, 88 Stat. 1263
of 2, 5, 18, 26, and 47 U.S.C.),
by
partially invalidated
Act Amendments
sections

120
HARVARD LAW REVIEW
In themeantime, majorities
money by leaving spending uncapped.9

drawn
from varying
voting
blocs
on
[Vol. 124:118
the Court
have
persistently
re
jected the Buckley divide between contributions and expenditures,

with only a division among the Justices on how to overturnBuckley
framed as doc
serving to shore up a frayed body of law.10 Whether
trinal incoherence11 or simply as a doctrinal approach
that proved un
over time,12 the Court's
workable
attempt to muddle
through the diffi
cult issue of money and politics has been subject to easy hits by critics.
I confess to being a participant
in looking at the failures of Court doc
in
articles
and the classroom
all
the
while
conceding
trine,
just how in
tractable
Karlan
the problem
a decade
ago,
seemed.
Indeed, writing with Professor Pamela
I concluded
that not much
could be done about
the pull of finance in elections, such that the perverse "hydraulic" of
finance reform efforts to

money finding its outlet13 led many campaign
the unaccountable
backfire and empower
tertiary actors (the political
action committees (PACs), the 527s, and all the rest) at the expense of
the candidates
foreWe
and
the People.14
parties
who
actually
had
to stand
for election
be
This Comment takes Citizens United as a launchingpoint to revisit

the central Buckley paradigm and examine what possibilities for
reform remain
9 See
COLUM.
to redress
the vulnerabilities
Justin A. Nelson, Note, The Supply and Demand

L. REV. 524, 527-32
(2000) (assessing the market
fundraising).
10 See Samuel
democracy
Issacharoff,
373 (3d ed. 2007)
Pamela
(providing
S. Karlan
of democracy
before
the
100
Finance Reform,
of Campaign
for heightened
campaign
pressures
H. Pildes,
The Law of
on the Court over Buckley); J. Ro
Framework, no Co
Campaign Finance
& Richard
the stable division
Saving Buckley: Creating a Stable

1078, 1091-92 (2010) (stating and citing support for the claim that nearly half the
Justices who have served since 1976 have opposed the Buckley framework).
11 Richard L.
is Dead, Long Live Buckley: The New Campaign Finance
Inco
Hasen, Buckley
v. Federal Election Commission,
herence o/McConnell
153 U. PA. L. REV. 31, 32 (2004).
12 Samuel Issacharoff & Pamela
S. Karlan, The Hydraulics
of Campaign Finance Reform, 77
tex.
L. Rev.
1705, 1736 (1999) ("A generation has shown us that the expenditure/contribution
bert Abraham,
L. rev.
Note,
lum.
of Buckley not only is conceptually flawed, but has not worked.").

There are many
recent doctrinal examples
the fragility of the contributions/expenditures
that demonstrate
divide.
Coal Co., 129 S. Ct. 2252, 2257, 2263-65 (2009) (combining con
See, e.g., Caperton v. A.T. Massey
to reach the conclusion that the total amount of support
tributions and independent expenditures
distinction
provided by an individual to a judicial candidate was enough to create an intolerably high proba
v. FEC,
limitations on ex
540 U.S. 93, 139 (2003) (upholding
bility of actual bias); McConnell
penditures of soft money on the ground that they "limit the source and individual amount of do
and that "prohibiting
the spending of soft money does not render them expenditure
Fed. Campaign
533 U.S. 431, 464 (2001) ("There
limitations"); FEC v. Colo. Republican
Comm.,
is no significant functional difference between a party's coordinated expenditure and a direct par
ty contribution to the candidate, and there is good reason to expect that a party's right of unli
nations"
attract increased contributions

coordinated
spending would
that kind of spending.").
13 See Issacharoff &
Karlan,
supra note 12, at 1708.
14 See id. at
1715-17.
mited
to parties
to finance

exactly
20
THE SUPREME
COURT ?
COMMENTS
121
powers of the purse. Beginning with Buckley, the Court recognized

that contributions had the unique potential to corrupt the political
process.15
the contribution
Revisiting
process
and
the concept
of cor
ruptionmay yield a better handle on what should be the sources of
concern
in the financing
of electoral
campaigns.
The
approach
taken
here is to start by examining the competing concerns that tend to get

references to political
then
corruption,
glossed over by underspecified
can be addressed
to see if the processes
of financing campaigns
both to
those concerns and to increasing the level of democratic
in
engagement
politics.
empower
this approach
Specifically,
democratic
participation
focuses on the mechanisms

used to
one by inducement,
in two ways:
one by prohibition. Counterintuitively, the inducement looks to in

crease
the amount
of contributions
to campaigns
to alleviate
some
of
the concerns over political corruption,while the prohibition seeks to

bar those in a position to distort public policy?
such as government
?
from providing
The
support to candidates'
campaigns.
on
rests
to
the
idea
that
the
threat
democratic
gov
argument
heavily
ernance may come from the emergence
of a "clientelisi"
relation be
contractors
tween elected officials and thosewho seek to profit from relations to
the state.
The inquirybegins inPart I with the contested terrainover the na
ture of political
in
Once
the Supreme Court announced
corruption.
that the concern over corruption or even its appearance
could
Buckley
justify limitationson money in politics, the race was on to fill the por
ous
concept of corruption with every conceivable

could muster. As with the elusive term "diversity"
advocates
meaning
con
after Buckley's
temporary,Regents of the University of California v. Bakke,16 a thin
reed transformed the lexicon of political debate.

Part II
the argument
that the corruption concern is really a concern
?
?
with ensuring public
rather than private
outputs from the poli
in the outputs
This
reorientation
toward
cymaking process.
corruption
to
of policymaking
effective
solutions
address
the financial
suggests
vulnerabilities
of democracy
with
the
Court's
strong consti
compatible
are
stance
in
in
tutional
Citizens United, which
discussed
Part III.
constitutional
advances
I. What
Is Corruption?
Prior to Citizens United, the Court had struggled between two

competing views of the sources of potential corruption as a result of
campaign finance. A fairly consistentmajority position, beginning in
Buckley v. Valeo itself,had focused on the potential for the corruption
of the candidates
15
16
Buckley
438 U.S.
v. Valeo,
who
424 U.S.
aimed
1, 27-30
to ingratiate
(1976)
themselves
to their wealthy
(per curiam).
265,314(1978).

HARVARD LAW REVIEW
122
[Vol.
124:118
corruption was defined in terms of actual quid pro quo

while allowing more expansively
for the potential dis
arrangements,
of such arrangements.17
The al
piriting influence of the appearance
ternative perspective
viewed corruption as a distortion of political out
comes as a result of the undue influence of wealth.18
On this view, the
source of corruption was
large expenditures
capturing the marketplace
backers.
Such
of political
ideas,19 and the corrupted entities were, at bottom, the vot
ers who could only succumb
to the entreaties of money.
This view de
as
a "derivative"
fines corruption poorly, and makes
corruption appear
in Austin
from
broader
societal
As
formulated
inequalities.20
problem
v. Michigan
squarely
State
Chamber
the distortion
of Commerce,21
of electoral outcomes
the only case to adopt

view of corruption,
the
inequities born of wealth are compounded by the unnatural ability of
corporations
to amass
wealth
more
readily
than
can
individuals.22
This argument logically extends to all disparities in electoral influence

in wealth.23
In doctrinal
by differences
run
across
of
the
broad
the Court's
ing majorities
occasioned
17 See First Nat'l

26-28;
Bank
see also McConnell
of Bos.
v. FEC,
terms, the prevail

finance
campaign
v. Bellotti, 435 U.S.

765, 790-92 (1978); Buckley, 424 U.S. at
540 U.S. 93, 121 (2003) (distinguishing "real" and "apparent"
quid pro quo corruption).

18 See FEC v. Wis.
Right to Life, Inc., 127 S. Ct. 2652, 2672 (2007) (plurality opinion); McCon
of "undue influ
nell, 540 U.S. at 143-45 (discussing the importance of prohibiting the appearance
539 U.S.
ence," id. at 144); FEC v. Beaumont,
146, 155 (2003) (noting that the state has an interest
in preventing "war-chest corruption"); Austin v. Mich.

State Chamber
of Commerce,
494 U.S. 652,
659-60 (1990) (expressing concern about the corrupting effect of "immense aggregations of wealth
with the help of the corporate form," id. at 660); see also Bellotti, 435 U.S.
that are accumulated
at 809 (White, J., dissenting)
(arguing that states have an interest in preventing institutions from
to acquire an unfair advantage
in the political process"); United States v. UAW,
"using . . .wealth
352 U.S.
feeling
567, 570 (1957) ("No less lively, although

that aggregated
influenced
capital unduly
slower
politics,
to evoke federal action, was

an influence not stopping
popular
short of
corruption.").
19
Austin, 494 U.S. at 659.
20 David
A. Strauss, Corruption, Equality,
and Campaign
Finance
L.
Reform, 94 colum.
Rev.
1369,1370(1994).
21
494 U.S. 652.
22 See id. at 660
("[T]he unique state-conferred corporate structure that facilitates the amass
see also FEC
v. Colo.
the limit on independent expenditures.");
ing of large treasuries warrants
Fed. Campaign
533 U.S. 431, 447 (2001) (focusing on expenditures by politi
Republican
Comm.,
cal parties providing a path to circumvent contribution limits).
23 See Owen
of Free
M. Fiss, The
state restriction
Irony
Speech
4 (1996) (advocating
of speech by some and subsidies of others to equalize access to political discourse); David
Cole,
First Amendment
Antitrust: The End of Laissez-F aire in Campaign

236, 237 (1991) (framing Austin as premised on the idea
threatens the free marketplace
of ideas by giving certain voices
rev.
L. & pol'y
9 yale
Finance,
that "[f]ree market
capitalism
inordinate influence"); Ronald
The Curse of American Politics, N.y. rev.

Oct. 17, 1996, at 19, 23 ("[W]hen
Dworkin,
books,
wealth
is unfairly distributed and money dominates politics . . . [voters] are not equal in their own
the attention of others for their own candidates,
ability to command
interests, and convictions.").
run into the teeth of Buckley:

"the concept that government may restrict the
arguments
of some elements of our society in order to enhance the relative voice of others is wholly
424 U.S. at 48-49.
foreign to the First Amendment,"
These
speech

20
COURT ?
THE SUPREME
COMMENTS
123
decisions invoked the libertyprotections of the First Amendment to

resist limitations on expression.24
contrast, the animating
logic was
on the political process.25
For
the dissenters
the equality
in these cases, by
of democracy
protections
In the view of a fairlyconsistentmajority of the Court, the key to
the mechanisms
the surreptitious deal that bypasses
corruption became
of
fur
The
silent
fear
such
of political
arrangements
accountability.
to posit that "[o]f almost equal concern as the
the Court
ther allowed
is the impact of the ap
danger of actual quid pro quo arrangements
of the oppor
from
of corruption
pearance
public awareness
stemming
But all such arrangements
tunities for abuse."26
require a conspira
torial agreement willfully to undermine
fastened on the distinction
the Court
electoral
between
accountability.
Thus,
and un
coordinated
coordinated activity in the electoral context as the defining line for
of prearrange
"the absence
be regulated:
to the
the value of the expenditure
undermines
will
be
that
the
alleviates
and
danger
thereby
expenditures
candidate,
as
a
from
the
candi
commitments
for
improper
given
quid pro quo
v. Bellotti28
Bank
date."27 Most
of Boston
clearly, in First National
what
ment
could
deemed
Buckley
and coordination
the Court held that a banking corporation could not be prohibited

from spendingmoney in opposition to a ballot initiativebecause such
initiativesdo not involve candidates and there could accordingly be no
risk of any quid pro quo corruption.29Over JusticeWhite's dissent on
the undue
influence
wielded
by
corporations,
Justice
Powell
cham
24 The
strongest exponent of this view has been Justice Thomas, whose opinions on campaign
return consistently to the core prohibitory structure of the First Amendment.
See, e.g.,
Nixon v. Shrink Mo. Gov't PAC, 528 U.s.
("I begin
(2000) (Thomas, J., dissenting)
377, 410-11
Political
that ought to be unassailable:
with a proposition
speech is the primary object of First
finance
Amendment
protection.").
25 The Court's
commitment
voice"
in the political process

The equality rationale
in Reynolds
expressed
v. Sims
that all citizens
the core of the equality

in campaign
finance cases
have
an "equally
377 U.s.
effective
533, 565
the
through efforts to dampen
to raise money.
See, e.g., Buck
argument.
appears
in general and the arms-race effects of needing
impact of money
in part) (justifying expenditure
at 260 (White, J., concurring in part and dissenting
ley, 424 U.s.
to "counter the corrosive effects of money
in federal election
limitations as a legitimate means
(1964).
and
see also richard
l. hasen,
election
the
supreme
court
law:
campaigns");
v. Carr
v. Gore
to Bush
from Baker
114 (2003) ("Austin represents
Equality
Judging
in deed if not in word, the
of the Court accepted,
the first and only case in which a majority
from Hasen
's book, Chief
state interest."). To this quotation
equality rationale as a permissible
as also being premised on the equality rationale. Citizens Unit
Justice Roberts added McConnell
ed, 130 s. Ct. at 922 n.2 (Roberts, C.J., concurring); see also id. at 922 ("Austin 'has been under
albeit disguised
to be an opinion driven by equality considerations,
stood by most commentators
in the language of "political corruption"'
....")
Garrett, New Voices in Poli
(quoting Elizabeth
on Law and Politics,
tics: Justice Marshall's
52 How.
Jurisprudence
26
Buckley, 424 U.s. at 27.
27 FEC v. Nat'l Conservative
PAC, 470 U.s. 480, 498 (1985).
28
435 u.s.
765 (1978).
29 Id. at
788 n.26.
l.J.
655, 669 (2009)).

HARVARD LAW REVIEW
124
[Vol. 124:118
pioned the libertyarguments of the First Amendment: "[T]he fact that
the electorate
advocacy may persuade
4
The Constitution
protects expression
that which
is unconvincing.'"30
is hardly a reason to suppress it:

which
is eloquent no less than
The
with Justice Ste

dissenting positions, most strongly associated
were
that
difficult to police
vens, argued
quid pro quo arrangements
in politics compounded
and, more centrally, that not regulating money
the advantages held by the wealthy in our society. At the doctrinal
relied upon an equality rationale as a justification

level, the dissenters
for restricting expenditures.
The
claim that money was not speech
was absolutely
critical to distance
the proposed
restric
governmental
as the
tions from traditional First Amendment
concerns, particularly
proposed restrictionswere often justifiedon the basis of the content of

the speech,
or even
the viewpoint
of the speaker. On this view, wealth,
allowed
those with "'resources
amassed
corporate wealth,
particularly
in the economic marketplace'
to obtain
'an unfair advantage
in the po
litical marketplace.'"31
Although generally disregarded throughdozens of Supreme Court
to life, espe
opinions on campaign
financing, Austin held precariously
in
v.
the
hearts
of
reform
advocates.32
cially
Justice Souter, in Nixon
Shrink Missouri
to
Government
retool
Austin's
ap
PAC,33
sought
proach by tying the undue influenceargument to the potential for the
of impropriety un
the perception
that large donors call the tune
answered,
assumption
could jeopardize
the willingness
of voters to take part in democratic
v. FEC35
Most notably, inMcConnell
the case that up
governance."34
held most of the Bipartisan
Reform Act36 (BCRA)
Campaign
against
the Court adopted a highly deferential view of
constitutional
challenge,
appearance
of corruption:
and the cynical
"Leave
influence on of
congressional
authority and allowed
disproportionate
to stand in for corruption as a justification
ficeholders'
for
judgment
30 Id. at
Int'l Pictures Corp. v. Regents of the Univ., 360 U.S. 684, 689
790 (quoting Kingsley
(1959)); see also Meyer v. Grant, 486 U.S. 414, 425-26
(1988) (rejecting argument of undue influ
ence of money and therefore striking down prohibition of paid signature gatherers for petition
drives).
31 Austin
v. Mich.
v.
State Chamber
of Commerce,
494 U.S.
652, 659 (1990) (quoting FEC
Mass. Citizens for Life, Inc., 479 U.S.
238, 257 (1986)).
32
The Decision
that Threatens Democracy,
N.Y. REV. BOOKS,
See, e.g., Ronald Dworkin,
13, 2010, at 63 (treating Austin as the controlling precedent on limitations on campaign
May
expenditures).
33
528 U.S. 377 (2000).
34 Id. at
390.
35
540 U.S. 93 (2003).
36
Reform Act of 2002, Pub.
Bipartisan
Campaign
scattered sections of 2, 18, 28, 36, and 47 U.S.C.).
L. No.
107-155,
116 Stat.

81
(codified
in
20
THE SUPREME
COURT ?
COMMENTS
125
limitations.37
upholding
campaign
Ultimately,
however, Austin
not be reconciled with the core analytic
structure of Buckley.
could
If the
prohibition of wealth-based distortions of politics were the ultimate

then drawing a constitutional
line between
and ex
contributions
no
sense.
would
make
To
have
wealth
penditures
compromise
political
outcomes
to the voters, something that
requires distortionary
appeals
of necessity occurs on the expenditure
side of the ledger.
aim,
Citizens
United
on
the Buckley
In ex
scenario.
now
struck
down anything
pressly overruling Austin,
as an expenditure
limitation38 (unless found to be coordi
categorized
nated with a candidate
and thereby a way of circumventing
contribu
closed
the circle
the Court
has
tion limitations39),
while at the same time upholding virtually all con
tribution
limits, except
in the rare case where
contribution
limits are
set at such a restrictivelylow level that they threaten the viability of

the ensuing political debates.40 In the JusticeKennedy majority opi
nion, only the risk of explicit quid pro quo corruption appears to sur
vive as a basis for regulating campaign
finance.41 The critical holding
comes with
to
"The
absence
of
regard
independent
expenditures:
and coordination
of an expenditure with the candidate
prearrangement
or his agent not only undermines the value of the expenditure to the
but also alleviates
the danger that expenditures will be giv
candidate,
en as a quid pro quo . . . ."42 Nor will independent
create
expenditures
the appearance
a
of quid pro quo corruption because
fact
that
"[t]he
or
to
other
is
to
to
any
corporation,
speaker,
willing
spend money
try
voters presupposes
persuade
ence over elected officials."43
Citizens United
Ultimately,
est "in equalizing
the relative
that the people
have
the ultimate
influ
rejected a claimed governmental

and groups
ability of individuals
inter
to in
37
Even
this claim was short-lived as Chief Justice Roberts
540 U.S. at 143-44.
McConnell,
soon noted that corporations
could not be barred from nonelectoral
speech, regardless of the ad
that might accrue to their corporate structure from the result of a given election.
See
vantages
FEC v.Wis. Right to Life, Inc., 127 S. Ct. 2652, 2672-74 (2007) (plurality opinion).
38 Citizens
Austin
not only
130 S. Ct. at 913 ("[Overruling
United,
'effectively invalidate^]
BCRA
Section 203, but also 2 U.S.C.
441b's prohibition on the use of corporate treasury funds for
at 33 n.12, Citizens United,
express advocacy.'"
130 S. Ct. 876 (No.
(quoting Brief for the Appellee
08-205), 2009 WL
406774 at *33 n.12)).
39 See FEC v. Colo.
Fed. Campaign
Republican
533 U.S. 431, 464 (2001) ("There is no
Comm.,
and a direct party
significant functional difference between a party's coordinated
expenditure
contribution to the candidate, and there is good reason to expect that a party's right of unlimited
coordinated
spending would attract increased contributions to parties to finance exactly that kind
of spending.").
40 See Randall
v. Sorrell, 548 U.S.
230, 261-62 (2006) (plurality opinion) (striking down Ver
mont state contribution limits).
41 See Citizens
130 S. Ct. at 904, 909-10.
United,
42 Id. at
1, 47 (1976) (per curiam)) (internal quotation
908 (quoting Buckley v. Valeo, 424 U.S.
marks omitted).
43 Id. at
910.

HARVARD LAW REVIEW
I2?
[Vol. 124:118
of elections,"44 and rejected the concern over the

"undue influence" of money
serving as a form of corruption that justi
as Austin might
fies regulation.45
Corruption
proved not as malleable
have indicated.
the outcome
fluence
of Politics
II. The Corruption
Any systemof privately financed campaigns invites strategicuse of

money
to influence
officials.
public
The
case
law has
now
been
en
gaged in a multidecade search fora workable definitionof justwhat is

corrupt as opposed to benign when aspiring public officials solicit
at the Supreme
So far, the debates
are corrupted
the candidates
through
or per the dissents, whether
electoral
illicit quid pro quo arrangements,
are distorted as a result of concentrated
outcomes
corporate and pri
vate wealth.
money
Court
to further their ambitions.
have
asked
only whether
An alternative take on the problem of corruption of the political

process would suggest that both of these definitionsmiss the mark.
Each is concerned with the improper influences on the selection of
candidates foroffice.While the influenceof thewell-heeled may be a
is a serious
the prospect of out-and-out
concern, and while
corruption
?
more
concern
an
the
serious
is
alternative
there
prob
issue,
perhaps
lem ?
that looks not to inputs into who holds office, but to the out
puts in termsof the policies that result froman elected class looking to
future support
in order to retain the perquisites
arena
incentives
the question
of office. On
this view,
the underlying problem is not so much what happens in the electoral

but what
fice. Although
tive structure,
the focus
are offered
of holding
shifts to how
discharge of public duties.
to elected officials while

in of
to
this
incen
office remains key
the electoral
drives
process
the
Specifically, the inquiry on officeholding
class
the electoral system leads the political
asks whether
vate gain from public action to distinct, tightly organized
to offer pri
constituen
cies,which in turnmay be mobilized to keep compliant public officials

in office.
as the evil to be
test resting on corruption
constitutional
a
in
this
of
the
for
definition
case, the uncor
or,
good,
begs
areas
state
in
of
law
which
the
resists simple
in
As
many
good
rupted.
?
come
which
from
the
first
process questions
definition,
insight may
are
to
forms
of
desirable
finance
promote
likely
procedures
campaign
are
in
to
infirmities
and
which
democratic
governance
promote
likely
Any
avoided
44 Id. at
904 (quoting Buckley, 424 U.S. at 48) (internal quotation marks
45 See id. at
962 (Stevens, J., concurring in part and dissenting in part).
omitted).

20
COURT ?
THE SUPREME
A tractable
democracy?46
reference to an idealized
looking
COMMENTS
127
of corruption may emerge not by

state of candidate
election, but instead by
the process of election incentivizes
in
certain behaviors
to how
definition
elected officials seeking to retain office. Here the concept of corrup

tion hinges not on a quid pro quo by which the candidate for office is
nor on a distortion
enriched,
impermissibly
of the concept
of democrat
ic equality among the electorate. Without denigrating either concept
as a concern, an outputs focus on the effects on public policy looks to

in the use of public office resulting from the incentive struc
alterations
tures of the electoral process.
The outputs account of corruption is concerned with the subversion
conceived
of in terms of the need to provide
of the role of government,
public goods. The classic examples of public goods are the protections
of security, of the environment,
of foreign relations,
of the matters
from
which private initiative cannot realize gains and that in turn require
public coordination. It is precisely this benevolent use of public au
thority to overcome
the collective
action
barriers
to the production
of
public goods that is increasingly subject to challenge. The public

choice
accounts
of recent political economy

is an occasion
for motivated
claim
that the existence of

special interests to seek to
to create public goods, but to
power
not
capture the power of government,
realize private gains through subversion of state authority.
?
This strategy
identified in the political science literature as clien
?
as corruption under current cam
telism
defies easy categorization
in office,
it concerns what happens
paign finance law precisely because
its sim
the
election
At
rather than what happens
during
campaign.47
a
in
is
clientelism
which
sup
patron-client
relationship
plest,
political
public
at rallies, money)
is exchanged
for privileged
port (votes, attendance
access
to public goods.48
The concept differs in emphasis
from quid
assumes
account
of
The
traditional
pro quo corruption.
corruption
that the harm is the private benefit obtained by the politician. While
46
view of the aim of campaign

finance regulation antic
Attempts to fashion a "proceduralist"
in Campaign Finance
See generally Bruce E. Cain, Moralism
and Realism
ipated this approach.
Reform, 1995 U. CHI. LEGAL F. in, 122-39.
47 The Court started to
grapple with this problem inMcConnell:
Just as troubling ... is the danger that officeholders will decide issues not on the merits
or the desires of their constituencies,
to the wishes
but according
of those who have
. . .And unlike
made
large financial contributions valued by the officeholder.
straight
cash-for-votes
criminalize.
McConnell
48
See,
entelisi^,
2001)
transactions,
best means
is neither easily detected nor practical

such corruption
of prevention is to identify and to remove the temptation.
v. FEC,
540 U.S. 93, 153 (2003).
e.g., Simona Piattoni, Clientelism
and Democratic
Interests,
(explaining
Political
Roniger,
The
definition
of clientelism
Clientelism,
Democracy,
in Historical
and Comparative
Representation
i, 4-7
in cli
Perspective,
(Simona Piattoni ed.,
and corruption); Luis
its relationship to patronage

and Market
36 comp.
Economy,
and
to
pol.
(2004).

353, 353-54
HARVARD LAW REVIEW
128
[Vol. 124:118
the concept of quid pro quo corruption is ample enough to include al

most any benefit obtained, the focus of clientelism is not the enrich
ment of an individual politician but continued officeholding on the
condition that "partypoliticians distribute public jobs or special favors
in exchange
for electoral support."49
For all democracies,
there are aspects of clientelism whenever
poli
to constituent
interests.50
ticians respond
Justice Kennedy
Indeed,
took pains
access
...
in Citizens United
to insist that "[i]ngratiation and
are not corruption."51

ensues only when politi
A pathology
are
to allow important sectional supporters "to gain
cal decisions
made
access to public resources" for profit.52 Weak
privileged
political par
ties and candidates with difficultyholding a programmatic electoral
networks to retain their positions.53

begin to rely on patron-client
in large and expensive
trend becomes more problematic
elections:
to
connect
it
becomes
with
of
groups
"[a]s
voters,
increasingly
costly
candidates
prefer to organize a smaller electorate and target them with
base
This
larger transfers."54
The pathology of clientelism then rewards incumbentpoliticians for
an expansion
of the public sector in a way that facilitates sectional re
was
to constituent
wards
This
described
groups.
phenomenon
by
in his classic work on the pressures
Mancur
Olson
toward the growth
of both the size and complexityof government:
limited incentive the typical citizen has to monitor public poli

..
. implies that lobbies for special interests can sometimes succeed
cy
where matters are detailed or complex but not when they are general and
simple, and this increases complexity .... [In turn, s]omeone has to admi
nister the increasingly complex regulations that result from the lobbying
The
and
the related
processes
....
This
increases
the scale
of bureaucracy
and
government.55
Olson identifiedone of themechanisms by which public power can
be harnessed
for private aims. Private gain may abound

in large-scale
to the public
is nontransparent
and
government
enterprise, which
which resists both monitoring
and accountability.
The extreme form is
49 Alex
io comp. Stud. Soc'y & HlST.
and Political
Patrons, Patronage,
Weingrod,
Parties,
377, 379 (1968) (describing related concept of patronage).
50 See
Roniger, supra note 48, at 357 (describing clientelism as endemic in democracy).
51
130 S. Ct. at 910.
52
Roniger, supra note 48, at 358.
53
24 J.L. econ.
Cf. Philip Keefer & Razvan Vlaicu, Democracy,
Credibility, and Clientelism,
& Org.
371, 372-73 (2008) (arguing that politicians may avoid the costs of establishing credibility
the general electorate by instead forming relationships with patrons who are
in outcomes that benefit their interest group).
54 Id. at
381; see also id. at 381-82, 387.
55 Mancur
of Nations
The Rise and Decline
Olson,
69-71 (1982).
with

interested only
20
THE SUPREME
COURT ?
COMMENTS
129
the earmark,which does not even require formal identificationof its
existence.56
any attempt
Unfortunately,
to act on the danger
runs
of clientelism
into the inescapable problem that government is a blur of the high

minded and the petty,where it is oftendifficultto distinguish between
to constituents
rewards
and matters
of policy
and
principle.
The
American recognition of the risk of legislation in the private interest

dates at least to The Federalist No. 10, inwhich Madison identifiedas
a
of republican
the ability to resist "a
governance
. . .who are united and actuated
by some common
or
to
of
of
adverse
the
interest,
impulse
rights of other citizens,
passion,
or to the permanent
and aggregate
interests of the community."57
The
to have conceptualized
Framers
of
appear
corruption as a derogation
the public trust more than as the narrow opportunity
for surreptitious
central
number
problem
of citizens
But
gain.58
the distinction
between
public-
and private-regarding
leg
islation is difficulttomake, and effortsto review legislationon the ba
sis of its public-regarding
character
have
largely failed59
the debate
over whether a political initiative is dominated by public or private

proves to be too great an invitation to reargue
legislation that any particular group finds objectionable.60
purposes
the politics
of
Despite the difficultyin drawing precise substantive lines, it is clear
that our political

tions to capture
does introduce pathways

for private motiva
?
of governmental
and that these
processes
even
but rather avenues,
may not be pathways
boulevards,
perhaps
lanes.
Clientelist
erode public
in
institutions with
express
pressures
centives to increase the size, complexity, and nontransparency
of gov
process
the use
ernmental decisionmaking, with the corresponding impetus simply to

increase the relative size of the public sector,oftenbeyond the limitsof
In the first instance, political

economy can tolerate.
a
robust
and
accountability
through
system may
competitive
political
check some pressures toward the excessive
rewarding of private consti
what
the national
56 For
an overview of the earmark process, see Rob Porter & Sam Walsh, Earmarks
in the
8-9 (Harvard Law Sch. Fed. Budget Policy Seminar, Briefing Paper No.
Budget Process
16, 2006), available at http://www.law.harvard.edu/faculty/hjackson/Earmarks_16.pdf.
57 THE FEDERALIST
No.
10, at 72 (James Madison)
(Clinton Rossiter ed., 2003).
58 The most ambitious effort to read this definition of
into the Con
corruption cross-textually
Federal
stitution is found
in Zephyr Teachout,
373-81 (2009).
59 The
leading
The Anti-Corruption
Principle,
94 CORNELL
L. REV.
341,
effort was
signaled in Cass R. Sunstein, Public

Values, Private Interests, and
Clause,
1982 SUP. CT. REV. 127, 133-35, which argued for applying different
tiers of scrutiny to public- and private-regarding
legislation.
60 See Richard B.
in a Liberal State: The Role of Non-Commodity
Stewart, Regulation
Values,
the Equal
92 YALE
nipulated
ological
Protection
is viewed as a self-serving tool, ma

1537, 1542-43 (1983) (noting that "[Regulation
LJ.
either by well-organized
economic
interest groups to increase their wealth, or by ide
factions to impose their partisan values on society," id. at 1543 (footnote omitted)).

HARVARD LAW REVIEW
130
[Vol.
124:118
tuencies through public authority.61 But, if unchecked, clientelism

the perception
of "systemic corruption, which
institu
cripples
?
a paral
in the political
tional trust and public confidence
system"62
concern in Buckley
over the detrimental
lel to the Court's
effects of the
breeds
of quid
appearance
pro quo
corruption.
No doubt money is at the root of the problem, but the problem is

not limited to thewealthy or the corporations or even the institutional
actors
such as
or Indian
labor unions
tribes.
Like
the overbroad
pro
hibition on corporate independent expenditures that proved proble

matic inCitizens United,63 simply tryingto root outmoney in undiffer
entiated
the problem
closely hewn, the issue
fashion miscasts
thority. More
of the compromise
of public au
is not money as such but the po
tentialprivate capture of the powers of the state. The Supreme Court
v. A.T. Massey
this concern a year prior in Caperton
acknowledged
a state judge's
the Court
ruled unconstitutional
Coal Co.,64 in which
on
a
case
a
in
major
sitting
judgment
campaign
involving
supporter.65
suggests a concern with the ability to use privileged positions
Caperton
in the democratic
process
to gain
control
over
the exercise
of govern
mental authority. Under this view, the problem is not the ability to
deploy
exceptional
resources
in election
campaigns,
but
the incentives
operating on governmental officials to bend their official functions to
accommodate
discrete
constituencies.
III. Does Money
Necessarily
Corrupt?
The most strikingand perhaps the oddest feature of Citizens Unit
of rights upon corporate actors, a re

endowment
ed is the extravagant
to
to strike down
reach beyond what was necessary
sult that appeared
an overbroad
on
restriction
contributions.
Also,
curiously, the Court
did not act at the behest
of corporations
eager to exploit the vagaries
of campaign
finance law. No corporation
filed an amicus brief in the
case
of Commerce
the expansive
case, with only the Chamber
making
con
In states where
for the First Amendment.66
corporate campaign
61 See Alicia
et al., Are You Being Served? Political

and Quality
Accountability
of
(Inter-Am. Dev. Bank Research Dep't, Working Paper No. 438, 2000). Unfor
the competitive uncertainty of elections may also increase pressures to
tunately, and paradoxically,
deliver desired goods to any marginal
See J. Moran,
Democratic
Transitions
and
constituency.
Government
Adser?
35-37
379, 381 (2001).

of Corruption, 36 CRIME L. & SOC. CHANGE
Roniger, supra note 48, at 367.
63
130 S. Ct. at 911 (finding the prohibition of corporate independent expenditures both under
if the object is to protect shareholder interests).
and overinclusive
64
129 S. Ct. 2252 (2009).
65 Id. at
2256-57.
66
of the United States of Amer
Brief of Amicus Curiae Chamber
of Commerce
Supplemental
at 4, Citizens United,
ica in Support of Appellant
130 S. Ct. 876 (No. 08-205), 2009 WL
2365220,
at *4.
Forms
62

THE SUPREME
2010]
COURT ?
COMMENTS
131
tributionsare legal (about half the states67),the evidence of an urge to
elections with corporate spending is scant, at least thus far.

one study from California
for 2001-2006
revealed
that
example,
com
to state independent
among the top ten contributors
expenditure
two
there was not a single corporate
interest.68 There were
mittees,
overwhelm
For
wealthy individuals among the top ten,69banking a friendwho was

running for governor,70 but the top ten were dominated
by either In
?
dian tribes or public
unions.71
Even
the
trial lawyers
employee
anotherwidely disparaged group?
ber
ten.72
When
all
contributions
barely eked onto the list at num

among
the top
ten were
added
together for that period, the amount expended by public employee
unions was
In some
that attributed to corporate sources.
were
there
associations
of
small
races,
by
expenditures
as
even
were
estate
real
such
but
businesses,
interests,
secondary
they
players overall.73
are business
At bottom, corporations
rivals and there are serious
about
double
individual
in the
them from coordinating
preventing
as
such
the Chamber
political arena, except through trade associations
of Commerce.
That
conflict is why corporations
have difficulty over
coming the concentrated
pull of public employee unions, even on mat
collective
action
problems
ters of concern
to the business
community.74 More
centrally, for most
are
events
that
may
prove a poor forum
noisy
corporations,
for advancing
their interests. Most
traded
do not
publicly
corporations
on
want to be associated
with controversial
hot-button
social
positions
elections
issues
that dominate
foreign military
elections, notably abortion,

capital
and school prayer.75 PACs
engagements,
punishment,
funded from
?
states permit some ?
form of corporate campaign contribu
usually limited
Twenty-eight
tions. Within
this group, five states allow unlimited contributions, with one scheduled
to intro
duce limitations effective January 2011. See nat'l
of state
conference
legislatures,
on Contributions
to Candidates
State
Limits
at http://www.ncsl.org/
(2010), available
67
Portals/i/documents/legismgt/limits_candidates.pdf.
68 Cal.
Fair
Practices
Political
Comm'n,
Giant
Gorilla
in Campaign
Finance
Independent
22 (2008), available
Expenditures:
The
at http://www.fppc.ca.gov/ie/IE
Report2 .pdf.
69 Id.
70 Dan
The Big Spenders on the Side, L.A. TIMES, May
21, 2006, at Ai.
Morain,
71 Cal.
Fair Political
Practices
supra note 68, at 22.
Comm'n,
72 Id.
73 See id. at
24-36.
74 For
example, a recent Oregon referendum proposed using increased payroll taxes to finance
Public
than employer
public employment.
employee unions raised almost fifty percent more
Public Workers Flex Mus
groups to push the measure
through. See Brent Waith & JeffMapes,
cles in Tax Battle, oregonian,

Jan. 21, 2010, at Ai; see also T.W. Farnam, Unions Spending
post,
July 7, 2010, at A4.
Big on Campaign Ads, wash.
75 The difficulties encountered
in the recent Minnesota
by the Target corporation
gubernatori
al election provide an object lesson in the perils of political
contribution to a business group supporting the Republican
engagement.
candidate,
Target made a $150,000

Tom Emmer, based upon

HARVARD LAW REVIEW
132
[Vol. 124:118
individually pooled funds provide a way to signal support for candi
without
the corporate
treasury to ever-ravenous
opening
politi
cians.76 But for pursuing direct interests, lobbying is a more effective
means
of securing desired ends, and the amounts
spent on lobbying ra
on
ther than
activities
(even in states that permit contribu
campaign
dates
tions) reflect corporate understanding that the work of securing a

compliant government is best carried out in the legislative rather than
electoral arena.77 Moreover,

within the legislative arena, corporations
are likeliest to focus on gaining a competitive
over rivals or
advantage
are
to
be
further dis
thus
other sources of economic
and
apt
challenge,
The
from concerted
efforts to influence politics generally.78
to
in
turn
out
wish
to
be
that
do
engage regularly
speech
corporations
suaded
either the ideological organizations that have plagued the campaign

finance
case
law
(for example,
Massachusetts
Citizens
for Life79
and
Emmer's
endorsement of positions generally helpful to business interests. See Jennifer Martinez
Investor Backlash,
L.A. times,
& Tom Hamburger,
Target
Target Faces
Aug. 20, 2010, at Ai.
to gay marriage.
See Protect
did not factor into its electoral calculus Emmer's
strong opposition
for governor,
emmer
ing Life and Marriage,
http://www.emmerforgovernor.com/issues/
socialvalues
(last visited Oct. 2, 2010). The issue of gay marriage proved to have greater electoral
other positions, and in turn provoked a significant public backlash against
salience than Emmer's
called
Target.
Boycotts were organized, anti-Target advertisements were run, and shareholders
for an investigation. See Martinez
& Hamburger,
supra.
76 Australia
provides an example of a country where corporate contributions to campaigns are
indicated that in the
legal yet prove to be limited. The leading study of company contributions
period, all but one of the top ten campaign contributors donated money to both major
Ian Ramsay, Geof Stapledon & Joel Vernon, Political Donations
by Australian
parties.
29 Fed. L. Rev.
179, 203-04 (2001). Indeed, Professor Ian Ramsay, the author of the
Companies,
most comprehensive
in Australia,
indicated that most cor
study to date on political contributions
1995-1998
political
porations that do give tend to continue to give to the major parties, with some bump up for whi
chever party is in power. The firms that publicly disclose their contributions report the items on
or in their annual reports as "supporting the democratic process" or "strengthening

their websites
Interview with Ian Ramsay, Professor of Law and Dir. of the Ctr. for Corporate Law
democracy."
and Sec. Regulation, Melbourne
Austl. (Apr. 22, 2010). There appears to
Law Sch., inMelbourne,
be no evidence of any party in Australia
See Anne
having readier access to large contributions.
21 (Sydney Law Sch., Le
and Funding
Twomey, The Reform of Political Donations,
Expenditure
gal
Studies
Research
Paper
No.
08/136,
2008),
available
at http://papers.ssrn.com/abstract_ids:
1299331.
77 It is difficult to
get a precise figure on the amounts spent on lobbying overall, in part be
cause of the complex regulations on what constitutes and does not constitute lobbying. OpenSe
crets estimates that between 2006 and 2008, roughly equal amounts were spent on federal election
and on lobbying the federal government.
Behind
campaigns
Compare Big Picture: The Money
the Elections,
0penSeCRETS.ORG,
sited Oct. 2, 2010) (documenting
http://www.opensecrets.org/bigpicture/index.php
expenditures), with Lobbying
Database,
campaign
(last vi
OpenSE
2, 2010) (providing
crets.ORG,
(last visited Oct.
http://www.opensecrets.org/lobby/index.php
information on lobbying expenditures).
78 See
of
B. reich,
supercapitalism:
the
transformation
generally robert
and
Everyday
Life
Democracy,
Business,
131-67 (2007) (chronicling the growth of lob
over one another).
bying among firms to secure competitive advantages
79 See FEC v.Mass.
Citizens for Life, Inc., 479 U.S. 238 (1986).

20
THE SUPREME
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COMMENTS
133
Wisconsin Right to Life80) or closely held companies, includingpublic
still dominated
by a founding family (for exam
are exceptions,
of course, in local elections, es
elections are a
elections,81 but for most corporations,
pecially
judicial
means
indirect
for
their
and
interests.
advancing
precarious
ly traded corporations
There
ple, Wal-Mart).
While Citizens United'? grant of rights to corporations is not par

ticularly significant in terms of clientelist corruption, the facts of Citi
zens United
are
significant
in terms of potential
reforms.
subsequent
At issue before the Court were the BCRA prohibitions on corporate

and union contributions to independent expenditure groups during the
this issue was
the context for the Court's
run-up to federal elections;
critical finding that there was no risk of quid pro quo corruption.82
The Court
not only limitations on contributions,83
left untouched
but
in
also the broad disclosure
force.84
The
Court
requirements
currently
did not address the longstandingprohibition on direct contributionsby

and unions,86 something that dates back over a century
corporations85
In endowing
for corporations
and more than half a century for unions.
in terms of
of
with
all
the
natural
persons
corporations
prerogatives
independent expenditures, the logic of the Court's holding could even
to open the door to allowing

to do
corporations
signal a willingness
as
a
nate directly to candidates
As shocking
and parties.
such
step
it is unclear how big a differ
be to century-old settled practice,
would
ence itwould make. Would theworld look all thatmuch differentif

corporations
could
contribute
$2400
(the current
federal
contribution
limit on individual donations87) to a candidate? Perhaps, but likely
not all that much.
The logic of JusticeKennedy's majority opinion in Citizens United

was ultimately that any undue pressures on the body politic will be
cleansed by the competitive wash of the electoral process in which
80 See FEC v. Wis.

Right to Life, Inc., 127 S. Ct. 2652 (2007).
81
et al., BRENNAN
sample
CTR. for
See, e.g., james
of Change
of Judicial
Elections
2000-2009: Decade
the
justice,
(2010),
new
available
brennancenter.org/content/resource/the_new_politics_of_judicial_elections.
82 Citizens
130 S. Ct. at 910.
United,
83 Id. at
909 (noting that Citizens United did not suggest "that the Court
politics
at http://www.
should
reconsider
whether contribution limits should be subjected to rigorous First Amendment

scrutiny").
84 In John Doe No. 1 v.
130 S. Ct. 2811 (2010), the Court further rejected a First Amend
Reed,
ment facial challenge to disclosure of names on a state petition drive. Id. at 2815.
85 Tillman Act of
1907, Pub. L. No. 59-36, 34 Stat. 864 (1907) (codified as amended at 2 U.S.C.
? 44ib(a) (2006)).
86
Relations
(Taft-Hartley) Act,
Labor-Management
?? 141-197 (2006)).
(codified as amended at 29 U.S.C.
87
the
and
Federal
Campaign
FEC
FEC, The
pages/brochures/fecfeca.shtml#Contribution_Limits
? 110.1 (2010).
1947, Pub.
Finance
(last visited Oct.
L. No.
80-101,
Law,
2, 2010);
61 Stat.
136
http://www.fec.gov/
see also 11 C.F.R.

HARVARD LAW REVIEW
134
[Vol. 124:118
is a salutary force.88 The dissenting

information
response was
are not entitled to such protections,89 that their
either that corporations
are not speech,90 or that Justice Kennedy's
on
expenditures
emphasis
a
First Amendment
countervail
liberty of expression must yield before
more
ing claim to equality in the political arena.91 The resulting engage
ment
is stark, and given the majority's

liberty of expression and the dissent's
commitment
concern with
from concentrations
of wealth,
untoward
pressures
mon ground for engaging whether
there are particular
reforms might address.
to the primacy of
of
the appearance
there is little com
pathologies
that
A. Funding Politics
For
all the attention
lenge remains
devoted
straightforward:
to campaign
finance reform, the chal
for our political
system to work proper
ly, there is "the need for funding sufficientto enable candidates to
races without
on
rendering them unduly dependent
competitive
It is here that the reform impulse to constrict money
large donors."92
For example,
the first effort to offer public fund
is most problematic.
?
the post-Watergate
for office
election
ing to candidates
presidential
?
set the amount of the public contribution at two-thirds of
subsidies
run of
had spent on his disastrous presidential
what George McGovern
mount
was
in Buckley,
the
removed
the cap on expenditures
1972.93 Once
on to collect money
race was
to satisfy the mounting
costs of cam
paigns, despite the constraints imposed by low contribution limits.94

88 See
18wm. &
Saul Zipkin, The Election Period and Regulation
of the Democratic
Process,
Rts.
J. 533, 591 (2010) (suggesting the majority view implies that "because Ameri
cans can think for themselves, more information cannot hurt them, but can only help in the vot
. mary
Bill
ing process" (footnote omitted)).

89 Citizens
130 S. Ct. at 930, 971-72
(Stevens, J., concurring in part and dissenting
United,
in part).
90 Id. at
972.
91 Id. at
977?
92 Richard
Briffault, Reforming Campaign Finance Reform: A Review
of Voting with Dollars,
L. Rev. 643, 645 (2003) (book review).
91 Calif.
93 Id. at
679 n.126. The $20 million figure in 1974 was also one-third of what Richard Nixon
In a more recent example of public campaign
the election.
Id.
had spent in 1972 in winning
received federal funds of $84 million for the general election cycle in 2008,
funding, John McCain
cam
compared to roughly $400 million raised independently and spent by the victorious Obama
in Record
Luo, Obama Hauls
paign. Michael
for Campaign, with Plenty Left to
$750 Million
Dec.
5, 2008, at A29; see also FEC Electronic
Filings by JOHN MCCAIN
Spend, N.Y. times,
2,
(last visited Oct.
FEC,
INC.,
http://query.nictusa.com/cgi-bin/dcdev/forms/C00430470
2010) (posting copies of FEC Form 3P filed periodically between Jan. 31, 2007, and Nov. 5, 2009);
FOR
FEC Electronic
AMERICA,
FEC,
http://query.nictusa.com/cgi-bin/
by OBAMA
Filings
(last visited Oct. 2, 2010) (posting copies of FEC Form 3P filed periodi
dcdev/forms/Coo43i445
2008
cally between Apr. 15, 2007, and Oct. 17, 2009).

94 See Issacharoff &
supra note 12, at 1711 (drawing analogy between the remaining
Karlan,
unlimited candidate
limits and "giving a starving man unlimited trips to the buffet
expenditure
table but only a thimble-sized
spoon with which
to eat").

THE SUPREME
2010]
COURT ?
COMMENTS
135
Whatever the failings as a matter of regulatorypolicy, the Court has

inmost
weighed
readily on the side of protecting
expenditures.
Thus, the firstsignificantprohibition of BCRA to fail scrutinywas
v.
the so-called
"Millionaire's
Amendment."
Struck down by Davis
the amendment
increased hard money
FEC,95
permitted
fundraising
for incumbents challenged
This particular
by self-financed campaigns.
none
to
of
the
carry
appeared
anticorruption
provision
logic of the
Buckley exception and instead carried the redolent whiff of self

dealing by politicians. In strikingdown what itperceived to be a pen
alty on speech, the Court held that BCRA
who
penalty on any candidate
robustly
"imposes an unprecedented
exercises
that First Amend
ment right [to expend lawfully obtained funds. The Act] requires a
candidate to choose between the First Amendment right to engage in
unfettered
political
speech
and
subjection
to discriminatory
fundrais
ing limitations."96
an injunc
Davis
then carried over into the Court's
order upholding
of
tion against a longstanding Arizona
small
contribu
policy
matching
a
tions with state financial
of
support
grassroots-based
candidacies,97
as
of
known
"clean
because
the
small-donor
money"
financing
practice
At issue, however, was Arizona's
constituency.98
policy of giving an
to
additional
clean money
candidates
under
gubernatorial
subsidy
from self-funded candidates.99
the same con
challenge
Presumably,
cernwould apply to the burdening of expendituresby individualswho
would,
in effect, be
putting
one
dollar
in their opponents'
coffers
foreverydollar they themselves spent. The resultwould be a "drag on

First Amendment rights," as Justice Alito described the concern
inDavis.100
95 128 S. Ct.
? 319(a), 2U.S.C.
? 44ia-i(a)
2759, 2773-74 (2008) (striking down BCRA
(2006)).
96 Id. at
2771.
97 McComish
v. Bennett, 130 S. Ct. 3408 (2010) (mem.).
98 See
v. Federal
Election
Commission:
the
generally Emily C. Schuman, Davis
Muddying
Clean Money Landscape,
42 LOY. L.A. L. REV. 737 (2009) (setting out basic framework of existing
clean money schemes).
99
v. Bennett, 605 F.3d 720 (9th Cir. 2010).
130 S. Ct. 3408; see also McComish
McComish,
This
outcries over the Court
ruling prompted hyperventilated
seeming to put public finance
schemes
at risk. See Editorial,
A24 (describing theMcComish

zona law included a "matching
Politics Safe for the Rich, N.Y. TIMES,

June 9, 2010, at
as "reckless" and "a burst of judicial activism").
The Ari
to a partici
funds" provision that increased public funds available
Keeping
decision
to match the financing levels of self-funded candidates, which arguably has the
pating candidate
ARIZ. REV. STAT. ANN. ?? 16-940 to 16-961 (2006). Invariably
effect of depressing expenditures.
of for-profit corpora
there is the paradox
that the mainstream
media, despite being composed
tions, has systematically touted restrictions on any independent expenditures by corporations, oth
er than those deemed to be the media.
As Justice Kennedy
noted in Citizens United, the claimed
that have diverse
"exemption applies to media
corporations owned or controlled by corporations
in endeavors other than news."
and substantial investments and participate
130 S. Ct. at 906.
100
128 S. Ct. at 2772.
Davis,

HARVARD
136
LAW REVIEW
[Vol.
124:118
A careful reading of Davis,

reveals that the Court's
however,
cern was not contribution
limits or even clean money matching
con
sys
tems,but the impliciteffortsto rein in expenditures of individualswho
do not readily fall into any theory

self-finance, and whose
expenditures
?
save
the now-rejected
of corruption
equality concerns from Austin.
for the reform impulse as the
The
poses a dilemma
logic of Davis
of clean money
is in ten
Court's
handling of the seed money approach
carrot
sion with the reformers' lurking desire to use the public money
as a stick to limit expenditures.
There is no constitutional issue raised by the use ofmatching funds
to reward candidates
there are a number
For example,
for mobilizing
many small donors.
of clean money programs
that offer the quid pro
quo recognized inBuckley by which candidates accept public money

and
contractually
presidential
agree
matching
to a limit on their own expenditures,101 as with

funds. These
programs are all premised on the
idea that candidates should be rewarded for engaging the voting pub
lic and should get public monies to the extent that they expand
the network
deed,
of citizens who
such programs
have
In
participate
through small donations.
survived
constitutional
generally
challenge
when they release publicly funded candidates from the expenditure

limitation if their opponents threaten to spend in excess of the public
limitations.102
Davis
would
call the constitutionality
of these programs
into ques
tion to the extent that they couple the inducement to expand the base
of popular
participation
with
a heavy-handed
effort to dampen
ex
penditures by the opponent. Almost invariably, these clean money
even
to participating
seek to limit contributions
programs
candidates,
limits for the office in
below
the generally
established
contribution
a low figure (for
In other words,
rather than simply match
question.
for the first $100 contributed by
five-to-one public matching
example,
can
seek to limit the size of contributions
any donor), these programs
101
1, 57 n.65 (1976) (per curiam) (affirming that a government may
Buckley v. Valeo, 424 U.S.
"condition acceptance
of public funds on an agreement by the candidate
to abide by specified ex
penditure limitations").
102
v. Comm'n
on Governmental
Ethics
See, e.g., Daggett
450 (ist Cir. 2000) (holding that constraints on participating
fects of releasing
& Election
205 F.3d 445,

Practices,
inMaine
ef
outweighed
funded challengers); Gable v.
candidates
them from contribution

limits if facing privately
statute that simply released par
142 F.3d 940, 943 (6th Cir. 1998) (upholding a Kentucky
from expenditure and contribution limits if facing heavily financed challen
ticipating candidates
Inc. v. DiStefano,
Island law
4 F.3d 26, 29 (ist Cir. 1993) (upholding a Rhode
ger); Vote Choice,
Patton,
that released publicly funded candidates

from expenditure and contribution limits if facing overly
statute that provides for additional
funded candidate).
The portion of theMaine
funds to a can
didate challenged
Rev.
Stat.
tit. 21-A, ?? 1121, 1125(9)
by a privately funded opponent, me.
The same logic would apply to another bill before Congress,
(2009), may now fail under Davis.
the Clean Money, Clean Elections Act of 2009, H.R.
2056, nith
Cong. (2009), which would
vide "fair fight" funds to candidates who are being outspent, see id. ? 510.

pro
20
THE SUPREME
didates
didate
may
receive,
COURT ?
even below
corruption.103
Moreover,
COMMENTS
the threshold
most
137
deemed
of these
not to risk can

have
programs
been
tried in local elections and in states that are without a historyof heavy
media expenditures. If public financing is to succeed, ithas to provide
to control the agenda
of the election
enough money
of tertiary organizations,
lest candidates
be at the mercy
with
candidates
campaign,
such as PACs and political committees operating under section 527 of

the tax code, including the panoply of denizens of the Swift Boat or
MoveOn.org
side of politics.104
Paradoxically, the historyof BCRA reformssuggests that the influ
ence
have
on policy is diminished
of money
when
and parties
candidates
access
to
If
2008
the
ample
fundraising.
anything,
presidential
election should invitea revisitingof the reformpremises thatmoney is

unrelated to participation and that less money is inherentlya good
to what may be expected,
creating an incentive for
thing. Contrary
to raise more money
from more people may actually reduce
candidates
the clientelist pressures to capture political outputs. One of the keys to
in 2008 was an unheralded
but important aspect of BCRA:
fundraising
in the amount
the significant increase

didates and parties.105
The
greater
to can
of hard money available
to
raise
from
money
opportunity
individuals combined with the eased ability to reach small donors
through
the internet. As
a result, the 2008 Obama
campaign
was
able
not only to raisemoney prodigiously,but also to engage millions of cit

izens at the same
time.
In the process,
million and spent $730 million?
President
Obama
raised
$745
figures that surpassed the fundrais
Those
contribu
ing and expenditure marks of all prior candidates.106
tions came from nearly four million donors, again more than any prior
in American
candidate
President
Obama
also re
history.107 While
103 por
example,
1826, 11 ith Cong.
under one bill currently before Congress,

the Fair Elections Now Act, H.R.
in a federal clean
candidates
(2009), S. 752, 11 ith Cong.
(2009), participating
have to agree to accept no contribution greater than $100 per election
money program would
cycle, even though the current federal limitation on contributions is $2400 per election cycle.
104 The
argument that excessive restrictions on candidate
fundraising promote politics domi
nated
by single-issue
note 12.
105 BCRA
doubled
special
interests is central
to the argument
in Issacharoff
& Karlan,
supra
in each campaign
the amount an individual could contribute to a candidate
from $1000 to $2000 and raised the amount
that could be given to a political party to
these limits
? 307(a)(iH2)
? 441(a)(1)
(codified at 2 U.S.C.
(2006)). Under BCRA,
$25,000. BCRA
were also indexed to inflation, id. ? 44ia(c), and as of January 2010 stood at $2400 to a candidate
and $30,400 to a national party committee. FEC,
supra note 87.
106 Presidential
and Spending,
1Q76-2008, OpenSecretS.ORG,
Fundraising
http://www.open
(last visited Oct. 2, 2010); Summary Data for Barack Ob
secrets.org/preso8/totals.php?cycle=20o8
cycle
ama, OpenSecrets.ORG,
http://www.0pensecrets.org/pres08/summary.php?cycle=20o8&cid=No
(last visited Oct. 2, 2010). The historical figures are not adjusted for inflation.
0009638
107 Tahman
Obama's
news
(Dec.
$75oM, ABC
Fundraising
Figure:
Bradley, Final
2008), http://abcnews.go.com/Politics/Vote2008/story?id=6397572.

5,
HARVARD
138
LAW REVIEW
[Vol. 124:118
?
of less than $2oo108
making
?
the vast majority
of all his fundraising
of
up nearly one-quarter
raised was from donors outside of the small donor category.109
money
a record number
ceived
of contributions
Yet the breadth of the fundraisingbase and the sheer quantity of the
amounts
defy any easy story of corruption of democratic

poli
arise when there are only a few large donors, not when
donors who may be substantial but not critical. Thus,
to solicit money
for campaigns
from
reforms that create incentives
more sources may actually be more effective at diminishing
the distor
raised
tics. Problems
there are many
tive effectsofmoney on public policy than those that seek to limit the
amount
of money
in the system.
B.
An
alternative
view
Concerns
of corruption,
from public
command
rewards
both
and
private
for concern
Clientelisi
potentially
one
centered
office, yields
The
for reform.
on
the ability
to
another
prospect
risk of private
regarding legislation is heightenedwhen groups with special holds on
are able to bypass the normal process110 of interest group

government
to secure benefits for themselves.
Ordinary democratic
bargaining
pol
itics may be a messy and imprecise construct, but the contrast is to the
sectional advantage
exercised by special groups that have claims both
within and without the political process.

Several
decades
ago, Professors
Harry Wellington
and Ralph
Win
ter tried to develop this intuitionwith regard to strikesby public sector
unions.111
In defining what
itmeans
to have
"a disproportionate
share
108 Obama
of donations
from small contributors than did pre
received a greater percentage
for President.
For a comparison
of percentages
of contributions
vious major
party candidates
Fin. Inst, All CFI Funding
from small donors, see Press Release,
Statistics Revised
Campaign
for the 2008 Presidential
and Updated
Primary and General Election Candidates
C?an. 8, 2010),
http://www.cfinst.org/Press/PReleases/10-01-08/Revised_and_Updated_2008_Presidential_Stati
the percentage difference was marginal, given the significantly greater amount
tics.aspx. While
of
see supra note 106 and accompanying

raised by Obama,
text, the raw number of con
tributions Obama
received from small donors was also significantly greater than the number of
such contributions past major-party
nominees had received.
109 See Press
Fin. Inst, supra note 108.
Release, Campaign
110 See Robert
to Democratic
A. Dahl,
A Preface
Theory
145 (1956) (identifying
the "'normal' American
political process" in terms of "a high probability that an active and legi
total money
can make
itself heard effectively at some crucial stage in the
timate group in the population
and
hart
of decision");
distrust
135 (1980) (similarly
ELY, democracy
john
the assurances
of the democratic
process as allowing
describing
"any group whose members
were not denied the franchise [to] protect itself by entering into the give and take of the political
process
marketplace").
111
in Public
& Ralph K. Winter, Jr., The Limits of Collective Bargaining
Harry H. Wellington
L.J. 1107, 1116, 1124-25 (1969). Winter, now a federal judge, made a sig
78 yale
Employment,
nificant reappearance
in this area of law as counsel to petitioner Buckley
in Buckley v. Voleo. 424
U.S.
, 5 (1976) (per curiam).

20
COURT ?
THE SUPREME
COMMENTS
139
and Winter
of effective power in the process of decision,"112 Wellington
actors
of in
of
with
dual
mechanisms
identified the particular danger
fluence over political outcomes: "[b]oth the political power exerted by

of the services, who are also voters, and the power of
to
union as a labor organization,
then, combine
on political
leaders either to seek new funds or to
the beneficiaries
the public employee

create great pressure
services
reduce municipal
of another
kind."113
Ifwe look beyond campaign finance as such, thereare other bodies
of law,
some
including
current
statutes,
that partially
recognize
the
similar problem of clientelist-styledouble claims on the political
process, some of which are reflected in current law. Beginning with a

contractors
to the Hatch Act, all federal government
1940 amendment
.
.
.
were prohibited
to
from "mak[ing] any
any political
contribution,
for public office or to any person for
party, committee, or candidate
any political purpose or use," during the period of contract negotiation
or performance.114
turns not on the form of organi
That prohibition
?
or an individual
a partnership,
contractor
zation as a corporation,
indeed, the Tillman Act115 has prohibited corporate contributions to

for federal
candidates
office
since
1907116
but
rather on
the idea
of elected offi
the decisionmaking
processes
engage
cials in dual fashion, both as voters in the political arena and as enti
to the same government
officials out
ties having special relationships
?
the concern
the same idea that animated
side the electoral process
that contractors
over public employees having a double hold on public policy.117While
the Court
has never come before the Supreme
this provision
Court,
of the Hatch Act against constitu
has twice upheld parallel provisions
tional challenges.118
on contractor
in federal elections
contributions
The
prohibition
in force and was
into
the
continues
1974 election re
largely integrated
112
& Winter, supra note in, atii23.
Wellington
113 Id. at 1121.
114 Hatch Act Amendments
76-753,
ch. 640, sec.
19, ? 5(a), 54 Stat.
767,
772 (repealed
115 Tillman
1976).
Act of 1907, 2 U.S.C.
L. No.
59-36, 34 Stat.
? 44ib(a)
(2006).
v. Beaumont,
See FEC
539 U.S.
146, 149 (2003)
864 (1907).
even
as
Tillman
of
the
the
Act,
applied to not-for-profit corporations).
constitutionality
(upholding
117 A variant on this
debates, posited that the
argument, put forward in the early post-Buckley
116 Pub.
violated
M. Manikas,
the equal
Campaign
817,819(1983).
118 U.S. Civil
Pub. Workers
& n.8
(S.D.N.Y.
challenge
to create loyalties among potential

to use the powers of government
Peter
supporters.
protection rights of challengers and their campaign
L. Rev.
59 Chi.-Kent
Finance, Public Contracts and Equal Protection,
for incumbents
incentives
donors
Serv. Comm'n
v. Mitchell,
1978)
by corporate
v. Nat'l
330 U.S.
(upholding
Ass'n of Letter Carriers, 413 U.S. 548, 548 (1973); United

75, 76 (1947); see also FEC v. Weinsten,
462 F. Supp. 243, 249
prohibition on contractor contributions against constitutional
contractor).

HARVARD LAW REVIEW
140
forms of the Federal
what
weakened
tions to political
Election
Campaign
[Vol. 124:118
Act of 1971,119 though some

contractors
to make
contribu
by expressly allowing
activities through PACs.120
In its current form, feder
al election law not only prohibits federal contractors frommaking
for any purpose

related to a federal election,121 but the
also makes
to solicit"
it illegal for anyone
"knowingly
such contributions.122
Whatever
the limitations of current law, the
core objective
remains to try to insulate politics from the demands
of
contributions
same statute
those who
with
would
the arguments
use public
advanced
for nonpublic-regarding
aims. As
in
and
the
context
Winter
by Wellington
power
of public employee strikes,the basic intuition is that claims on the de

cisions of political officeholders should be played out in the political
process
and
that
legal means
must
be
sought
to shut down
the me
chanisms by which politicians are induced to contort the outputs of the

political process for the gain of the few at the expense of themany.
In lightof Citizens United, the question arises whether the Consti
tution allows
to prohibit
the government
parties
in contractual
rela
tionswith public bodies not only from contributing to the campaigns

of elected officials,but also fromdirecting independent expenditures to
elections for the same officials. There
is significant constitutional
risk
in crossing
from contributions
to expenditures,
and the
the divide
overwhelming
body of doctrine reveals a high barrier to any congres
sional efforts along this line,123 with only the aging Hatch Act cases of
fering a safe harbor.
a prohibition
Nonetheless,
on contractor
expenditures
in connection
with the election of public officialswith whom they contractwould be
on the risk of improper conduct

rather than on the disfa
premised
as such. In Citizens United,
the Solicitor
vored status of corporations
use
could offer no substantial
for
the
of
General
argument
corporations
as the regulated entities, once she abandoned
the distortion rationale of
mi
of protecting management
justification
not only had no foundation
in the legisla
the Court to recount that the majority
prompted
Austin.124
The proffered
suse of shareholder wealth
tive record, but also
119 Pub. L. No.
92-225,
86 Stat. 3 (1972)
(codified as amended
in scattered
sections of 2, 18, and
47 U.S.C.).
120 pUD
L No. 94-283, ? 322(b), 90 Stat. 475, 493 (codified as amended at 2 U.S.C.

? 4410(b)
(2006)) (repealing Hatch Act Amendments
76-753, ch. 640, sec. 19, ? 5(a), 54
Stat. 767, 772).
121 2 U.S.C.
? 44ic(a)(i)
(2006).
122 Id.
? 441
2).
123 On the record
presented, Citizens United sweepingly condemned any attempt to limit inde
pendent expenditures, at least so long as premised on the theory of quid pro quo corruption: "in
dependent
expenditures,
including those made by corporations, do not give rise to corruption or
the appearance
of corruption."
130 S. Ct. at 909.
124 See id. at
904; id. at 923-24 (Roberts, C.J., concurring).

20
COURT ?
THE SUPREME
of business
entities
that fell under
COMMENTS
141
were
the prohibition
sole proprietor
ships that by definition could not be subject to agency costs imposed

The
by management.125
did not address
Court
the longstanding
view
of Justice Rehnquist that a state that charters a corporation might

have free rein to condition the grant of corporate benefits on specified
conditions,126
an
including
inability
to direct
funds
corporate
to poli
tics; that issue had no application so long as the prohibitionwas one of
federal
law, rather than of the law of incorporation.
While Citizens United gave new vitality to the fundamentalBuck
contributions
and expenditures,
it did not exhaust
ley divide between
concerns
use
the possible
of
occasioned
the
of private money
range
by
in politics. When
from
the
broader
abstracted
rhetoric on the role of
corporations, themajority opinion in Citizens United is actually less

sweeping than itmight appear. The Court is concerned onlywith the
inputs to the electoral process, not the outputs of the ensuing
legisla
in
tive process.
concluded
Thus,
overturning Austin, Justice Kennedy
thatBuckley categorically prohibited regulations aimed at "equalizing

the relative ability of individuals and groups to influence the outcome
of elections."127 Similarly,JusticeKennedy distinguished Caperton as
distinctly
about
post-election
not
conduct,
campaign
speech:
"Caper
ton's holding was limited to the rule that the judge must be recused,
not that the litigant's
political
speech
could be banned."128
A tightlydrawn prohibition premised on the effects of "pay-to

play" on public policy could potentially survive scrutinyunder Citizens
United
as a constitutional
reform. Moreover,
first step toward effective campaign

finance
bodies may welcome
such a law as a
the regulated
protection against public officials intenton using theirposition to soli

cit funds for campaign
expenditures.
Such
a measure
would
be only a
partial inroad into the accompanying world of lobbying and into the
sector of the economy
state officials as
that does not face incumbent
as
but
of
lawmak
Likewise,
contracting parties
subjects
regulation.129
ers may broaden
the protections
offered by the Hatch Act by prohibit
125 Id. at
911 (majority opinion); cf. id. at 924 (Roberts, C.J., concurring).
126 First Nat'l Bank of Bos. v.
765, 823-24
(1978) (Rehnquist, J., dissenting)
Bellotti, 435 U.S.
are created] only for the limited purposes described
in their charters and regulated
("[Corporations
by state law. . . . [T]he mere creation of a corporation does not invest itwith all the liberties en
the Court does not

joyed by natural persons . . . ." (footnote omitted) (citation omitted)). Though
's position contrasts with the Court's more categorical
address it on its terms, Justice Rehnquist
Citizens United,
assertion that "First Amendment
130 S. Ct.
protection extends to corporations."
at 899 (citations omitted).
127 Citizens
1,
130 S. Ct. at 904 (emphasis added)
United,
(quoting Buckley v. Valeo, 424 U.S.
48 (1976) (per curiam)) (internal quotation mark omitted).
128 Id. at
910.
129 For a new effort
by the SEC to combat similar pay-to-play concerns in the regulation of the
financial
Reg.
industry, see Political Contributions

(July 14, 2010) (to be codified at 17 C.F.R.
services
41,069
Investment
by Certain
? 2 75.2o6(4)-(S))

Advisers,
75 Fed.
HARVARD LAW REVIEW
142
ing contractors
from expenditures
through PACs,
[Vol. 124:118
527 groups,
or bun
dling effortswithout runningafoul of the underlying rationale in Citi

zens United.
approaches
these are partial

such
steps. Nonetheless,
Admittedly,
not
the
of
into
do offer alternative
money,
problem
insights
so much in terms of election outcomes but in terms of public policy.
an incumbent
another matter.
Whether
Congress
would
welcome
such
legislation
is
IV. Conclusion
The aim of using campaign finance law to limitthe amount and in
fluence
tional
of money
and
on elections
the other
practical.
has
run into two barriers,

in retrospect,
Viewed
one
constitu
the Supreme
Court's unsatisfying jurisprudence in this area has actually settled on

an organizing logic that grants constitutional protection to the ability
in furtherance of electoral speech. That
to spend money
logic may not
to reformers, but its failure is not one of incoherence, no matter
appeal
how difficult the Buckley divide proves to be on the implementation

technology has, if anything, reinforced this constitutional
the diffusion of information outlets places a premium on
and parties be
and
control over content, lest candidates
organization
well-heeled
and
the
hysterical poles
by
tertiary organizations
swamped
of the media.
the most
Paradoxically,
significant reform in lessening the role of
in
elections
interest
may be the one recent reform that
money
special
side. Modern
stand because
to raise money.
The com
actually facilitated the ability of candidates
of
contribution
levels
and
the
bination of BCRA's
emergence of
raising
to raise un
two
it
did
internet fundraising
allowed
candidates
things:
amounts
of
in
the
2008
and
it incen
election cycle
money
precedented
an
to
number of citizens.
raise funds from
tivized them
unprecedented
in the election of
both greater engagement
The
combination
allowed
2008 and a strengthened ability of the candidate-driven
political mes
the electoral debate.
sage to dominate
is
On this view of the aims of the electoral process, Citizens United
a distraction of limited consequence. Putting aside the elusive leveling

aspiration of equality of all individuals in privately funded campaigns,
the question
a
to enhance
finance regulation
campaign
to
and
the
corrosive
distor
system
guard against
as a means
toward incumbent entren
decisionmaking
is how
to use
electoral
competitive
tion of political
in turn requires rethinking the incentives toward candi

chment. This
date engagement
of the electorate as they compete for office, including
in the process of fundraising,
of
and a more nuanced
understanding
the corrupting
influence of incumbent reelection on the outputs of the
political
process.


Political Corruption

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Political Corruption

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ON POLITICAL CORRUPTION

Author(s): Samuel Issacharoff

This content downloaded from 193.54.110.35 on Wed, 12 Mar 2014 09:33:42 AM

The process of fundraising is demeaning to any claim of a higher call

one in proximity to this bleakest side of the electoral process. The in

In turn, and almost inescapably,

It is the logic of constrictingthe effectsofmoney that has defined

that began after

Time and again, the impetus behind the reformefforthas been to de

the corollary claim of the rightsof listenersnot to be bombarded with

for the comments

Reform Act of 2002, Pub. L. No.

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The restrictiveaspect of the reformagenda is ultimately both its

tial regulation in order to combat a poorly specified corruption of the

Academic commentaryhas long had a field day with the core ex

ry systemwould seek to limit themanner by which money is supplied

then leave unchecked

for that same

of 1974, Pub. L. No.

This content downloaded from 193.54.110.35 on Wed, 12 Mar 2014 09:33:42 AM

HARVARD LAW REVIEW

money by leaving spending uncapped.9

jected the Buckley divide between contributions and expenditures,

the pull of finance in elections, such that the perverse "hydraulic" of

finance reform efforts to

This Comment takes Citizens United as a launchingpoint to revisit

Justin A. Nelson, Note, The Supply and Demand

the stable division

Saving Buckley: Creating a Stable

of Buckley not only is conceptually flawed, but has not worked.").

attract increased contributions

This content downloaded from 193.54.110.35 on Wed, 12 Mar 2014 09:33:42 AM

powers of the purse. Beginning with Buckley, the Court recognized

ruptionmay yield a better handle on what should be the sources of

here is to start by examining the competing concerns that tend to get

focuses on the mechanisms

one by prohibition. Counterintuitively, the inducement looks to in

the concerns over political corruption,while the prohibition seeks to

tween elected officials and thosewho seek to profit from relations to

The inquirybegins inPart I with the contested terrainover the na

concept of corruption with every conceivable

temporary,Regents of the University of California v. Bakke,16 a thin

reed transformed the lexicon of political debate.

Prior to Citizens United, the Court had struggled between two

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HARVARD LAW REVIEW

corruption was defined in terms of actual quid pro quo

the only case to adopt

inequities born of wealth are compounded by the unnatural ability of

This argument logically extends to all disparities in electoral influence

17 See First Nat'l

see also McConnell

terms, the prevail

v. Bellotti, 435 U.S.

quid pro quo corruption).

in preventing "war-chest corruption"); Austin v. Mich.

567, 570 (1957) ("No less lively, although

to evoke federal action, was

Antitrust: The End of Laissez-F aire in Campaign

The Curse of American Politics, N.y. rev.

run into the teeth of Buckley:

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