The Adversary First Amendment by Redish Martin H.;

Author:Redish, Martin H.; [Redish, Martin H.]
Language: eng
Format: epub
Publisher: Stanford University Press
Published: 2013-08-15T00:00:00+00:00

CHAPTER FIVE

The Anticorruption Principle, Free Expression, and the Democratic Process

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease.

James Madison, The Federalist No. 10

A number of scholars and jurists have long deplored what they see as the corruption of the American political process.1 In their view, too much money is having too large and unsavory an impact on American politics, simultaneously distorting political power toward the wealthy and seductively drawing politicians away from pursuit of the public interest.2 One of the leading scholars advocating such a view, Professor Zephyr Teachout, has gone so far as to suggest that there is actually an “anticorruption principle” embedded in the Constitution, logically implying that political corruption rises to the level of a constitutional violation.3 This principle posits that, as a matter of American history and constitutional law, “officeholders” are constitutionally obligated to act in the “public interest” and in pursuit of the “common good”; anything less is deemed to amount to “corruption.”4

The Supreme Court’s decision in Citizens United v. Federal Election Commission only intensified scholars’ and jurists’ concerns about the dangers of political corruption.5 In Citizens United, the Court held that the section of the Bipartisan Campaign Reform Act (BCRA) limiting direct corporate political expenditures for expression during a presidential campaign violated the First Amendment.6 In a strongly worded dissent, Justice Stevens relied on arguments grounded in the anticorruption principle as specifically fashioned by Professor Teachout to justify the BCRA’s suppression of corporate political speech.7 Justice Stevens’s dissent, like Professor Teachout’s version of the anticorruption principle, relied on a broad definition of corruption, one extending far beyond the simple act of bribery.8 According to Justice Stevens, “There are threats of corruption that are far more destructive to a democratic society than the odd bribe.”9

Justice Stevens’s opinion in Citizens United is not the first time that members of the Court have sought to uphold restrictions on political speech in the name of anticorruption. In Austin v. Michigan Chamber of Commerce, the Supreme Court upheld a state law that restricted corporate political expenditures in state elections.10 The Austin Court considered Michigan’s law to be “aim[ed] at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.”11 The Court’s decision in Austin, as Justice Scalia observed in his dissent, “endorse[d] the principle that too much speech is an evil that the democratic majority can proscribe.”12 The Austin decision, he said, allowed for “anything the Court deem[ed] politically undesirable [to be] turned into political corruption—by simply describing it as politically ‘corrosive.’”13

The anticorruption principle, as developed by Professor Teachout, seeks to provide important constitutional grounding for the theories relied on by the Austin majority and Justice Stevens’s opinion in Citizens United.

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