The Supreme Court sided with Sun Diamond, against every court of appeals decision before 1999. It held that the government had to prove that the gift was given for a particular official act. Sun Diamond makes it nearly impossible to prove a violation of the gratuities act for any gift given before an official action. Sun Diamond effectively turned the bright-line gratuities statute into a more demanding bribery statute.

The opinion shows a lack of understanding of the corrosive power of gifts and subtle influence, and no appreciation for the need for clear rules, because of the difficulty of proving connections between gifts and acts. Instead the Court concluded that a clear rule would lead to “absurdities.” Justice Antonin Scalia,writing for the Court, found it incomprehensible that the statute could criminalize “a complimentary lunch for the Secretary of Agriculture” given by Sun Diamond, if he had matters before him that affected their work. He apparently never heard the adage, “There ain’t no such thing as a free lunch.”

Scalia outright rejected the argument that the statute criminalized the “buy[ing of] favor or generalized goodwill from an official who either has been, is, or may at some unknown, unspecified later time, be in a position to act favorably to the giver’s interests.” He rejected the claim that it criminalized presents “motivated, at least in part, by the recipient’s capacity to exercise governmental power or influence in the donor’s favor.” If you read the case as political theory, instead of statutory interpretation, the Court suggests that using money to influence power through gifts is both inevitable and not troubling. In so doing, it set the table for the Court’s major corruption decision in Citizens United.

Justice Scalia began the Sun Diamond opinion with this sentence: “Talmudic sages believed that judges who accepted bribes would be punished by eventually losing all knowledge of the divine law.” Eleven years later, Scalia and the other justices in Citizens United seemed to forget all knowledge of what in America is the closest we get to divine law— the laws of human nature and democratic politics.

Democratic responsiveness

Nine years after Sun Diamond, a small, conservative nonprofit corporation named Citizens United wanted to air a ninety-minute movie about Hillary Clinton on DirecTV. It was right before the 2008 Democratic presidential primaries. Citizens United also wanted to air thirty-second advertisements for the movie on broadcast television. The transcript of one of the ads went like this, with different lines spoken by different people:

“Questions”

Who is Hillary Clinton?

She’s continually trying to redefine herself and figure out who she is . . .

At least with Bill Clinton he was just good-time Charlie. Hillary’s got an agenda . . .

Hillary is the closest thing we have in America to a European socialist . . .

If you thought you knew everything about Hillary Clinton . . . wait ’til you see the movie.

The Federal Election Commission moved to block the movie and the advertisements for violating the Bipartisan Campaign Reform Act (BCRA), a 2002 campaign-finance law that prohibited corporate-funded campaign commercials within thirty days of a presidential primary. Citizens United challenged the decision. According to its lawyers, it was a documentary, it was not offered over broadcast, and BCRA did not apply. According to the government, it was a ninety-minute ad designed to hurt Mrs. Clinton in the primaries, the distribution counted as broadcast, and BCRA did apply.

During the initial oral argument of the case in 2008, Justices Scalia, Kennedy, and Roberts asked questions that implied something far more expansive, and declaratory, than statutory interpretation. They wanted to hear arguments about whether the law banning corporate election spending could be justified at all. With the nature of the case changing, the Court requested that the parties write new briefs and reargue the case, explaining the constitutional legitimacy of independent corporate spending limits. However, there was no chance to research the underlying factual issues. No record was created to address these new foundational constitutional questions.

The case came back to the Supreme Court in 2009. Ted Olson, the lawyer for Citizens United, argued that there was no justification for the law because there is “no quid pro quo there [when corporations spend money in campaigns], and if there is it would be punishable as a crime.” In essence, his claim was that Congress’s power to protect elections from corruption was limited to the power to punish and deter explicit bribes. Anything else is not corruption.

In January 2010 Justice Anthony Kennedy, writing for a majority of the Court, adopted Olson’s argument and struck down all limits on corporate expenditures. The decision was within the Buckley framework and assumed that political spending is protected speech, and that nothing except corruption or the appearance of corruption could justify restrictions on that speech.

Citizens United is a complicated opinion, with many moving parts. But to my mind, the radicalism of the opinion, even beyond the flawed framework of Buckley, rests on two connected determinations. First, the Court found that the First Amendment protects political speech regardless of the identity of the  speaker. Second, the Court found that no sufficiently important countervailing governmental or constitutional goal was served by limiting corporate political advertising. It conclusively held that corruption was the only possible government interest that might permit First Amendment restrictions and that anticorruption interests were not served by the law. Political equality concerns are not constitutionally legitimate reasons to pass such a law.

The opinion comprehensively redefined corruption, and in so doing, redefined the rules governing political life in the United States. As a matter of federal constitutional law, corruption now means only “quid pro quo corruption.” And quid pro quo exists only when there are “direct examples of votes being exchanged for . . . expenditures.” Corruption does not include undue influence and cannot flow from donors trying to influence policy through campaign contributions, unless these donors are utterly crass. “Ingratiation and access” are not corruption. Corruption does not include “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.” And perhaps as surprisingly, Kennedy held that as a matter of law— regardless of the facts that are presented—“independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

But Citizens United did not merely exclude alternate definitions of corruption. It actually took that which had been named corrupt for over two hundred years and renamed it legitimate and the essence of responsiveness. Using ideas that were originally espoused in a dissenting opinion in McConnell, Kennedy equated “favoritism and influence” with “democratic responsiveness.” The jump from unavoidable influence to the legitimacy of influence, by equating it with positive values of responsiveness, happens in five short sentences. Even more than the adoption of quid pro quo, this passage represents a fundamental assault on traditional ideas of corruption:

The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.