Antonin Scalia's bad law, bad history: How the Supreme Court legalized corruption

Citizens United sparked a political revolution that would have left the Founders revolted

Published September 20, 2014 1:30PM (EDT)

Antonin Scalia, Zephyr Teachout         (AP/Dave Tulis/Mark Lennihan)
Antonin Scalia, Zephyr Teachout (AP/Dave Tulis/Mark Lennihan)

Excerpted from "Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United"

The gift of a framed print was at the heart of a little-noticed case that foreshadowed the Supreme Court's political theory in Citizens United. The case came to court after a trade association, Sun Diamond Growers, gave Secretary of Agriculture Mike Espy tickets to the 1993 U.S. Open Tennis Tournament worth $2,295, luggage worth $2,427 and $665 in meals, as well as the print and a crystal bowl worth $524.

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:


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.

The framers might agree with almost every sentence in this passage, but not with the logical leaps it contains. Madison would agree that access is not equated with corruption, but he would disagree that access does not lead to corruption. He would agree that favoritism is unavoidable— and donor favoritism is unavoidable— but he would disagree that we should therefore stop trying to limit it. He would agree that the donors will likely want to produce responses, but he would disagree that we should call that desire legitimate. And he would agree that democracy is premised on responsiveness, but he would disagree that responsiveness to the wealthy is the same as responsiveness to  constituents. In this string of thoughts, connected by a weak logic, Kennedy gives up on the project of separating moral and dangerous forms of responsiveness. In Kennedy’s vision, all that is left of corruption is a particular kind of quasi-contract.

Justice Stevens, citing from the majority opinion in McConnell, called the majority definition of corruption “crabbed.” But it was not just narrow; it represents an inversion of traditional American political language. Kennedy did not merely reject certain arguments, but rather laid out an affirmative vision of political life. The affirmative positive vision is Benjamin Franklin’s dystopia. Citizens, in Kennedy’s view, are supposed to use money to achieve personal benefits in the public sphere.

Between quid pro quo corruption and democratic responsiveness, Kennedy identified a third sphere of political activity, one that is troubling but not sufficiently troubling that Congress could do anything about it. There is “cause for concern,” he wrote, when “elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle.” However, he did not equate those with corruption, nor did he suggest how Congress could address these ills except through laws banning quid pro quo exchanges. If Jefferson were around to read the opinion, he would doubtless complain of its Yazooism. Like Justice Marshall, Justice Kennedy identifies a fundamental democratic threat for which he says nothing can be done.

The Polity

Kennedy’s opinion paints an apolitical vision of democracy, far removed from the founding vision. We are a nation of consumers of information, which corporations supply. Without corporate speech, “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” The government has prevented corporations’ “voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.” Corporations must not be prevented “from presenting both facts and opinions to the public.” According to Kennedy (again quoting his dissent in McConnell) the extensive “censorship” of campaign restrictions has “muffle[d] the voices that best represent the most significant segments of the economy.”

In this worldview, associational life happens through the corporate form. Corporations are “association[s] of individuals in a business corporation”; corporations are “disfavored associations of citizens.” The political life of citizens in his vision exists through and because of corporations. He counted 5.8 million for-profit corporations in 2006, worrying that all of their speech could be banned. PACs, the method through which corporations could raise and spend political money under Congress’s regime, were too demanding to satisfy the corporate associational need to speak. The reporting and administration of PACs led to “onerous restrictions,” such that “a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.” Corporate electoral speech is endowed with positive traits: “On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.”

Ironically, citizens qua citizens, instead of citizens qua Citizens United, are hard to find in Citizens United. There are “associations of citizens” (corporations) and “citizens and shareholders,” a phrase equating citizens with investors. Citizens as civic participants are passive. They are twice mentioned (once in a quote from previous cases) to support Kennedy’s argument that “speech is an essential mechanism of democracy,” a paragraph that transforms the First Amendment from a personal right lodged in an individual speaker to a disembodied right that is located in speech itself, instead of the speaker. The law “prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The clear goal of the sentence is to equate individuals (citizens) with corporations (associations of citizens). And at the end of the opinion, the Court uses this quote, “Citizens must be free to use new forms, and new forums, for the expression of ideas,” as an explanation for why corporations must have unlimited rights to spend money.

Citizen was a hotly debated word in early America. Historian John Murrin points out that the idea of ruler and ruled was so deeply entrenched in the thinking of political elites that after the Constitutional Convention it was hard to shake. Some Americans still used the word subjects instead of citizens for decades. George Washington was affronted when he was criticized between elections because he thought of elections as mechanisms for creating rulers who governed subjects, as opposed to periodic affairs in which representatives rose to positions of power but stayed in constant, dialectical relationship with the sovereign public.

The word citizen suggests, in its very invocation, a public role for the person. It implies that a person can take responsibility for a larger political community. In the theory that animated the founding era, the citizen is the essential unit of a political society. In classic liberal theory that dominated the late nineteenth and early twentieth centuries, the citizen was also central in political life. The obligations of public-dealing at least in public affairs remained. As the lobbying cases show, various obligations attended entering the public sphere. Throughout our history, a citizen may not, ethically, use government to better her own position if she knows it harms others. She might support laws that help her, but only if she also believes they will help the public as a whole.

In Citizens United, that kind of citizen is gone. If Kennedy took a traditional understanding of corruption, he might be concerned for the corruption of the citizens who were using the corporate form to influence politics, and the way in which unlimited corporate speech might exacerbate lobbying culture. Instead, the citizen becomes a consumer of information, the corporation becomes an “association of individuals,” and corruption becomes democratic responsiveness. It is a remarkable conceptual triple Lutz.

To be fair, there are serious and difficult issues that Citizens United raised, particularly in an Internet era where it is difficult to distinguish between corporations that own “the press” and corporations that make independent expenditures. I do not agree with Justice Kennedy’s resolution of those issues, but his misreading was at least partly provoked by living in a time where the fundamental distinction between the corporation and the press, for instance, is being erased. However, the replacement of corruption with a quid pro quo formulation is simply untenable as a matter of legal history. Citizens United was a revolution in political theory, disguised as a definitional disagreement.

Excerpted from "Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United" by Zephyr Teachout. Published by Harvard University Press. Copyright 2014 by the President and Fellows of Harvard College. Reprinted by permission of the publisher. All rights reserved. 

By Zephyr Teachout

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