Document Type

Article

Publication Date

Winter 2010

Publication Title

First Amendment Law Review

Volume

9

Issue

2

First Page

363

Abstract

Guided by a pair of decisions from 2010 (Citizens United and Skilling), this article investigates a pivotal but overlooked dispute between the Supreme Court and Congress over the acceptable contours of public corruption law. Each case narrowly relies on principles and precedents that appear only tangentially related to corruption. Yet in historical context, these cases emerge as only the latest judicial nullification of broad and flexible congressional anticorruption legislation. Through parallel examination of campaign finance regulation and honest services law, this article suggests a subtle but striking pattern: when Congress has advanced expansive, flexible anticorruption measures, the Supreme Court has tenaciously constrained such measures in favor of narrowly drawn bright-line rules. This article argues that the disagreement originates in the institutions' differing postures towards anticorruption. Certain congressional action has promoted civic-minded public conduct and thus facilitated "deliberative" examination of political motives. However, the Supreme Court has generally blocked broadly constructed anticorruption measures because their enforcement threatens constitutionally protected individual rights. Thus, the Court has left standing a "competitive" anticorruption regime which presumes a market-like political setting populated by self-interested actors. This unspoken divergence has shaped corruption law and with it the nature of American politics. The Court's intractability poses a dilemma for future anticorruption reform. Policy-makers must either defer to the Court, but relinquish the possibility of deliberative anticorruption achieved through traditional regulatory and prosecutorial means, or force a reconsideration of individual rights in the context of anticorruption enforcement.

Download

Included in

Law Commons

Share

COinS