The Concept of Corruption
In Campaign Finance Law

Thomas F. Burke[1]

In Buckley vs. Valeo[2], the Supreme Court put the concept of corruption at the center of campaign finance law. The Court held that only society's interest in preventing "corruption and the appearance of corruption" outweighed the limits on free expression created by limits on campaign contributions and expenditures. Other goals, such as equalizing the influence of citizens over elections, limiting the influence of money in electoral politics, or creating more competitive elections, were rejected as insufficiently compelling to justify regulating political speech. The Court's focus on corruption has been reiterated in a series of cases following Buckley which have decided whether local laws and various provisions of the Federal Election Campaign Act violate the First Amendment.[3] Barring a major shift in this area of law, corruption is the criterion by which the constitutionality of further reforms in campaign finance regulation will be measured.

The Court's emphasis on "corruption and the appearance of corruption" has stimulated criticism on several fronts. From the left, the Court is criticized for not giving credence to other interests in campaign finance regulation.[4] From the right comes the criticism that the Court has been inconsistent in its application of the corruption standard.[5] Others find the problem in the term "corruption" itself. Frank Sorauf argues that while the phrase "has a ring that most Americans will like . . .its apparent clarity is deceptive and its origin is at best clouded."[6] Yet whatever its flaws, politicians, activists, judges and even picky academics are constantly drawn to employing the concept of corruption in their claims about the campaign finance system. I hope in this article to give some sense of both the possibilities and the limits of understanding campaign finance as an issue of corruption.

The first part of the article briefly considers the concept of corruption and the ways in which academic commentators have explored it. The second part analyzes how "corruption" has been employed in a series of Supreme Court cases beginning with Buckley. Finally the third part defends what I call the "monetary influence" standard of corruption as the most appropriate one to use in controversies over campaign finance. This defense turns out to be a rather complex enterprise; it requires a turn back to the foundations of representative democracy. Any adequate standard of corruption, I argue, must be grounded in a convincing theory of representation.

I. The Concept of Corruption

Even the dictionary definitions of corruption suggest that it is a tricky term. The Oxford English Dictionary gives nine basic definitions of corruption, but there is an element common to all: a notion that something pure, or natural, or ordered has decayed or become degraded. Corruption was used in medieval times to denote physical processes such as infection or decomposition.[7] When corruption is proclaimed in political life it presumes some ideal state. Corruption is thus a loaded term: you can't call something corrupt without an implicit reference to some ideal. In order to employ the concept of corruption in the context of a political controversy, such as that over campaign finance, one must have some underlying notion of the pure, original or natural state of the body politic.

Not surprisingly, then, academics have had difficulty arriving at satisfactory criteria for deciding what is corrupt. James Scott divides attempts into three approaches: legal norms, public opinion and the public interest.[8] A legal norms approach focuses on the laws and formal rules of a given society in determining what is corrupt and what is not.[9] While such an approach may be useful in comparative research, it seems unlikely that it can help us in a discussion of a legal controversy.[10] After all, we can't very well refer to the rules of our society when the issue is what those rules should be.

The public opinion approach is similarly problematic.[11] It may seem sensible to define what is corrupt by finding out what most people in a given society consider corrupt, but on most of the interesting questions public opinion is likely to be ambiguous. As Scott points out, there is no clear, non-arbitrary way to decide what level of social consensus is necessary before we declare a given act corrupt.[12] Should a mere majority be sufficient, or should unanimity be required? Should the opinions of the more educated, those better informed, or those more interested in politics, be given more weight? Public opinion will always be an unsteady guide except in the easy cases.

Finally there is the public interest approach, which involves defining some ideal against which corrupt conduct can be measured. This approach merely gauges what is corrupt in terms of an even more contested concept, the "public interest." Political scientists, the group that has thought the most about the concept of corruption, have had trouble even agreeing that there is some such thing as the public interest, much less defining what that interest involves.[13] Thus all three approaches have serious problems.

Fortunately, for the purposes of this article I need not pretend that there is some unifying, global criterion of corruption. Rather, my task is to give some sense to the term as it is used in the discussion of campaign finance law. Yet even in this more limited realm it is hard to see where we are to draw our standards from.

II. Corruption and the Campaign Finance Cases

Buckley and its progeny are complex, confusing cases. At times even passages in a single opinion seem to contradict each other. Thus it is no surprise that commentators have differed in their interpretation of the Court's treatment of "corruption." Lillian BeVier, writing in 1985, concludes that under the Court's rulings the "only activity that may become the target of corruption-preventing legislation is that of securing or attempting to secure 'political quid pro quos from current and potential officeholders.' "[14] By this criterion, only pre-arranged deals--trades of votes for money--qualify legally as corrupt. Paul Edwards further develops the quid pro quo standard of corruption and claims that with Austin the Court made a "dramatic change" in its approach by veering away from this limited definition of corruption to a much broader one, influenced perhaps by Rawlsian liberalism.[15] Frank Sorauf, by contrast, finds hints even in the earlier cases that the Court's concerns went beyond pure quid pro quos.[16]

While quid pro quo is no doubt a major theme in the campaign finance cases, I think Sorauf is right to suggest that the Court went well beyond this standard even before Austin. In the series of cases beginning with Buckley and ending with Austin, three distinct standards of corruption that are advanced, though at several points the Court blurs them. I label them quid pro quo, monetary influence, and distortion.

The quid pro quo standard is simply that it is corrupt for an officeholder to take money in exchange for some action. The money may be a bribe for personal use or a campaign contribution. The deal is explicit, with both sides acknowledging that a trade is being made.

The monetary influence standard is broader. Here the root idea is that it is corrupt for officeholders to perform their public duties with monetary considerations in mind. The influence of money is corrupting under this standard even if no explicit deal is made.

The third standard of corruption is distortion. The ideal behind this standard is that the decisions of officeholders should closely reflect the views of the public. Campaign contributions are corrupting to the extent that they do not reflect the balance of public opinion and thus distort policymaking through their influence on elections.

The three standards of corruption--quid pro quo, monetary influence and distortion--have been jumbled together in the corpus of campaign finance law.

Quid Pro Quo Versus Monetary Influence

In Buckley the Court struck down limitations on campaign expenditures, but upheld contribution limits. Contributions, the Court said, were less speech-like than expenditures and thus deserved lesser protection. But contributions are also more regulatable because they, unlike expenditures, can be a source of corruption by influencing the conduct of representatives. While the Court at first emphasizes the danger of quid pro quos in discussing the problem of corruption,[17] it also notes that the state's interest goes beyond mere bribery: "But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action."[18] This pattern is repeated in succeeding cases. The Court mentions the quid pro quo standard, but also suggests that corruption goes beyond pre-arranged trading of votes for contributions. Here the Court is hinting at the monetary influence standard.

In National Bank of Boston v. Bellotti, the Court struck down a Massachusetts law forbidding corporations and banks from spending money in referenda campaigns.[19] The Court followed Buckley in reasoning that while the First Amendment interest in such independent expenditures is high, there is no threat of corruption because in referenda elections there is no candidate to corrupt. In a footnote the majority opinion distinguished the Massachusetts law from the longstanding Federal Corrupt Practices Act, which bars corporate spending in candidate elections:

The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. The importance of the governmental interest in preventing this occurrence has never been doubted.[20]

Here again the Court seems to go beyond the concern about quid pro quo vote-trading, this time to characterize corruption as "the creation of political debts." Four years later, in FEC v. National to Right Work Committee, the Court again discussed the need to insure that corporate "war chests" not be used to create "political debts."[21]

For the most part in these early cases the Court does little to explain its notion of corruption, and we are left to read between the lines. But in the 1984 case of FEC v. National Conservative Political Action Committee, the majority opinion by Justice Rehnquist offers a definition:

Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.[22]

Here a much wider standard of corruption appears with a restatement of the familiar quid pro quo as a "hallmark." Rehnquist says that elected officials violate their public trust when they are influenced by the "prospect of financial gain to themselves or infusions of money into their campaigns." If Rehnquist had wanted to limit the corruption interest to quid pro quos, he could simply have said so. Instead he calls quid pro quo vote-trading the "hallmark" of political corruption. Again in this passage the Court seems to be acknowledging the second standard, the monetary influence standard of corruption.

Rehnquist is more clear in another passage, when he relies on Buckley in distinguishing the regulation of expenditures from regulations governing contributions. Rehnquist concludes that expenditures made independently by a political action committee to support a particular candidate pose little danger of corruption. Here he emphasizes that "the absence of prearrangement and coordination undermines the value of the expenditure to the candidate, and thereby alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from a candidate."[23] Overall, then, in NCPAC the Court seems to be moving towards the more narrow quid pro quo standard.

Distortion

That movement is reversed in the 1986 case FEC v. Massachusetts Citizens for Life, Inc.[24] Justice Brennan, writing for the majority, held that a state law restricting independent expenditures for candidate elections was overbroad as applied to the appellee, a non-profit corporation. Brennan argued that advocacy groups such as MCFLI should be distinguished from profit-seeking corporations, who pose a real danger of distorting the political process through their accretion of wealth. Citing several earlier corporate cases, Brennan said the precedents reflected concern "about the potential for unfair deployment of wealth for political purposes." Non-profit corporations "do not pose that danger of corruption."[25] This is the only point in the opinion in where Brennan clarifies, even by implication, just what he means by corruption. Brennan's main argument is that corporate political spending poses a threat to the "political marketplace" because the "resources in the treasury of a business corporation . . .are not an indication of popular support for the corporation's political ideas."[26] Here Brennan embraces the distortion standard.

Austin v. Michigan Chamber of Commerce, decided in 1990, amplifies this theme and links it more clearly to the concept of corruption. The case concerned an independent expenditure made by the Chamber of Commerce to promote a candidate for the U.S. House. In Buckley the Court had concluded that such independent expenditures posed a relatively small risk of corruption since candidates were far less likely to feel a debt to independent spenders than contributors. In upholding a law barring such independent expenditures, the Court could merely have taken issue with this assessment and declared that independent expenditures also create political debts.[27] Instead, Justice Marshall's opinion defines a new concept of corruption, borrowed partly from Brennan's opinion in MCFLI:

Regardless of whether [the] danger of "financial quid pro quo" corruption . . .may be sufficient to justify a restriction on independent expenditures, Michigan's regulation aims 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 and that have little or no correlation to the public's support for the corporation's political ideas.[28]

Here corruption is no longer tied to the conduct of the officeholder, but instead concerns the power of the corporate spender in the political marketplace. Although some of Marshall's argument was anticipated in MCFLI, the Austin opinion represents the flowering of the distortion conception of corruption.

In a typically bombastic dissent Justice Scalia castigated the majority's "New Corruption":

Under this mode of analysis, virtually anything the Court deems politically undesirable can be turned into political corruption--by simply describing its effects as politically "corrosive," which is close enough to "corruptive" to qualify. . .The Court's opinion ultimately rests upon that proposition whose violation constitutes the New Corruption: expenditures must "reflect actual public support for the political ideas espoused." This illiberal free-speech principle of "one man, one minute" was proposed and soundly rejected in Buckley.29

In Buckley the Court had rejected an equalization goal for campaign finance law, concluding that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment".[30] Scalia charged that the majority had simply resurrected the equalization theory in a new guise--the New Corruption.

Evaluating The Standards

Austin's distortion standard of corruption has broad implications. As noted above, to use the term "corruption" one must have some underlying notion of an ideal state. Marshall's opinion suggests that in his ideal state expenditures are calibrated to actual public support. A deviation from this constitutes corruption and may be regulated. Because just about any private financing scheme is likely to have "distortions"--to not reflect underlying public support--Marshall's principle would justify very strong regulatory measures.[31] Indeed it is difficult to square Marshall's principle with any system of private financing for political campaigns.

Even those who might be attracted to Marshall's ideal, or think that corporations can constitutionally be kept from throwing their monetary weight around, may shrink from describing this as a problem of corruption. "Corruption" can be used to describe any movement away from an ideal; this is the sense in which illness is a corruption of the body. But in politics "corruption" has typically has a more specific connotation, that an officeholder has been led by private inducements away from the ideal of disinterested public service. As Justice Scalia charges, the majority opinion in Austin takes advantage of this connotation by conflating the relatively uncontroversial ideal of disinterested public service with the far more problematic ideal of "undistorted" campaign finance. The rhetoric of corruption is used to champion an ideal so sweeping that, if taken literally, would condemn any imaginable private campaign finance system--and perhaps even public financing systems in which the funding is not carefully calibrated to public support.

But while Austin's standard of corruption is too broad, the quid pro quo standard is too narrow, as the Court has recognized from time to time. Indeed, if only pure vote-trading is considered corrupt, it is difficult to see how the Court could uphold any contribution limits.

The quid pro quo conception focuses on pre-arrangement as the truly corrupting aspect of vote-trading. Under this standard, it does not matter whether public officials are influenced in their stands on public policy by contributions so long as there is no formal deal made. But deals--trades of votes for money--were outlawed long before the advent of campaign finance regulation. As Daniel Lowenstein has pointed out, many courts have held that campaign contributions can be bribes, and bribery convictions based on campaign contributions have been upheld in many jurisdictions.[32] Traditionally in First Amendment law, regulations which impair free speech must be "narrowly tailored" to achieving a compelling state interest. If Congress could constitutionally regulate only quid pro quo corruption, it is difficult to see why it would be allowed to go beyond simple bribery laws. Why regulate so much legitimate "speech" in an effort to stop bribery when you can instead simply outlaw bribery? Contribution limits are only distantly related to the goal of stopping quid pro quo vote-trading, and certainly would never meet the Court's "narrowly tailored" test.[33]

The truth is that the contribution limits the Court upheld in Buckley were aimed at far more than quid pro quo corruption. The Buckley Court recognized this when it concluded that "laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action."[34] Instead the Court sees the problem as one of "political debts," that officials are "influenced to contrary to their obligations of office by the prospect of . . .infusions of money into their campaign."[35] The problem recognized here is one of generalized financial influence on legislators, not pure vote-trading.[36]

Indeed, it is not clear why a quid pro quo is any more corrupting than a contribution which influences a public official more indirectly.[37] In bribery law it makes sense to require that there be evidence that the official explicitly agreed to trade a vote for a contribution. Otherwise, we will never know for sure if she was influenced by the money; there will always be doubt about whether the gift was taken innocently.[38] But the object of bribery laws is not the deal itself; the deal is just evidence that influence has taken place. The reason we make bribery illegal is that we don't want officials to be affected by monetary considerations, not that we have a particular animus against deal-making. Even in bribery, then, the interest is not quid pro quo corruption, but the corruptive influence of money. Campaign finance laws can address this problem by creating a contribution system that limits the influence of money. Thus it makes no sense to say that the contribution limits are aimed only at quid pro quo corruption.

At times Court opinions seem to realize this. At other times the justices lapse back into quid pro quo language, perhaps because the justices realize the open-endedness of considering general financial influence a problem. If the ideal is a system in which public officials are not influenced by campaign contributions, how broadly should campaign finance laws be allowed to sweep? One can imagine at the least that more extensive campaign regulation would be upheld under this standard.[39] Nonetheless, the Court in its more thoughtful moments has employed the monetary interest standard. When the prospect or the receipt of campaign money influences the behavior of public officials, they are corrupted, whether or not a deal has been made. Although the goal of stopping this kind of corruption must be weighed against First Amendment interests, the Court has upheld contribution limits on this basis.

III. Does Money Corrupt?

I have argued that the Court is on firmest ground when it adopts the "monetary influence" standard of corruption. But what is it about monetary influence--or for that matter quid pro quo trading--that is so corrupting? On what basis can we say that public officials who are influenced by contributions are corrupt?[40] Because the Court does not develop its own account of what makes an action corrupt, we must go beyond the campaign finance cases to answer these questions.

Daniel Lowenstein argues that the "payment of money to bias the judgment or sway the loyalty of persons holding positions of public trust is a practice whose condemnation is deeply rooted in our most ancient heritage."[41] Lowenstein believes that there is a strong cultural norm in our society that public officials not be influenced by money, either in the form of gifts or campaign contributions. As evidence, Lowenstein cites the writings of various scholars on the subject and the law of bribery, which in many jurisdictions makes quid pro quo campaign contributions illegal.[42] Thus Lowenstein appeals to the public opinion and legal norms approaches in defining financial influence as corruption. As noted above,[43] these are problematic appeals. Lowenstein has no polling data to show that the vast majority of Americans agree with his norm, but even if he did we might still contend that Americans are simply misguided in believing that financial influence is corrupting. Martin Shapiro argues that Lowenstein, by operating as a "cultural anthropologist," may be able to discover a societal norm, but such a norm cannot be the basis of constitutional law: "There is a cultural norm of racism in our society. Does the existence of such a norm give constitutional legitimacy to racist statutes?"[44] Shapiro maintains that Lowenstein cannot define what is corrupt merely by reference to social norms or legal principles. Even the fact that bribery statutes often cover campaign contributions traded for political favors is not determinative. Only a theoretical argument can answer the question. Everything else is question-begging.

Thus any serious thinking about corruption must move us back to first principles, to fundamental beliefs about government. The debate over the place of corruption in campaign finance ultimately turns on the theoretical foundations of representative democracy. In several recent articles, Dennis Thompson has grounded his approach to legislative ethics in a theory of representation which stresses deliberation. The debate between Thompson and Bruce Cain, another expert on campaign finance, illustrates the deep roots of the controversy over corruption.

Representation and Deliberation

Thompson advances a seemingly simple notion: In a functioning democracy, representatives must deliberate about the public good. Private interests have a legitimate place in a democracy as long as they subject themselves to "the rigors of the democratic process." To get their way, private interests must convincingly articulate public purposes.[45]

Private interests which attempt to bypass this deliberative process are "agents of corruption."[46] They tempt representatives to ignore public purposes and to pay attention to influences "that are clearly irrelevant to any process of deliberation."[47]

What influences are clearly irrelevant? Thompson gives as his primary example personal gain. Personal gain tends to take time and attention away from what should be the job of the legislator and can overwhelm the "unsteady inclination to pursue the public good."[48] Thus bribes, for example, corrupt the deliberative process.

Campaign contributions, Thompson says, are different from bribes because they are a necessary part of the political process. Moreover, Thompson says we should admire those who, within limits, pursue political gain, including campaign contributions.[49] But campaign contributions corrupt deliberative democracy when they influence representatives to change their stands or refocus their energies.[50] Thus Thompson accepts what I have called the "monetary influence" standard of corruption. For him, campaign contributions that seek to influence elections are vital to the democratic process, but those that seek to influence the representatives' decisions corrupt the process. Thompson shows how a deliberative theory of representation leads to a "monetary influence" standard of corruption.

In a recent article, however, Bruce Cain rejects both deliberative theory and the monetary interest standard. Cain argues that deliberative theory is "excessively restrictive and very naive," and that it is out of step with the philosophical foundations of American government.[51] Further, Cain suggests that Thompson's approach relies on Edmund Burke's trustee notion of representation, which, Cain claims, is not widely accepted.

Instead Cain offers his own "procedural fairness" vision of democracy, drawn from the pluralist tradition in political science. He groups under this label theorists such as Joseph Schumpeter, Anthony Downs, Robert Dahl and James Madison (or at least, Dahl's rendition of Madison). What these otherwise disparate theorists share, according to Cain, is an approach to politics that is nondeliberative. Each treats democracy as a matter of preference aggregation, and each expects representatives to act as delegates in order to be elected.[52] For proceduralists, Cain seems to conclude, the notion of corruption in campaign finance is simply meaningless. If, after all, politics is simply a matter of counting preferences, campaign contributions can be seen as a kind of vote, a way to signal the direction (and intensity) of one's desires. Money is then just another currency in the counting process, one which advantages some groups and disadvantages others. The only real issue in campaign finance, according to Cain, is how to count fairly, and opinions about this will naturally differ depending on which groups one favors.[53]

The conflict between Thompson and Cain is so fundamental that it is difficult to arbitrate. Perhaps the best place to start with Cain's contention that deliberative theory is a "nontraditional conception of American democracy."[54] This is a surprising claim, for as Thompson argues, deliberation was at the center of the Framer's conception of representative government.[55] The Federalist Papers, for example, justify many aspects of the Constitution--separation of powers, bicameralism, methods of election, size of legislative bodies--in terms of their effect on the deliberative process. The aim was to replace the excess of passion and "local spirit" that had overtaken state legislators with a concern for "the permanent and aggregate interests of the community," or as the Federalist Papers variously puts it, "the good of the whole," "the public weal," "great and national objects," "the great and aggregate interests," the "common interest," the "common good of the society," and the "comprehensive interests of [the] country."[56] Indeed, Madison's famous defense of an extended republic in Federalist #10 was built on deliberative theory. He argued that such a republic was more likely than other systems of government

to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be less likely to sacrifice it to temporary or partial considerations.[57]

Madison was, of course, a subtle thinker who understood the complex interplay of interests and deliberation, so one is likely to oversimplify his views by selective quotation. Yet the deliberative aspects of his thought cannot be denied. Over the past three decades, scholars in law, history and political science have demonstrated the profound influence of republican theory, with its emphasis on deliberation about the public good, on the thought of the Framers, particularly Madison. The historian Gordon Wood concludes that Madison and the Federalists were far from "modern-day pluralists":

They still clung to the republican ideal of an autonomous public authority that was different from the many private interests of the society. . .Nor did they see public policy or the common interest of the national government emerging naturally from the give-and-take of these clashing private interests. . .Far, then, from the new national government being a mere integrator and harmonizer of the different special interests in the society, it would become a "disinterested and dispassionate umpire in disputes between different passions and interest in the State."[58]

The Framers, in sum, embraced deliberative theory.

The elitism of the Framers, who envisioned rule by a virtuous gentry, soon fell out of favor.[59] But their concern for deliberation has lived on. A long list of studies highlights the continuing importance of deliberation in American democratic theory and practice. As Philip Selznick writes in a recent review, "Deliberative democracy is moving to the forefront of political theory."[60] But attention to deliberation is hardly limited to theorists. Political scientists have confirmed the central role of deliberation in American government in their study of legislatures, courts, bureaucracies and the presidency. In his recent book on deliberative theory and practice Joseph Bessette cites 33 such studies.[61]

A few examples should suffice. Cass Sunstein argues, based on a review of the fundamentals of constitutional jurisprudence, that we live in a "republic of reasons." Courts, he says, will strike down laws based only on "naked preferences," the mere assertion of private power. To act constitutionally, legislators must provide a public-regarding rationale for their policies. It is through the process of deliberation that these rationales are articulated and judged.[62] Martha Derthick and Paul Quirk trace the influence of ideas and deliberation on regulatory reform of the telecommunications, trucking and airline industries in The Politics of Deregulation.63 Richard F. Fenno finds that making "good public policy" through careful study of issues is the dominant goal of representatives who seek a position on the Education and Labor and Foreign Affairs committees.[64] As Joseph Bessette has suggested, when political scientists actually examine the process of policymaking they find plenty of deliberation going on.[65]

Deliberative theory is untraditional only among some pluralist political scientists, who, beginning with Robert Dahl, have downplayed the republican and deliberative aspects of American government. The tradition from which Cain works starts not with Jefferson, Hamilton, or Madison, but rather Arthur Bentley, David Truman and Dahl.[66] The vision of American democracy as preference aggregation[67] is widespread among political scientists and public choice theorists, but outside of these narrow realms it is hard to say how well it resonates. Whatever popular opinion would hold, though, Cain clearly underestimates the centrality of deliberative theory in American political thought and practice.

Cain's argument that Thompson relies on a trustee theory of representation, however, points to a more troubling issue.[68] In fact Thompson attempts to distinguish his approach from the trustee notion. He points out that the views of the constituency and the views of the representative about what is in the public interest are likely on many issues to coincide. Where they do conflict, however, Thompson says that representatives may voice their constituents' views in order to give them a hearing in the deliberative process. As long as the process itself is deliberative, as long as it focuses on the merits of the issue, it does not matter whether the individual representative is delegate or trustee.[69] And this suggests an important difference between trustee/delegate theories of representation and deliberative theory: Where the trustee/delegate dichotomy focuses on the level of the individual representative, the deliberative theory leads us to look at what is happening to the institution as a whole.

Yet this refinement creates another difficulty, one that Thompson does not address. If in a deliberative democracy representatives can in some circumstances act as delegates for their constituents, why can they not also act as delegates for their contributors?[70] I think the answer is that Thompson allows for only a narrow exception to the basic rule that representatives must deliberate. In giving voice to the views of their constituents, representatives can on some occasions move deliberation forward. But if a significant number of representatives are acting solely as delegates, ignoring not only the arguments of others but even their own views, deliberative democracy is imperiled.[71] This corruption of the deliberative process is much more likely when representatives fall under the sway of their contributors. Contributor-influenced representatives are unlikely to be candid about the motivation for their actions; the last thing they want is an open examination of the quality of their reasons and their process of deliberation. Thus where contributor-influenced representatives predominate, legislative deliberation becomes a sham. By contrast, constituent-influenced legislators can acknowledge the pressures on them and, where their own views conflict with those of the constituents, can even deliberate publicly about how the two can be reconciled.[72] Constituent influence can itself become a matter for deliberation in a way that contributor influence never can. Hence contributor influence is much more likely than constituent influence to have a pernicious effect on deliberative democracy.

Deliberative theory, then, provides a grounding for the monetary influence standard of corruption. If politics is nothing more than a market, and politicians nothing more than retailers, than there is no need for deliberation, and no necessary problem with "bribery" through the campaign finance process. That is the vision behind Cain's procedural theory. But if representation involves deliberation about the public good, then contributions that influence representatives are a corruption of the democratic process.

Deliberative theory is well-grounded in American political philosophy and practice. It is an attractive, approachable ideal. Its appeal explains why, despite criticisms like those voiced by Cain, academic, legal and popular debate about campaign finance continues to revolve around notions of corruption.

IV. The Utility of "Corruption"

I have argued that the concept of corruption can be applied to one of the major problems in campaign finance, the influence that contributors get on the actions of representatives. The monetary influence standard of corruption has been invoked in several Supreme Court cases, but the Court has drifted in its treatment of corruption. At some points the Court characterizes the issue as a matter of vote trading, of quid pro quos. More recently the Court has portrayed the problem as one of "distortion" of public opinion. Nonetheless, I believe the Court has been on firmest ground when it has recognized the issue as one of contributor influence.

Of course this recognition would not by itself determine the constitutionality of any particular regulatory scheme. Indeed it is just one of the factors involved. People may balance the goal of preventing corruption and the First Amendment interests at stake differently even though they recognize the legitimacy of both claims. Still, by focusing on the meaning of corruption I hope I have given some sense of its place in this mix.

Clearly corruption is a limited concept. It cannot encompass all the concerns we have about the campaign finance system.[73] Because so much stress has been put on corruption in campaign finance law, there will always be a temptation to use it more broadly to cover goals that are only partly related--to stretch its meaning, as I believe the Court has done in Austin. Austin's proclamation that the political system is corrupted when campaign contributions don't mirror public opinion cannot be maintained. "Corruption" will be drained of meaning if it becomes a mere synonym for "inequality." The concept of corruption has a worthy place in campaign finance law, and if the Court chooses to recognize other interests in campaign regulation it should not tarnish this one.