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73 Geo. Wash. L. Rev. 1036 (2004-2005)
Two Concepts of Corruption: Making Campaigns Safe for Democracy

handle is hein.journals/gwlr73 and id is 1048 raw text is: Two Concepts of Corruption: Making Campaigns Safe for Democracy Dennis F. Thompson* Introduction Why should campaigns be regulated? To prevent corruption or the ap- pearance of corruption is the answer the Supreme Court gives in McConnell v. FEC, its most recent decision on campaign finance reform.' Corruption prevention was also the rationale in Buckley v. Valeo, the original campaign finance decision decided twenty-eight years ago.2 It is also probably still the chief rationale favored by legislators, other public officials, and many reform- ers.3 The Court has resisted the blandishments of a long train of academic lawyers, political philosophers, and political scientists who have pressed the Court to adopt their own favorite rationale-usually some version of a prin- ciple of equality or liberty, or deliberative democracy.4 Although the Court majority in McConnell still speaks only of corrup- tion, it has begun to speak of it differently. We can recognize two distinct concepts in the recent opinions.5 First, there is the more familiar notion of * Alfred North Whitehead Professor of Political Philosophy, Harvard University. This Article is based on a paper prepared for the Symposium on Law and Democracy, sponsored by The George Washington Law Review at the Library of Congress, November 15, 2004. For com- ments on an earlier version of this Article, I am grateful to Heather Gerken, Amy Gutmann, Richard Hasen, Sunshine Hillygus, Michael Kang, Thomas Mann, and Jasjeet Sekhon. 1 McConnell v. FEC, 540 U.S. 93, 143 (2003). 2 Buckley v. Valeo, 424 U.S. 1, 26 (1976) (per curiam). 3 See Elizabeth Garrett, The William J. Brennan Lecture in Constitutional Law: The Fu- ture of Campaign Finance Reform Laws in the Courts and in Congress, 27 OKLA. CITY U. L. REV. 665, 667 (2002). 4 See, e.g., SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY 513-14 (rev. 2d ed. 2002). For an excellent example of an equality-based approach, see generally Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1 (1996). Philosophers also typically favor the equality approach. John Rawls appeals to a principle of fair value of the political liberties, which is intended to combine liberty and equality into one coherent notion, but as applied to campaign finance, turns out to be more of an equality standard. JOHN RAWLS, POLITICAL LIBERALISM 326-28, 359-63 (1993). For a thoughtful argument that the Court should balance four democratic val- ues, see generally Spencer Overton, Restraint and Responsibility: Judicial Review of Campaign Reform, 61 WASH. & LEE L. REV. 663 (2004). 5 The variety of corruption concepts that commentators have found in Court opinions on campaign finance would make a constitutional Darwin proud. I do not of course claim that governmental and electoral concepts are the only, or even the most compelling, interpretations of the Court's reasoning, but I would maintain that if we are interested in the survival of the fittest among approaches to corruption, we should give more attention to the distinction be- tween these concepts. A useful guide to the evolving concepts of corruption in court opinions since Buckley is Richard L. Hasen, Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U. PA. L. REV. 31, 39-43 (2004). He rightly emphasizes that the Court's greater deference to the legislative judg- ments in this area is not the slipping of existing standards, but the promotion of other values distinct from conventional corruption. Id. at 31. But, despite his subtitle, he exaggerates, I August 2005 Vol. 73 No. 5/6 1036

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