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What started as a 90-minute political campaign documentary against then- presidential candidate Hilary Clinton ended in the Supreme Court with a decision that was described by some critics as one of the worst since Dred Scot. “Hillary: The Movie,” was produced by Citizens United, a conservative nonprofit, as part of its campaign against the former democratic presidential aspirant, and was released during the Democratic presidential primaries in 2008.
The judgment, which relaxes the restriction on power of the corporations to directly spend on advertising during federal elections, was described by Harvard law Professor Lawrence Lessig as “proverbial fuel on the fire”. He notes that the issue is not whether corporations are silenced or their First Amendment right to free speech upheld. More importantly, the outcome is an assault on democracy, capable of promoting a system that will further erode the public trust in their elected officers. Lessig cautioned that decision would undermine the participation of the citizens in the democratic process and that it gives unfair advantage to corporations, whose financial prowess will give them a stronger voice than the electorate.
Lessig heads Harvard’s Safra Center for Ethics, which studies the intersection between politics, interest groups and corruption in the U.S. politics. As part of the reading for a course convened by the program, I came across a very interesting article by an expert on political corruption, Zephyr Rain Teachout (found in the Cornell Law Review, Vol. 94, No. 341, 2009, for those who are interested), which I found very relevant to the Court’s decision in Citizens United.
Teachout writes that the Framers of the Constitution were obsessed with corruption and saw it as one of the greatest threats to democracy. They designed the system in such a way that corrupt leaders will not only loose their positions, but also their reputation. The Founding Fathers built mechanisms into the Constitution to safeguard democracy by ensuring transparency, accountability and citizens’ participation in the political process. The independence of the political office holders from other special interests was of paramount importance to the Framers.
Teachout writes that “corruption was discussed more often in the constitutional convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened. Madison recorded the specific term corruption fifty-four times, and the vast majority of the corruption discussions were spearheaded by influential delegates Madison, Moris, Mason, and Wilson. The attendees were concerned about the corrupting influence of wealth, greed, and ambition.” It is not an overstatement to say that the Framers actually saw the Constitution as an instrument to fight corruption.
The Framers defined political corruption to include “self-serving use of public power for private ends, including, without limitation, bribery, public decisions to serve private wealth made because of dependent relationships, public decisions to serve executive power made because of dependent relationships, and use by public officials of their positions of power to become wealthy”.
Their efforts to curb corruption in the political process is visible in issues including the regulation of elections, term limits, limits on holding multiple offices, limitations on accepting foreign gifts, the veto power, the impeachment clause, and provisions for the separation of powers, among other measures, with a view to ensure that leaders represent the interest of their constituency and not personal interests. In the words of Teachout, “taking seriously the architecture [of the Constitution] requires more than passing knowledge of what motivated the choice of architecture. Political corruption is context without which other specific words don't make sense; it is embodied in the text itself through other words that can’t be understood without understanding corruption”.
History has shown that when leaders put their self-interest above those who elected them, it undermines the trust of the people in the process and inevitably leads to collapse of the democratic system. The Roman and Greek empires are classic examples. The danger of democracies leaving political corruption unchecked is succinctly captured by Teachout: “voters will stop voting, people will stop running for office, and citizens will stop making serious efforts to read news and understand the public issues of their day, because they will believe that such efforts are futile,” she writes.
In McConnell v. FEC, 540 U.S. 93, which the Court overturned in Citizens United, the Court had made the following powerful comments:
“Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the office holder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means to prevention is to identify and remove the temptation.”
Ignoring the threat of corruption to democracy is, therefore, a serious problem that cannot be taken lightly. I agree with Teachout when she writes that “internal decay of our political life due to power-and-wealth seeking by representatives and elites is a major and constant threat to our democracy. History provides some powerful tools to allow us incorporate the anti-corruption principle into the constitutional law of democracy. We should pay attention to it”. The recent decision of the Supreme Court ignores this history, undermining the Constitution’s efforts to curb corruption at the highest level.
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