The Yale Law Journal


Roundup: Citizens United and Public Corruption

05 Dec 2014

Public corruption has occupied an interstitial space in American law, cutting across many different legal fields, including traditional criminal law, campaign finance regulation, special rules governing public officers, and First Amendment doctrine. When Citizens United was decided,1 its effects on campaign finance law were recognized immediately.2 But the decision also transformed the law on public corruption by shifting the relationship between some of the many different legal fields public corruption law straddles.3 In the years since, legal thinkers have joined in wide-ranging conversation about what “public corruption” means now and the continuing problem of its place in contemporary jurisprudence.

Zephyr Teachout’s work provides, in my view, the best starting point for grasping the stakes of this debate. In an important pre-Citizens United article, she systematically surveyed different understandings of public corruption, arguing that they fail to live up to the “anti-corruption principle” that the framers embedded in the Constitution.4 Her recently published Corruption in America extends her earlier work, and tracks the “dismember[ment]” of the Founders’ ideas on corruption across American history.5

In a recent book (and a series of working papers under his direction),6 Lawrence Lessig has tried to reclaim this founding ideal for the modern age. Building from the work of Dennis Thompson,7 Lessig’s predecessor as the director of the Edmond J. Safra Center for Ethics at Harvard, Lessig has tried to define a concept of “institutional“ or “dependence corruption“ that could serve as the foundation for a post-Citizens United public corruption jurisprudence.8

Some legal scholars think this approach is misguided. Deborah Hellman has argued that corruption is an inherently relative, political concept, which the courts should resist defining.9 Robert Post has gone further, suggesting that political corruption does not admit of a bright-line definition, and probably cannot support the jurisprudential edifices that scholars like Lessig wish to erect on it.10 Richard Hasen has similarly argued that the reconstructed concepts of “institutional” and “dependence” corruption have already been rejected by the Court.11 He worries that Robert Post’s alternative—”electoral integrity”—is no viable foundation either.12

In conclusion, Hasen laments that there is “nothing new under the sun” because Post and Lessig are offering variations on arguments that have been around for at least forty years.13 Still, the problem continues to attract interest, even outside academia. Just last year, Columbia Law School, in cooperation with the New York City Department of Investigation, launched the Center for the Advancement of Public Integrity, in part to coordinate research on public corruption and bridge anti-corruption theory and practice.14 With such new initiatives to look forward to, and given the depth and density of scholarly engagement on the question of public corruption, we can hope for a better understanding of public corruption’s meaning and boundaries in the future. Who knows—the new work may even prove Hasen wrong yet.

Preferred Citation: Noah A. Rosenblum, Roundup: Citizens United and Public Corruption, Yale L.J. (Dec. 5, 2014),