According to the Supreme Court, the First Amendment does not limit Congress’s power to pass laws narrowly tailored to attack “corruption” or the “appearance of corruption.” (Buckley v. Valeo). But by “corruption,” the Court increasingly speaks as if it means “quid pro quo” corruption only.
This modern understanding of the term “corruption” struck me as odd, at least for the originalists on the Court. Because it seemed to me clear that the Framers of the Constitution had a different conception of “corruption” than one limited to “quid pro quo” alone. For the Framers, “corruption” could predicate of an individual (“Aaron Burr is corrupt.”) as well as of an institution (“Parliament is corrupt.”). And when it predicates of an institution, that institution is not only corrupt because its members have engaged in “quid pro quo” corruption. Instead, according to the Framers, an institution could also be corrupt when it develops an “improper dependence.”
I wanted to test my sense of the Framers view of corruption. So I asked two research assistants, using the amazing online databases of Framing texts that now exist, to gather every use of the term “corruption” that they could. I then asked them to code those different usages, asking first whether the term “corruption” was being predicated of an institution, or an individual; second, whether the use was discussing “quid pro quo” corruption; and third, whether it described “improper dependence” as a kind of corruption.
The results are striking. A significant majority of the times the Framers use the term “corruption,” corruption is predicated of an entity, not an individual (57%). Every instance of “quid pro quo” corruption is describing individual corruption, not entity corruption. And for the significant number of cases in which the Framers are discussing “improper dependence” as a kind of corruption, they are describing entity corruption (67%) not individual corruption (33%).
These numbers make it hard to believe that the Framers of our Constitution would have used the term “corruption” to refer to “quid pro quo” corruption alone. Or put more sharply, these number suggest that only a non-originalist could support the idea that “corruption” refers to “quid pro quo” corruption alone.
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Thanks to my incredible research assistants, Dennis Courtney and Zach D’Amico, for their hard work on this project.