What an Originalist Would Understand "Corruption" to Mean

Abstract

As important as "that" is "how." It is commonplace to say of the United States Congress that it is "corrupt." But it is critical, if we are to reform that corrupt institution, to say how it is corrupt. In what sense? According to what meaning? For what reasons?

For the United States Congress is not corrupt in any traditional (albeit modern) sense of the term. Congress is not filled with criminals. Its members are not seeking bribes or using their official influence for private gain. In this sense, as Dennis Thompson offers, our Congress is likely the least corrupt Congress in the history of that institution.1 These are not bad souls bending the public weal to private ends. The institution is not corrupt because it is filled with a bunch of corrupt individuals. Instead Congress is corrupt at the level of the institution. We can presume the individuals within the institution are innocent; the economy of influence that they have allowed to evolve is not. Members of Congress, of course, are ultimately responsible for the influence they have allowed to evolve. But there is a distinction between being responsible and being corrupt: the bartender may well be responsible for the alcoholic's accident; that doesn't make her a drunk.

And that is the objective of this short Essay: to see how an institution can be corrupt even if its members are not. I base the argument on the Brennan Center's Jorde Symposium lecture that I had the honor of presenting at Berkeley Law in January of 2013. But lectures are not (or should not be) essays. So while this Essay draws from that lecture, it reaches beyond it. In particular, it is enriched by the generous and careful criticism of election law maven Rick Hasen. I take the opportunity in this Essay to also reply to him more carefully.

It is my claim that this "corruption"-what I call "dependence corruption"-should be easy for an originalist to see. Indeed, as this Essay will insist, only a non-originalist could reject it. That fact, if correct, makes the views of the originalists on the Supreme Court about the scope of the term "corruption" all the more puzzling, even as it also makes traditional reformers uncomfortable.