Applying Citizens United to Ordinary Corruption: With a Note on Blagojevich, McDonnell, and the Criminalization of Politics

George D. Brown*

The [Citizens United] opinion comprehensively redefined corruption, and in so doing, redefined the rules governing political life in the United States. —Zephyr Teachout¹

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anticorruption law: one concerning constitutional issues in the prevention of corruption through campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law primarily presents issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night.
The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Citizens United v. Federal Election Commission.² There the Court stated that “influence” and “access” brought about through campaign support, including contributions, are not corruption.³ The Court appeared to embrace a narrow view of what corruption is, tied closely to the concept of quid pro quo.⁴

This Article raises the question whether cases such as Citizens United and other campaign finance decisions should have generative force outside the electoral context. I contend that they should not—that preventing purchased political influence, whether generalized or particularized, is central to the federal anticorruption enterprise. The matter is presented both on a theoretical level and through examination of Supreme Court cases in what might be called the field of “ordinary corruption.” This examination yields an unclear picture. Some cases appear to be in harmony with the campaign finance decisions, raising the possibility that the Court does hold a unified view of corruption. However, the decision in Evans v. United States embraces a broad view of corruption in construing a key federal statute: the Hobbs Act.⁵ Evans has had extraordinary generative force in the lower federal courts. In particular, they have diluted any requirement of specificity in the concept of quid pro quo by emphasizing the presence of a “stream of benefits” as a means of securing somewhat generalized influence with public officials. The lower courts have thus developed a body of law that furthers broad anticorruption goals while ignoring intimations of a narrow view in the campaign finance cases. It is possible, however, that a form of convergence might take place. The possibility of convergence is enhanced by the renewed strength of the “criminalization of politics” critique: the view that the Citizens United concept of politics, or something like it, extends across the political spectrum. If the Supreme Court extended the narrow view expressed in the campaign finance cases to ordinary corruption, the result could, as it has in the past, be a major ruling reining in the lower courts. The two ships would, in effect, collide.

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© 2015 George D. Brown. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Robert F. Drinan, S.J., Professor of Law, Boston College Law School. A.B., Harvard University, 1961; L.L.B., Harvard Law School, 1965. The author would like to thank Research Assistants Cadesby Cooper, Sarah Gordon, Jeremy Henowitz, Yara Kass-Gergi, Nicholas Rausa, and Brian Reilly, as well as Mary Ann Neary of the Boston College Law School Library for their valuable help. Paul Marzagalli provided technical assistance. An early version of this paper was presented at a Boston College Law School faculty colloquium. Henry Monaghan was kind enough to read a preliminary draft.

1 Zephyr Teachout, Corruption in America 232 (2014).

2 558 U.S. 310 (2010).

3 Id. at 359.

4 See id. (discussing McConnell v. FEC, 540 U.S. 93 (2003), overruled in part by Citizens United, 558 U.S. at 365–66).

5 504 U.S. 255, 260–62 (1992).