Corruption, Partisan Gerrymandering, Theories of Democracy, and the Supreme Court

Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich. L. Rev. 1385 (2013).

Every once in a while you read an article that makes you smack your head and say, “Duh—this is so obvious (and obviously right)—that I can’t understand why I didn’t see it before.” That’s the mark of a terrific article. It says something that is obvious after you’ve read it, but that wasn’t at all obvious (to you, at least) before. Deborah Hellman’s article on the Supreme Court’s treatment of “avoiding corruption” as a justification for campaign finance regulation is terrific in that way.

According to the Court, the First Amendment limits the kinds of corruption that can be targeted by campaign finance regulation. Only quid pro quo corruption—the more or less direct exchange of money given to a candidate for the candidate’s vote or other action on a matter of interest to the donor—counts for First Amendment purposes. Professor Hellman points out that “corruption” is what she calls a “derivative concept.” That is, you can’t say that some activity “corrupts” an institution’s proper operation without specifying beforehand what that proper operation should be. After developing that point with examples from universities (nepotism is bad in hiring faculty members because academic departments are supposed to make decisions based on academic criteria, but preferential admission to selective public schools for siblings of a student already enrolled there might be permissible because of their overall goals), she turns to politics.

Professor Hellman draws upon a standard account of two conceptions of the representative’s role: representatives as delegates who should vote in accordance with their constituents’ views and representatives as trustees who should vote on the basis of their own judgment about what would be good for the society. Of course, quid pro quo corruption is bad under either conception. But, Professor Hellman points out, if the trustee conception is the correct one (we’ll see in a moment what “correct” means), then representatives who votes according to their constituents’ views are corrupt.

What this means is that we can’t come up with a definition of corruption for First Amendment purposes without having “a theory of democracy,” to use Professor Hellman’s words. She then criticizes the Supreme Court’s decisions restricting legislative power to regulate campaign finance in part because they don’t articulate anything close to a theory of democracy, and indeed one can’t even do much to tease such a theory out of the decisions.

What makes the article so powerful, though, is Professor Hellman’s next observation: In cases involving partisan gerrymandering, most of those members of the Court who have voted to restrict legislative power over campaign finance have disclaimed their ability to impose restrictions on legislative power over districting—and have done so on the ground that doing so would require that they have (aha!) a theory of democracy. At which point Hellman asks, “What’s going on here? If they can’t come up with a theory of democracy to deal with partisan gerrymandering, how come they think they can come up with such a theory to deal with campaign finance regulations?” She explores and rejects some possible distinctions between the contexts, and the reader leaves the article with the sense that she’s caught a bunch of the Justices in a hypocritical contradiction.

Professor Hellman’s too polite to say more, but for me, the next line is pretty obvious: The theory of democracy that’s doing the work is “The Constitution’s on the side of Republicans – not just that Republican positions are consistent with the Constitution (and Democratic positions aren’t), but also that the Constitution sets things up so that the rules regulating elections favor Republicans.” No one will accuse me of calling the underlying idea a stunning and novel insight. What Professor Hellman does, though, is to tie that idea to a specific doctrinal anomaly or hypocrisy. Connections among doctrine, “deep” politics—competing theories of democracy—and partisan politics are what I for one look for in scholarship about constitutional law, and I found those connections laid out elegantly in Professor Hellman’s article.

Cite as: Mark Tushnet, Corruption, Partisan Gerrymandering, Theories of Democracy, and the Supreme Court, JOTWELL (January 16, 2014) (reviewing Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich. L. Rev. 1385 (2013)),