BROWN - Applying em Citizens United To Ordinary Corruption

Notre Dame Law Review
Volume 91 Issue 1 Article 4
12-2015
Applying Citizens United to Ordinary Corruption: With a Note on

Blagojevich, McDonnell, and the Criminalization of Politics
George D. Brown
Boston College Law School
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Recommended Citation
George D. Brown, Applying Citizens United to Ordinary Corruption: With a Note on Blagojevich, McDonnell,
and the Criminalization of Politics, 91 Notre Dame L. Rev. 177 (2015).
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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
ABSTRACT
Federal criminal law frequently deals with the problem of corruption in the form of pur-
chased 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 statu-
tory construction, but it may be desirable for courts approaching these issues to have an animat-
ing 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,
© 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).
177
178 notre dame law review [vol. 91:1
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 extraordi-
nary generative force in the lower federal courts. In particular, they have diluted any require-
ment 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.
INTRODUCTION
This Article considers two important questions in federal anticorruption
law. The first is whether the Supreme Court’s decision in Citizens United may
have generative force outside the area of campaign finance. The second
question is whether analysis developed in the electoral context should extend
to what I call “ordinary corruption”: abuse of public office for personal gain
derived from the infusion of outside resources into the governmental pro-
cess.6 The thesis of the Article is that the concept of corruption found in the
campaign finance cases should be limited to those cases. Extending the anal-
ysis of Citizens United to “ordinary corruption”—in particular, the extensive
federal prosecutorial efforts aimed at it outside the electoral context—would
rest on faulty premises, and would have serious negative consequences for
the federal anticorruption enterprise. The fact that the Supreme Court views
certain forms of questionable conduct as constitutionally shielded from treat-
ment in the electoral context does not mean that analogous forms of con-
duct outside that area cannot be treated as criminal. Indeed, differences in
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).
6 TEACHOUT, supra note 1, at 38 (“By corruption, the early generations meant exces-
sive private interests influencing the exercise of public power.”); see also, e.g., Cheol Liu &
John L. Mikesell, The Impact of Public Officials’ Corruption on the Size and Allocation of U.S. State
Spending, 74 PUB. ADMIN. REV. 346, 346 (May–June 2014) (using the definition of corrup-
tion as the “misuse of public office for private gain”).
2015] applying CITIZENS UNITED to ordinary corruption 179
context call for differences in analysis of what corruption is. Examination of

Supreme Court decisions on ordinary corruption shows that the Court has
sometimes appeared to hold a unified, narrow view. However, the decision
in Evans v. United States7 embraces a broad view of corruption in construing a
key federal statute: the Hobbs Act.8
Apart from theoretical issues and Supreme Court cases, the Article
addresses at length the development of a broad approach to anticorruption
statutes that has emerged in the lower courts. For these courts, Evans has
emerged as the Supreme Court’s major decision on ordinary corruption.
They have developed the theory of a “stream of benefits” to a public official
as satisfying quid pro quo requirements, even though the official’s future
conduct (the “quo”) is uncertain, perhaps even unknown, at the time of
agreement.9
Citizens United treated election-related “independent” expenditures by
corporations and unions as protected by the First Amendment.10 This highly
controversial decision was denounced by the President in his State of the
Union Address,11 and is the subject of a proposed constitutional amendment
to overturn it.12 Yet it stands as reflecting the views of a current majority of
the Court on campaign finance regulation. The same majority reaffirmed
those views in 2014 in McCutcheon v. FEC.13 At the core of these decisions is a
conception of what does and does not constitute corruption within the elec-
toral context. In Citizens United, Justice Kennedy declared that “[f]avoritism
and influence are not . . . avoidable in representative politics. It is in the
nature of an elected representative to favor certain policies, and, by necessary
corollary, to favor the voters and contributors who support those policies.”14
Thus, “[i]ngratiation and access . . . are not corruption.”15 For the majority,
Congress’s ability to criminalize conduct in the area of campaign finance is
limited to reaching quid pro quo corruption, narrowly defined, or its
appearance.16
7 504 U.S. 255 (1992).

8 18 U.S.C. § 1951 (2012).
9 See infra Part III.
10 Citizens United v. FEC, 558 U.S. 310, 339–42 (2010).
11 President Barack Obama, Remarks by the President in State of the Union Address (Jan. 27,
2010), http://www.whitehouse.gov/the-press-office/remarks-president-state-union-
address.
12 See Editorial, An Amendment to Cut Political Cash, N.Y. TIMES (Sept. 10, 2014), http://
www.nytimes.com/2014/09/11/opinion/an-amendment-to-cut-political-cash.html?_r=0.
For the text of the bill most recently rejected in the Senate, see S.J. Res. 19, 113th Cong.
(2013), https://beta.congress.gov/113/bills/sjres19/BILLS-113sjres19rs.pdf.
13 134 S. Ct. 1434 (2014).
14 Citizens United, 558 U.S. at 359 (quoting McConnell v. FEC, 540 U.S. 93, 297 (2003)
(Kennedy, J., concurring in the judgment in part and dissenting in part)).
15 Id. at 360.
16 Id. at 359 (citing McConnell, 540 U.S. at 296–98 (Kennedy, J., concurring in the
judgment in part and dissenting in part)). This view was recently repeated in McCutcheon.
See 134 S. Ct. at 1441 (plurality opinion) (“Any regulation must instead target what we have
called ‘quid pro quo’ corruption or its appearance.” (citing Citizens United, 558 U.S. at 359)).
Might, or should, the case have generative force outside the electoral
context? This is an important question. There exists outside of the electoral
context a substantial body of federal anticorruption law, based on a group of
interrelated statutes and decisions interpreting them.17 Prosecuting political
corruption is a significant part of the Department of Justice’s role. A recent
study in the Public Administration Review states that between 1976 and 2008,
“[m]ore than 25,000 public officials were convicted of corruption charges.”18
Those accused of ordinary corruption can include administrators,19 elected
executive officials,20 and even legislators when acting outside the protection
of political campaigns.21
These cases (and the statutes upon which they rest) are the cornerstone
of federal anticorruption law. Some aspects of this body of law seem to reach
conduct that Citizens United endorses: seeking, for example, access, ingratia-
tion, and influence.22 One can discern in the statutes an underlying theme
of biased decisionmaking as the essence of corruption.23 Yet the cases rarely
contain any discussion of what corruption is.24 Thus ordinary anticorruption
law seems bereft of an animating concept of the nature of corruption, while
the campaign finance cases consider the issue in depth, frequently featuring
extensive debates among Supreme Court Justices.25 It is almost as if the legal
system contained two distinct bodies of federal anticorruption law: one deal-
ing with the electoral system, and one dealing with what I refer to as ordinary
corruption.26 Not only do we see two different approaches, we also see an
17 See generally NORMAN ABRAMS ET AL., FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT
167–171, 280–90 (6th ed. 2015) (discussing federal crimes dealing with political
corruption).
18 Liu & Mikesell, supra note 6, at 349; see also U.S. DEP’T OF JUSTICE, REPORT TO CON-
GRESS ON THE ACTIVITIES AND OPERATIONS OF THE PUBLIC INTEGRITY SECTION FOR 2013 18–24
(2013) (providing statistics of federal, state, local, and private corruption prosecutions for
2013).
19 See, e.g., United States v. Agostino, 132 F.3d 1183, 1189–90 (7th Cir. 1997) (adminis-
trative toll-manager).
20 See, e.g., United States v. Ganim, 510 F.3d 134, 137 (2d Cir. 2007) (mayor).
21 See, e.g., United States v. Jefferson, 674 F.3d 332, 335 (4th Cir. 2012) (congressman).
22 A classic example is the prohibition of gratuities. See 18 U.S.C. § 201(c) (2012).
23 See Sarah N. Welling, Reviving the Federal Crime of Gratuities, 55 ARIZ. L. REV. 417, 419
(2013) (discussing dangers of gifts to public officials and stating that “when a donor trans-
fers value to a donee, the injury to society is sufficient in terms of biased officials to warrant
treating the conduct as criminal”); see also Daniel H. Lowenstein, Political Bribery and the
Intermediate Theory of Politics, 32 UCLA L. REV. 784, 788 (1985) (characterizing inquiry into
bribery as “one aspect of the question of what pressures brought to bear on officeholders
are regarded as improper”). Personal gain, an equally key element of the nature of cor-
ruption generally, results from the transfer.
24 There are exceptions. See, e.g., Ganim, 510 F.3d at 147 (discussing Hobbs Act jury
instructions).
25 Compare Citizens United v. FEC, 558 U.S. 310, 357–61 (2010) (treating favoritism
and influence as part of democratic politics), with id. at 446–60 (Stevens, J., concurring in
part and dissenting in part) (discussing negative aspects of influence and access).
26 See infra subsection II.B.3.c (discussing academic suggestions of a possible unified
approach).
extensive consideration of the nature of corruption alongside an apparent

lack of concern with what is wrong with the conduct that has been criminal-
ized. The two bodies of law exist in near-total ignorance of each other, like
two ships passing in the night. Both deal with “corruption,” but neither looks
to the other for guidance as to the meaning of that elusive term.
A quick response to any analytical problems with this difference is that
the two bodies of law present questions that are quite different. Ordinary
corruption cases are simply matters of statutory interpretation. The cam-
paign finance cases, on the other hand, require an in-depth examination of
the nature of corruption because preventing it (or its appearance) is a gov-
ernment interest that justifies restrictions on activities otherwise protected by
the First Amendment. This has been the law since the fundamental case of
Buckley v. Valeo.27 Yet the response seems too facile. An inquiry into a partic-
ular problem of corruption can often be helped by looking at the body of law
that regulates the subject in general. For example, the Court in Buckley did
look briefly at general anticorruption law, but only to dismiss it as insufficient
to deal with the dangers of corruption in the electoral context.28
As for statutory interpretation, it is often more than a mechanical exer-
cise. Legislative purpose, the legislative framework, and background under-
standings play a role as well.29 A statute forbidding “ ‘extortion’ . . . under
color of official right”30 is obviously an attempt by Congress to deal with cor-
ruption. Since the statute is open to a range of interpretations,31 why not
look at what the Supreme Court has said corruption is?
Citizens United—as reaffirmed in McCutcheon—represents the Court’s
most recent in-depth treatment of corruption and might suggest a narrow
approach to such questions.32 At the same time, the lower courts, in ordi-
nary corruption cases, are grappling with how far to extend the concepts of
bribery and extortion. I will argue that the case and its approach should play
no role in the equally important area of ordinary corruption. Indeed, I will
contend that as long as Citizens United represents the Court’s view of corrup-
tion, the two bodies of anticorruption law should remain essentially bifur-
cated. One must recognize, however, that it is possible to find in academic
27 424 U.S. 1 (1976) (per curiam).

28 Id. at 27–28 (rejecting appellant’s argument that “contribution limitations must be
invalidated because bribery laws and narrowly drawn disclosure requirements constitute a
less restrictive means of dealing with ‘proven and suspected quid pro quo arrangements’”).
29 See Lisa Kern Griffin, The Federal Common Law Crime of Corruption, 89 N.C. L. REV.
1815, 1826–29 (2011) (discussing the possibility of congressional delegation of criminal
lawmaking power and stating that “courts necessarily add meaning to criminal statutes”).
Professor Griffin draws in part on the work of Professor Dan Kahan. E.g., id. at 1827
nn.56–58 (citing Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L.
REV. 469, 471 (1996); Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT.
REV. 345, 347).
30 18 U.S.C. § 1951(b)(2) (2012).
31 See Evans v. United States, 504 U.S. 255, 278 (1992) (Thomas, J., dissenting).
32 See McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014) (plurality opinion); Citizens
United v. FEC, 558 U.S. 310, 360 (2010).
writing suggestions of convergence.33 Indeed, arguments of convergence

have surfaced in anticorruption litigation.34
Part I of the Article examines the general issue of bifurcation and
attempts to establish a theoretical baseline that justifies it. Part II analyzes
the current state of Supreme Court precedents on federal anticorruption law
in both the electoral and ordinary contexts. It also considers analyses of pos-
sible convergence. Examination of the cases yields a mixed picture. In the
electoral context, the current majority firmly endorses a narrow concept of
corruption.35 Earlier cases which took a broader view are disfavored and
overruled.36 As for ordinary corruption, the body of law is smaller, and the
pattern less clear. One can find both broad and narrow approaches. Recent
cases may tilt in the latter direction. However, the precedent with the most
generative force is the 1992 decision in Evans v. United States. It takes a broad
approach.
Part III focuses on a current area of considerable activity within the
lower federal courts: the development of a concept of a “stream of benefits”
to public officials as a means of satisfying quid pro quo requirements of brib-
ery and extortion offenses. This analysis reveals a striking willingness to
embrace a broad view of ordinary corruption in the form of purchased influ-
ence on public officials. This approach seems in tension with both the
approach articulated in the electoral cases such as Citizens United and some of
the Court’s ordinary corruption decisions. One might view the stream-of-
benefits cases as bifurcation in action. If the Court sees a need for a unified
approach, the question is whether it would step in to halt or limit this devel-
opment. In this context, the Article considers the “criminalization-of-polit-
ics” critique and its apparently tolerant view of transfers of value to public
officials. The Article expresses reservations of this critique in general. In the
specific context of the stream of benefits, it concludes that any such step by
the Court would be theoretically unsound and would seriously hinder the
fight against corruption.
I. THE VALIDITY OF HAVING TWO SEPARATE BODIES OF FEDERAL

ANTICORRUPTION LAW
A. The Case for a Bifurcated Approach
1. The Problem in General

To state the obvious, the ordinary corruption cases deal with conduct
generally viewed as corrupt. They are criminal prosecutions for the violation
of statutes that forbid such activities as bribery of public officials (and their
33 See generally infra subsection II.B.3.c.

34 See generally infra text accompanying notes 402–07.
35 E.g., McCutcheon, 134 S. Ct. at 1450–53 (plurality opinion).
36 See Citizens United, 558 U.S. at 365–66 (overruling Austin v. Michigan State Chamber of
Commerce, 494 U.S. 652 (1990), and partially overruling McConnell v. FEC, 540 U.S. 93
(2003)).
solicitation of bribes),37 extortion by public officials “under color of official

right,”38 and giving gratuities to public officials in certain circumstances (and
their acceptance of the gratuities).39 A common element of all these
offenses is a transfer (or a potential transfer) of something of value from an
outside source directly to a public official to influence governmental action.
Virtually no one would have a problem in describing this constellation of
issues, at least the first two, as “corruption.”
Viewing campaign finance regulations—primarily restrictions on contri-
butions, limitations on expenditures, and disclosure requirements—as an
anticorruption endeavor is perhaps not so obvious. Such measures deal not
only with political speech, but also with the amount of information available
to voters, and problems such as leveling the playing field in a system that
depends primarily on private funding of campaigns. Corruption of the elec-
toral system might be best addressed only by bribery statutes40 and statutes
preventing voter fraud or vote buying.
Yet broader anticorruption analysis plays a dominant role in the Court’s
extensive campaign finance jurisprudence. The reason for this phenomenon
is the presence of political speech. The extensive body of campaign finance
jurisprudence begins with Buckley v. Valeo, in which the Court held that the
governmental interest in limiting “the actuality and appearance of corrup-
tion” could justify contribution limits despite the First Amendment protec-
tion accorded to forms of political speech and association.41 In an apparent
endorsement of a prophylactic approach to the problem of “improper influ-
ence,” the Court rejected the notion that bribery laws and disclosure require-
ments could adequately reach “quid pro quo arrangements.”42 At the same
time, the Court refused to extend this rationale to independent expendi-
tures.43 Thus at the outset of its soon-to-be-extensive involvement in review-
ing campaign finance legislation, the Court treated the issue as one that
heavily involves anticorruption considerations. In particular, its analysis con-
sidered at length the problem of “improper” or “coercive” influence.44 Why,
then, aren’t the campaign finance cases sufficiently related to ordinary cor-
ruption that it makes sense to view the two bodies of law as one—two sides of
the same coin, so to speak?45
37 18 U.S.C. § 201(b) (2012).

38 Id. § 1951(b)(2).
39 Id. § 201(c).
40 See Buckley v. Valeo, 424 U.S. 1, 27–28 (1976) (per curiam).
41 Id. at 25–29.
42 Id. at 27–28.
43 Id. at 58.
44 E.g., id. at 27 (referring to “improper” influence).
45 In Buckley, Chief Justice Burger referred to contributions and expenditures as “two
sides of the same First Amendment coin.” Id. at 241 (Burger, C.J., concurring in part and
dissenting in part).
2. Contextual Differences
The answer should begin by focusing on the substantially different con-

texts in which campaign finance cases and ordinary corruption prosecutions
arise. By definition the former arise in the electoral context. In our pluralis-
tic democracy, elections are often highly competitive contests among advo-
cates of differing views of the public interest. They produce winners and
losers. Those who win will almost inevitably advance the policies and persons
that got them there. In other words, they will not be neutral. It would hardly
be viewed as corruption if an elected Republican favored business interests
while an elected Democrat favored labor.
Moreover, money is always present, except in the rare cases of public
financing systems. It takes the form not of direct transfers to the candidate,
but of, for example, contributions to campaigns, contributions to parties, and
independent expenditures. Since money is at the heart of campaigns, decid-
ing when a particular infusion of money into the process is undesirable—by
leading to “improper” influence, for example—is exceedingly difficult. The
task is made infinitely more difficult by the fact that the Supreme Court has
endowed election-related expenditures with First Amendment protection.46
Outside the electoral context, the analysis is sharply different. At issue
are transfers, direct or indirect, to the officials themselves.47 There is a
strong argument that all such transfers should be barred, at least if poten-
tially related to public business.48 The point is strongest in the case of those
who administer the law. Unlike elections, we expect neutrality of administra-
tion. In upholding the Hatch Act—which limits political activities by federal
employees—the Supreme Court referred to the “great end of government—
the impartial execution of the laws.”49 In the administrative context, basic
anticorruption laws are supplemented by ethics provisions such as those reg-
ulating “revolving door” problems50 and self-dealing by public officials. As
the American Bar Association Commission on Government Standards put it
in a report surveying the regulation of government ethics,
46 Citizens United v. FEC, 558 U.S. 310, 362 (2010); Buckley, 424 U.S. at 58.
47 Campaign contributions are, in theory, not given directly to the candidate.
48 See George D. Brown, Putting Watergate Behind Us—Salinas, Sun-Diamond, and Two
Views of the Anticorruption Model, 74 TUL. L. REV. 747, 769 (2000) (quoting Roswell B. Per-
kins, The New Federal Conflict-of-Interest Law, 76 HARV. L. REV. 1113, 1119 (1963)).
49 Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565 (1973); see
Griffin, supra note 29, at 1817 (noting difficulty of defining corruption, but emphasizing
“the harm that it causes to the political process—leverage over public officials that pre-
cludes neutral decisionmaking”); Welling, supra note 23, at 423–24 (discussing rationales
behind gratuities offenses including “the risk of preferential treatment for donors and
undermin[ing] equality of access to government services” (citing George D. Brown, The
Gratuities Offense and the RICO Approach to Independent Counsel Jurisdiction, 86 GEO. L.J. 2045,
2054 (1998); Beth Nolan, Public Interest, Private Income: Conflicts and Control Limits on the
Outside Income of Government Officials, 87 NW. U. L. REV. 57, 79 n.81, 80 & n.89 (1992)).
50 E.g., 18 U.S.C. § 207(a) (2012).
We the People entrust public power to elected and appointed officials for
the purpose of furthering the public interest. To accept that power is to
undertake a commitment that it will be used only for this purpose, and not
to advance the narrow interest of self or of any other person or group.51
Thus the two contexts present sharply different points of departure: par-
tiality and a key role for money in most elections,52 as contrasted with aspira-
tions of neutrality and a deep suspicion of transfers of things of value in the
administration of laws. These aspirations and suspicions are not, however,
limited to purely administrative officials. Elected officials such as mayors and
governors largely lose their electoral shield when they enter into the domain
of governing. Concepts such as abuse or sale of office prevent, for example,
a mayor from taking bribes to favor contributors with city contacts.53 Ordi-
nary corruption law seeks to prevent biased decisionmaking.54 Indeed, legis-
lators are not immune from these general precepts of fairness. They may
well be expected to side with those who helped get them there. But once in
office, they cannot, for example, sell votes or other official acts.55 As with
elected executives, the law’s condemnation of sale or abuse of office trumps
the electoral shield.
At the heart of Citizens United is a discussion of corruption.56 McCutcheon
elaborates on this analysis57 and represents the Court’s most recent discus-
sion of the concept. The Court seems to be defining all corruption as limited
to quid pro quo arrangements.58 The current majority makes this clear by
treating corruption as not extending to campaign expenditures that yield
influence and access.59 The Court has stated that Congress may target only a
specific type of corruption—quid pro quo corruption.60 Taken literally, this
statement would cast doubt on the validity of some anticorruption statutes—
those forbidding gratuities, for example—and call for extremely narrow con-
struction of others.
The Court’s language appears to cover corruption in general, without
limiting the analysis to the electoral context. Opinions refer to “concep-
tion[s] of corruption,” and “views of corruption.”61 Yet the legal system faces
51 ABA Comm. on Gov’t Standards, Keeping Faith: Government Ethics & Government Eth-
ics Regulation, 45 ADMIN. L. REV. 287, 292 (1993).
52 This analysis ignores the possibility of publicly financed elections.
53 See United States v. Ganim, 510 F.3d 134, 136–40 (2d Cir. 2007).
54 See Welling, supra note 23, at 423 (citing Brown, supra note 49, at 2054; Nolan, supra
note 49, at 79 n.81, 80 & n.89).
55 See United States v. Brewster, 408 U.S. 501, 527–29 (1972).
56 See Citizens United v. FEC, 558 U.S. 310, 356 (2010).
57 See McCutcheon v. FEC, 134 S. Ct. 1434, 1450–53 (2014) (plurality opinion).
58 Id. at 1462.
59 Citizens United, 558 U.S. at 357.
60 McCutcheon, 134 S. Ct. at 1441 (holding that Congress may only regulate quid pro
quo corruption or its appearance).
61 See, e.g., Citizens United, 558 U.S. at 391 (Scalia, J., concurring) (referencing the
Court’s “conception of corruption”); id. at 447 (Stevens, J., concurring in part and dissent-
ing in part) (referring to Justice Kennedy’s “crabbed view of corruption”).
a serious dilemma if much of the federal anticorruption enterprise is

directed at conduct the Supreme Court does not regard as corrupt.
The way out of this dilemma is to recognize the unique role that the First
Amendment plays in campaign finance jurisprudence. The Court should be
understood as saying not that the Amendment protects influence and access,
but that it protects the campaign-related activities, for example, independent
expenditures that yield influence and access. The cases are replete with ref-
erences to the Amendment and its jurisprudence,62 and to the special pro-
tections accorded to political speech.63 Down-the-road consequences such as
influence and access are inevitable, and may even be desirable as compo-
nents of candidate responsiveness.64 If the First Amendment shield is
removed, however, at some point such relationships come closer to looking
like ordinary corruption.65 Corruption is difficult to define,66 but outside
the electoral context, it almost certainly includes efforts to use resources
accumulated in the private sector to influence public-sector mechanisms for
allocating public goods and services, and the resulting private gain to public
officials.67
B. Rejecting Bifurcation in Favor of Convergence
1. General Considerations
Even granting the special role of the First Amendment in elections, the
two contexts are not always easy to separate. Thus, one must acknowledge a
strong conceptual pull against bifurcation and in favor of a unified approach.
The campaign finance statutes are clearly aimed at corruption.68 The cam-
paign finance cases contain the Court’s fullest, perhaps its only, discussion of
62 See, e.g., McCutcheon, 134 S. Ct. at 1441 (“Indeed, as we have emphasized, the First
Amendment ‘has its fullest and most urgent application precisely to the conduct of cam-
paigns for political office.’” (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272
(1971))); Citizens United, 558 U.S. at 339 (describing speech as an “essential mechanism of
democracy”).
63 See, e.g., McCutcheon, 134 S. Ct. at 1444, 1446, 1449 (discussing statutory, regulatory,
and case law developments); Citizens United, 558 U.S. at 329, 340–42 (addressing protec-
tions afforded political speech and application to corporations).
64 See McCutcheon, 134 S. Ct. at 1462 (“Constituents have the right to support candi-
dates who share their views and concerns. Representatives are not to follow constituent
orders, but can be expected to be cognizant of and responsive to those concerns. Such
responsiveness is key to the very concept of self-governance through elected officials.”).
65 Cf. Brief of Amici Curiae Business Leaders and Public Policy Advocates in Support of
Appellant Robert F. McDonnell and Reversal at 24, United States v. McDonnell, 792 F.3d
478 (4th Cir. 2015) (No. 15-4019) (citing risk of “an impermissible chilling effect on indi-
vidual and collective interaction with government officials”).
66 See TEACHOUT, supra note 1, at 294–95.
67 The classic example is bribery statutes. See generally SUSAN ROSE-ACKERMAN, CORRUP-
TION: A STUDY IN POLITICAL ECONOMY 1–3 (1978).
68 See, e.g., Buckley v. Valeo, 424 U.S. 1, 26–27 (1976) (per curiam) (discussing anticor-
ruption: goals of campaign finance statutes).
what corruption is.69 These discussions might well be pertinent to ordinary

corruption cases grappling with the same general problem. Both present, for
example, the problem of the infusion of outside resources into the govern-
mental sector. The campaign finance cases do not stand for “anything goes.”
The current majority is aware of the problem of “improper influence.”70 It
faces the quandary of identifying it in a context where some monetary-based
influence is proper and inevitable.
2. The Anticorruption Imperative
It may be helpful to step back and view the questions facing the courts at
a higher level of generality. Both sides of the coin can be seen as efforts to
apply what Professor Peter Henning refers to as “the Anti-Corruption Legacy
of the Constitution.”71 He contends that “[t]he Constitution reflects a signif-
icant concern with preventing corruption in all levels of the government.
There is a powerful Anti-Corruption Legacy in the Constitution that prevents
misuse of federal office for personal gain and, importantly, furnishes protec-
tions to limit the effects of corruption occurring in the states.”72 More
recently, Professor Zephyr Teachout has written that “[t]he Constitution car-
ries within it an anti-corruption principle, much like the separation-of-powers
principle, or federalism.”73 Professor Henning focuses on ordinary corrup-
tion, while Professor Teachout primarily addresses the electoral context.
However, if there is a constitutional or sub-constitutional value bearing
directly on the matter, it ought to play a role in both contexts.
3. Other Constitutional Values in Play—The Unifying Concept of

Equality
At first blush, ordinary corruption presents constitutional issues that are

either not present or play only a peripheral role in the electoral context.
The bulk of the federal anticorruption enterprise is aimed at state and local
69 One would expect at least some discussion in the ordinary-corruption cases present-
ing difficult questions of statutory interpretation.
70 Citizens United v. FEC, 558 U.S. 310, 361 (2010) (recognizing problem of
“improper influences”).
71 Peter J. Henning, Federalism and the Federal Prosecution of State and Local Corruption, 92
KY. L.J. 75, 83–86 (2003).
72 Id. at 83.
73 Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 341, 342 (2009).
As Teachout’s book, Corruption in America, did not appear until 2014, I cite her article here
because it was available to the Supreme Court when it made its recent campaign finance
decisions. See Citizens United, 558 U.S. at 391 (Scalia, J., concurring) (addressing an argu-
ment regarding the framers’ understanding of corruption); id. at 452 (Stevens, J., concur-
ring in part and dissenting in part) (same). Professor Teachout’s book is discussed in this
Article. See infra notes 321–40 and accompanying text. See also LAWRENCE LESSIG, REPUB-
LIC, LOST 128–30 (2011) (expressing agreement with Teachout).
officials.74 These prosecutions present obvious issues of federalism, which

are worth noting briefly to demonstrate how different the issues that arise in
ordinary corruption cases are from those that arise in the electoral context.
Some critics have taken the view that this form of federal oversight impinges
on the states’ ability to govern themselves.75 Part of any general government
body’s role is policing itself. Constantly relying on the federal sheriff to ride
in and save the day weakens the states’ ability to perform that task.76 Indeed,
this form of intervention is in serious tension with cases such as United States
v. Lopez,77 which emphasized the importance of the federal balance,78 and
the anti-commandeering principle developed in New York v. United States79
and Printz v. United States.80 Promulgating standards that control state and
local governments seems close to treating them as part of the federal appara-
tus.81 There are, however, substantial arguments in favor of the federal pres-
ence. Professor Adam Kurland has analyzed the Guarantee Clause as
justifying federal anticorruption prosecutions that preserve republican gov-
ernment within the states.82 He treats the anticorruption principle as ani-
mating government at all levels and justifying a strong federal presence to
vindicate it.83
In addition to federalism, one might cite due process-based vagueness
concerns as a constitutional value present in ordinary corruption—with its
emphasis on statutory construction84—as evidence that the electoral and
74 See ABRAMS ET AL., supra note 17, at 289–90, 303–05 (generally discussing federal
prosecution of corruption of state and local officials).
75 See, e.g., Geraldine Szott Moohr, Mail Fraud and the Intangible Rights Doctrine: Someone
to Watch over Us, 31 HARV. J. ON LEGIS. 153, 155–56 (1994) (arguing that federal mail fraud
prosecutions raise federalism concerns); see generally George D. Brown, Should Federalism
Shield Corruption?—Mail Fraud, State Law and Post-Lopez Analysis, 82 CORNELL L. REV. 225,
239–44 (1997) (discussing competing state and federal interests).
76 See Brown, supra note 75 at 274–75 (applying a balancing test to federal anticorrup-
tion statutes).
77 514 U.S. 549 (1995).
78 Id. at 578, 580 (Kennedy, J., concurring).
79 505 U.S. 144 (1992).
80 521 U.S. 898, 925, 929–30 (1997).
81 See Brown, supra note 75, at 274–75 (discussing downsides to federal prosecution).
82 Adam H. Kurland, The Guarantee Clause as a Basis for Federal Prosecutions of State and
Local Officials, 62 S. CAL. L. REV. 367, 375, 426–27 (1989).
83 Id. at 375.
84 Evans is a classic example of widely different possible constructions of an ordinary
corruption statute. See Evans v. United States, 504 U.S. 255, 278–290 (1992) (Thomas, J.,
dissenting) (exploring the definition of extortion). Vagueness issues were central to the
discussion of the honest services doctrine in Skilling v. United States, 561 U.S. 358, 368,
402–06 (2010) (holding that 18 U.S.C. § 1346 is not unconstitutionally vague). For further
discussion on the inevitable uncertainly of defining corruption, see David Mills & Robert
Weisberg, Corrupting the Harm Requirement in White Collar Crime, 60 STAN. L. REV. 1371, 1377
(2008).
ordinary corruption contexts present different constitutional frameworks.85

However, there is one overriding constitutional value present, or potentially
present, in both contexts that argues for treating them similarly: equality.
The role of equality in campaign finance reform has been hotly debated ever
since Buckley v. Valeo.86 The Court rejected out of hand the “interest in
equalizing the financial resources of candidates competing for federal
office.”87 This interest was an example of the more general issue of “equaliz-
ing the relative ability of individuals and groups to influence the outcome of
elections.”88 In what is perhaps the opinion’s most famous passage, the
Court declared that
the concept that government may restrict the speech of some elements of
our society in order to enhance the relative voice of others is wholly foreign
to the First Amendment, which was designed “to secure ‘the widest possible
dissemination of information from diverse and antagonistic sources,’ ” and
“ ‘to assure unfettered interchange of ideas for the bringing about of politi-
cal and social changes desired by the people.’ ”89
Yet the notion of equality of influence in political campaigns will not go
away, especially in a system anchored on the principle of one person, one
vote.90 Justice Marshall dissented in Buckley, arguing for upholding legisla-
tion that furthered “the interest in promoting the reality and appearance of
equal access to the political arena.”91 He prevailed in Austin v. Michigan State
Chamber of Commerce, in which a majority upheld a state ban on corporate
political expenditures.92 Professor Issacharoff views Austin as “the only case
to adopt squarely the distortion of electoral outcomes view of corruption.”93
He describes the Justices as divided between those who emphasize the liberty
protections of the First Amendment and those who emphasize “equality pro-
tections of democracy.”94 The former will only permit restrictions on electo-
ral speech aimed at real or apparent quid pro quo arrangements that
“undermine electoral accountability.”95 In McConnell v. FEC,96 the propo-
85 Vagueness issues have at times surfaced in campaign finance cases. See, e.g., Buckley
v. Valeo, 424 U.S. 1, 44–45 (1976) (per curiam) (preserving contribution and expenditure
limitations against invalidation on vagueness grounds).
86 Buckley was a per curiam decision with several separate opinions. E.g., id. at 286
(Marshall, J., concurring in part and dissenting in part); id. at 290 (Rehnquist, J., concur-
ring in part and dissenting in part).
87 Id. at 56.
88 Id. at 48–49.
89 Id. at 48–49 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 266, 269 (1964)).
90 This principle is central to the reapportionment decisions that are the progeny of
Baker v. Carr. See generally 369 U.S. 186 (1962) (deeming legislative redistricting a justicia-
ble issue).
91 Buckley, 424 U.S. at 287 (Marshall, J., concurring in part and dissenting in part).
92 494 U.S. 652, 660 (1990), overruled by Citizens United v. FEC, 558 U.S. 310, 365
(2010).
93 Samuel Issacharoff, On Political Corruption, 124 HARV. L. REV. 118, 122 (2010).
94 Id. at 122–23.
95 Id. at 123.
nents of equality drew on Austin to uphold federal restrictions on corporate

and labor electioneering.97 However, they mixed equality concerns with a
more direct emphasis on corruption in upholding a ban on “soft money”
contributions to political parties.98 Here, the evil was presented as “undue
influence,”99 and the peddling of “access”100 to those who could afford to
purchase it. This attempt to blend equality with classic anticorruption con-
cerns was rejected in Citizens United,101 as discussed below.102 The equality
proponents are in the minority, at least for now.103 However, for present
purposes, the important point is that equality concerns still play a role in the
Court’s ongoing efforts to grapple with identifying corruption (“improper
influence”)104 in the electoral context.
What is less recognized is that equality values are an important under-
pinning of ordinary corruption laws as well. The problem is frequently
presented as preventing private gain from public office105 or as curbing
outside influence on government.106 However, as noted, the Supreme
Court, in upholding anticorruption legislation, has invoked “this great end of
Government—the impartial execution of the laws.”107 The right to equal
access to governmental services can be seen as a corollary of the right to
participate equally in the governmental process. Corrupt governments do
not serve citizens on an equal basis. Access to the relevant officials is skewed
in favor of those with the resources to obtain it.108
96 540 U.S. 93 (2003), overruled in part by Citizens United, 558 U.S. at 365–66.
97 Id. at 205, 208, 211.
98 Id. at 187–88.
99 Id. at 153, 156 (emphasis added).
100 Id. at 150.
101 See Citizens United, 558 U.S. at 360–61 (striking down limits on independent
expenditures).
102 See infra text accompanying notes 169–75, 179–83.
103 See Citizens United, 558 U.S. at 393, 424–25, 447–50 (Stevens, J., dissenting in part
and concurring in part).
104 Buckley v. Valeo, 424 U.S. 1, 27 (1976) (per curiam).
105 See Liu & Mikesell, supra note 6, at 346 (utilizing definition of corruption as “misuse
of public office for private gain”).
106 See Welling, supra note 23, at 423 (discussing rationales for the crime of gratuities).
107 United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 493 (1995) (Rehnquist,
C.J., dissenting) (quoting Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548,
565 (1973)).
108 There are other similarities between the two contexts, although not of a constitu-
tional dimension. Preventing corruption is closely related to concerns of government eth-
ics, manifested, for example, in conflict-of-interest laws. Ensuring public confidence in
government is a goal of these laws just as it is a goal of campaign finance regulation. See
Buckley, 424 U.S. at 27 (emphasizing the importance of avoiding “the appearance of
improper influence”); Brown, supra note 75, at 242 (“[D]emocracy is effective only if the
people have faith in those who govern . . . .” (quoting United States v. Miss. Valley Generat-
ing Co., 364 U.S. 520, 562 (1961))).
There is a close relationship between this view of corruption and basic

principles of equal protection of the laws.109 Indeed, in the famous case of
Hawkins v. Town of Shaw,110 the Fifth Circuit held that unequal provision of
municipal services based on the racial composition of neighborhoods is a
violation of the Equal Protection Clause.111 The civil rights analogy is useful
because it helps explain and justify the federal role in preventing corrup-
tion.112 Those protected may not always be “discrete and insular minori-
ties,”113 but they are citizens who suffer from unequal ability to influence the
operation of government.
It is not clear how far one should push the civil rights analogy. Princi-
ples of federalism foreclose the notion that the national government has a
constitutional justification for intervening whenever state or local govern-
ment is somehow unfair. Although there are echoes of the Equal Protection
Clause in the federal government’s anticorruption efforts, the relationship
does not seem close enough that Section 5 of the Fourteenth Amendment114
could provide a basis for the laws underlying that enterprise. Overall, one
should recognize that broad goals of “good” government are definitely pre-
sent in both the electoral and ordinary corruption contexts.115 This aspira-
tional dimension extends beyond particular misdeeds and their
consequences to include considerations of equality.
Thus, there are conceptual links between the fields of campaign finance
regulation and prosecution of ordinary corruption. However, I do not think
the arguments for a unified approach are strong enough to prevail. The
differences between the two contexts call for different modes of analysis of
what constitutes corruption. In particular, elections are not neutral—one
group prevails over another—and private financing, by definition, means the
infusion of outside resources. These differences call for not giving significant
weight to what the Supreme Court has said about corruption in the electoral
109 See Brown, supra note 75, at 235.

110 437 F.2d 1286, 1287 (5th Cir. 1971).
111 Id. at 1290, 1292; see also id. at 1295 (“This approach is in the highest tradition of
Federalism whereunder local governments are to carry out their function and responsibili-
ties in a system where every level of government, federal, state and local, is subject to the
federal Constitution.”).
112 See, e.g., Brown, supra note 75, at 233 (discussing possible criteria for federal crimi-
nal jurisdiction).
113 United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Equality has its
limits as a restraint on preferential treatment of different constituencies. See O’Hare
Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 720 (1996) (noting possibility of “a
constituency that must take its chance of being favored or ignored in the larger political
process”).
114 U.S. CONST. amend. XIV, § 5 (“The Congress shall have power to enforce, by appro-
priate legislation, the provisions of this article.”).
115 See, e.g., United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965), quoted in Welling,
supra note 23, at 423 n.37 (referring to “iniquity of the procuring of public officials” as
“fatally destructive to good government”).
context when issues of how far to take the concept arise in ordinary corrup-
tion cases.
With these theoretical considerations as a baseline, Part II briefly exam-
ines some key Supreme Court decisions in the two contexts. It also examines
the thesis advanced by some scholars that the Court has, sub silentio, blended
the two analyses. According to this thesis, there are major ordinary corrup-
tion decisions that reflect the views of the current majority on campaign
finance. Analysis of the cases suggests some support for this thesis but also
casts doubt on its general validity. As Part III of the Article will show, the
lower courts are moving firmly in the other direction. Increasingly, one finds
on the front lines of anticorruption prosecutions a view of corruption that is
both sharply different from and broader than that expressed in Citizens
United.
II. THE COURT’S JURISPRUDENCE IN THE TWO CONTEXTS AND THE THESIS
THAT THEY REST ON SIMILAR PREMISES
A. The Campaign Finance Cases and Their Competing Views of Corruption
The Court’s campaign finance cases have been addressed extensively in

the academic literature.116 I will not repeat that discussion here, but will
focus on the two competing views of corruption that dominate the cases.117
At the core is the undisputed notion that campaign finance regulation can
aim at quid pro quo corruption or its appearance. The source of this notion
is Buckley’s upholding of a one-thousand-dollar limit on federal campaign
contributions.118 The Court reasoned that large contributions might be
“given to secure a political quid pro quo from current and potential office
holders.”119 The Court admitted that direct evidence of such arrangements
might be hard to find.120 However, it reasoned that banning large contribu-
tions would obviate the danger, and, equally importantly, would address the
“appearance of corruption stemming from public awareness of the opportu-
nities for abuse inherent in a regime of large individual financial contribu-
tions.”121 Though Buckley is sometimes presented as narrowly focused on
116 See generally Lucian A. Bebchuk & Robert J. Jackson, Jr., Corporate Political Speech: Who
Decides?, 124 HARV. L. REV. 83 (2010) (arguing for the adoption of decisional rules that
align shareholder interests with corporate political donation decisions); Issacharoff, supra
note 93 (discussing possibilities for reform in the wake of Citizens United); Kathleen M.
Sullivan, Two Concepts of Freedom of Speech, 124 HARV. L. REV. 143 (2010) (presenting equal-
ity and liberty as the two visions of free speech); Comment, Citizens United v. FEC: Corpo-
rate Political Speech, 124 HARV. L. REV. 75 (2010).
117 Compare Citizens United v. FEC, 558 U.S. 310, 359–61 (2010) (focusing on quid pro
quo corruption), with id. at 447–48 (Stevens, J., concurring in part and dissenting in part)
(arguing for a broader conception of corruption).
118 Buckley v. Valeo, 424 U.S. 1, 58 (1976) (per curiam).
119 Id. at 26.
120 Id. at 27.
121 Id.
quid pro corruption (or its appearance) only,122 this characterization seems
inaccurate. The opinion is strongly supportive of what amounts to a prophy-
lactic approach to the problem.123 The Court reasoned that bribery and dis-
closure laws will only catch “the most blatant and specific attempts of those
with money to influence governmental action.”124 Thus several aspects of
the opinion lend themselves to a broad reading. It endorses a prophylactic
approach, accepts the concept of “improper influence”125 and accepts the
concept of appearances of corruption.126
Post-Buckley, the Court has been divided into two camps: those who read
it to support reaching improper influence beyond quid pro quo arrange-
ments, and those who read it as limited to them.127 This division parallels
the equality-against-liberty divisions in First Amendment analysis generally.128
Professor Issacharoff views the latter as having prevailed in the campaign
finance context. For him, under “the core analytic structure of Buckley,”
“only the risk of explicit quid pro quo corruption appears to survive as a basis
for regulating campaign finance.”129 The broader reading achieved some
traction, but was handicapped by its close linkage of “improper” influence to
inequalities of wealth.130 The problem for the broad-reading camp has been
that Buckley struck down expenditure limitations on First Amendment
grounds,131 even though expenditures represent outlays from those who can
afford them, thus presenting an equality issue.132 The Court found in part
that “the independent advocacy restricted by the provision does not presently
122 See, e.g., Citizens United, 558 U.S. at 359–60.

123 See Buckley, 424 U.S. at 28–29 (upholding Congress’s authority to enact contribution
limits “to deal with the reality or appearance of corruption . . . .”).
124 Id. at 28.
125 See id. at 27 (holding that avoiding the appearance of improper influence consti-
tutes a legitimate interest).
126 See id. at 58 (holding that contribution limits ameliorate the appearance of corrup-
tion); Brown, supra note 48, at 758 (discussing concept of appearances).
127 See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1468–69 (2014) (Breyer, J., dissent-
ing) (advocating a broad reading of Buckley).
128 Sullivan, supra note 116, at 143–45.
129 Issacharoff, supra note 93, at 125.
130 See id. at 126 (“So far, the debates at the Supreme Court have asked only whether
the candidates are corrupted through illicit quid pro quo arrangements, or per the dis-
sents, whether electoral outcomes are distorted as a result of concentrated corporate and
private wealth.”).
131 Buckley, 424 U.S. at 51, 54, 58.
132 This point illustrates a tension that is present throughout the campaign finance
reform jurisprudence. On the one hand, all participants have equal rights under the First
Amendment to speak. On the other hand, expensive “issue advertisements” on television,
for example, are only a possibility for persons or entities with substantial resources. See
Nicholas Confessore, Outside Groups with Deep Pockets Lift G.O.P., N.Y. TIMES (Nov. 5, 2014),
http://www.nytimes.com/2014/11/06/us/politics/koch-brothers-republican-super-pac-
spending-pays-off.html?_r=0.
appear to pose dangers of real or apparent corruption comparable to those

identified with large campaign contributions.”133
I think that any dismissal of those who read Buckley broadly does not give
adequate consideration to the fact that they have come up with an alternative
reason, besides equality in the campaign itself, for going beyond quid pro
quo: the dangers of “undue influence”134 and greater “access.”135 The effect
of unequal resources extends beyond the campaign. It is not just that these
Justices “allowed disproportionate influence on officeholders’ judgment to
stand in for corruption.”136 For them, disproportionate influence is corrup-
tion. At the very least, the emphasis shifts from the equality rationale that the
wealthy are participating more effectively than others to get their candidates
elected. The focus now is on what happens after the election—the donors
and independent spenders corrupt the governmental process by leveraging
their political activities into access and influence.137 Those who adopt this
position, of course, recognize that wealth makes this corruption possible.
Thus they favor prophylactic measures to prevent wealth from having down-
the-line influence. Despite its appeal, this approach may seem somewhat
naı̈ve. A major reason for participating in the first place is to have down-the-
line influence. First Amendment rights permit people to participate to the
fullest extent, except for quid pro quos. The protection of these rights
extends to what happens later. Exerting influence after the election can be
seen as an extension of the campaign, not corruption.
A comparison of the different views that prevailed in McConnell and Citi-
zens United illustrates the division within the Court over the nature and pres-
ence of corruption. McConnell involved campaign finance reform legislation
that, among other things, restricted “soft money” contributions to political
parties.138 The legislation—known as the Bipartisan Campaign Reform Act
(BCRA)139—also restricted corporate and union funding of “electioneering
communications.”140 The majority upheld both sets of restrictions. Its analy-
sis drew heavily on equality considerations. Austin was cited as establishing
the validity of legislation aimed at “the corrosive and distorting effects of
133 Buckley, 424 U.S. at 46.

134 See Citizens United v. FEC, 558 U.S. 310, 447–48 (2010) (Stevens, J., concurring in
part and dissenting in part).
135 See id. at 454–55.
136 Issacharoff, supra note 93, at 124 (emphasis added).
137 See generally LESSIG, supra note 73 (exploring corruption in United States politics).
Lessig refers to this phenomenon as “dependence corruption.” Id. at 233. Lessig contrasts
this phenomenon with “the corruption regulated by bribery statutes.” Id. at 107. His
excellent analysis is devoted almost exclusively to corruption in the electoral system. There
is, for example, the obligatory criticism of Citizens United. Id. at 238–45.
138 McConnell v. FEC, 540 U.S. 93, 101–02, 105 (2003), overruled in part by Citizens
United, 558 U.S. at 365–66.
139 Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 203, 116 Stat. 81,
91 (2002) (codified as amended at 52 U.S.C. § 30101 (2012)).
140 Id. § 201(f)(3)(A), 116 Stat. at 89.
immense aggregations of wealth.”141 However, the Court dealt extensively

with corruption. It drew on Buckley for the proposition that the anticorrup-
tion interest is “not limited . . . to the elimination of cash-for-votes
exchanges.”142 In treating influence and access as corruption, a crucial
building block was the earlier statement in Nixon v. Shrink Missouri Govern-
ment PAC143 referring to “ ‘improper influence’ and ‘opportunities for abuse’
in addition to ‘quid pro quo arrangements.’”144 The McConnell majority thus
engaged in a logical extension of defining corruption from Buckley’s endorse-
ment of prophylactic measures to reach quid pro quo agreements. Corrup-
tion is seen as reaching beyond quid pro quos to “improper influence” on
(elected) government officials that can be regulated through limits on both
contributions and expenditures.
Justice Kennedy’s dissent offered a quite different concept of corrup-
tion, one that the majority derided as a “crabbed view of corruption.”145 He
saw that the majority was attempting to extend Buckley beyond quid pro quo,
and insisted that that case was focused on “an exchange featuring quid pro quo
potential—contributions directly to a candidate.”146 He accepted the possi-
bility of “undue influence,” but insisted that it could only come from “actual
or apparent quid pro quo arrangements.”147 For him, the countervailing con-
sideration is that in a representative democracy, those elected will respond
more favorably to those who supported them, including by allowing influ-
ence and access. Access is corruption only if it is purchased.
Access in itself, however, shows only that in a general sense an office-
holder favors someone or that someone has influence on the officeholder.
There is no basis, in law or in fact, to say favoritism or influence in general is
the same as corrupt favoritism or influence in particular. By equating vague
and generic claims of favoritism or influence with actual or apparent corrup-
tion, the Court adopts a definition of corruption that dismantles basic First
Amendment rules, permits Congress to suppress speech in the absence of a
quid pro quo threat, and moves beyond the rationale that is Buckley’s very
foundation.148
The problem for Justice Kennedy was identifying “the bad form of
responsiveness.”149 The only way to do so is to demonstrate enough danger
141 Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 660 (1990), overruled by
Citizens United, 558 U.S. at 365.
142 McConnell, 540 U.S. at 143.
143 528 U.S. 377 (2000).
144 Id. at 389 (emphasis added) (quoting Buckley v. Valeo, 424 U.S. 1, 28 (1976) (per
curiam)).
145 McConnell, 540 U.S. at 152; see also Citizens United, 558 U.S. at 447 (Stevens, J., con-
curring in part and dissenting in part) (referring to Justice Kennedy’s “crabbed view” of
corruption).
146 McConnell, 540 U.S. at 293 (Kennedy, J., concurring in the judgment and dissenting
in part).
147 Id. at 294 (citing Buckley, 424 U.S. at 45).
148 Id. at 296.
149 Id. at 297.
of a quid pro quo that regulation, including prophylactic regulation, is war-

ranted. But if one has to rely on prophylactic legislation that targets conduct
with “inherent corruption potential,” deference to Congress’s ability to dis-
cern that potential might support the majority. The magical nature of the
quid pro quo line evaporates when one recognizes that Buckley was not lim-
ited to actual ones.
Citizens United is essentially the flip side of McConnell with Justice Ken-
nedy writing the majority opinion.150 At issue was BCRA’s prohibition on
corporate electioneering communications. His opinion repeated the themes
of his McConnell dissent. Justice Kennedy recognized that the governmental
interest in preventing corruption or its appearance could justify restrictions
on activity otherwise protected by the First Amendment. However, he
insisted “that interest [is] limited to quid pro quo corruption.”151 Beyond that
point, the very nature of democracy will generate influence and access that
do not constitute corruption.
Favoritism and influence are not . . . avoidable in representative politics. It is
in the nature of an elected representative to favor certain policies, and, by
necessary corollary, to favor the voters and contributors who support those
policies. It is well understood that a substantial and legitimate reason, if not
the only reason, to cast a vote for, or to make a contribution to, one candi-
date over another is that the candidate will respond by producing those
political outcomes the supporter favors. Democracy is premised on
responsiveness.152
The current majority seems firmly ensconced in its view. The two wings
of the Court reiterated their divergent visions of corruption in McCutcheon v.
FEC in 2014.153 The applicable law restricted “how much money a donor
may contribute in total to all candidates or committees.”154 The plaintiff
wished to exceed that aggregate with respect to both the number of candi-
dates and the number of committees to which he could contribute. Much of
the analysis focused on whether his proposed conduct would permit “circum-
vention”155 of contribution limits whose validity has remained unquestioned
since Buckley. Circumvention would permit multiple contributions to differ-
ent candidates ending up as excessive amounts going to one candidate, thus
violating the statute. The majority saw little risk of circumvention; the dissent
presented examples purporting to show how it could occur.156
One might think that this was the central, if not the only, issue in the
case, given the accepted validity on amounts of contributions flowing from a
150 Citizens United, 558 U.S. at 318.

151 Id. at 359.
152 Id. at 359 (quoting McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concur-
ring in the judgment and dissenting in part)).
153 134 S. Ct. 1434 (2014).
154 Id. at 1442 (plurality opinion).
155 Id.
156 See id. at 1475–78 (Breyer, J., dissenting) (discussing impact of lifting aggregate lim-
its on campaign contributions).
donor to a single candidate. However, the McConnell-Citizens United dispute

flared up again. The current majority prevailed in an opinion that added
little to the analysis of the problem, but demonstrated a hardening of its
approach. The opinion began with a recapitulation of general principles of
campaign finance law. Citizens possess a First Amendment right “to partici-
pate in democracy through political contributions.”157 That right can be
restricted to prevent corruption or its appearance but not to “reduce the
amount of money in politics,”158 or to “level the playing field.”159 Central to
democracy is a reciprocity of support from constituents and a responsiveness
to that support. “Ingratiation and access . . . are not corruption.”160 Cam-
paign finance regulations that target quid pro quo corruption—“direct
exchange of an official act for money”161—or its appearance can satisfy the
First Amendment.162 The aggregate limits did not satisfy this basic test.163
Spending a lot of money on a lot of candidates does not represent an effort
to “control the exercise of [any particular] officeholder’s official duties.”164
None of this seems particularly new.
What is new is Justice Breyer’s reformulation in dissent of the founda-
tions for a broad anticorruption rationale.165 He began by noting the nar-
rowness of the majority’s formulation of quid pro quo—one that would
require “an act akin to bribery”166—and its defense of “efforts to obtain
‘“influence over or access to” elected officials or political parties.’ ”167 The
novelty of Justice Breyer’s critique is that he grounds it squarely in the First
Amendment rights of citizens.168 The goal of the Amendment’s protection
of speech is to ensure that the public can speak to the government, and that
that speech will be heard and acted upon.169 Thus “corruption cuts the link
between political thought and political action, [and] a free marketplace of
political ideas loses its point.”170 The First Amendment adds a fresh perspec-
tive, but its invocation sounds a lot like Austin’s distortion rationale and more
general insistences on equality in the political process—including the attacks
157 Id. at 1441.

158 Id.
159 Id. at 1450.
160 Id. at 1441 (quoting Citizens United v. FEC, 558 U.S. 310, 360 (2010)).
161 Id.
162 Id.
163 Id. at 1442.
164 Id. at 1450.
165 Id. at 1465 (Breyer, J., dissenting).
166 Id. at 1466.
167 Id. (quoting id. at 1450–51 (plurality opinion)).
168 See id. at 1466–68.
169 See id. at 1467 (“Accordingly, the First Amendment advances not only the individ-
ual’s right to engage in political speech, but also the public’s interest in preserving a demo-
cratic order in which collective speech matters.”).
170 Id.
on access and influence—that the majority had already rejected. Not surpris-
ingly, it rejected the First Amendment critique of its position as well.171
In the end, McCutcheon may not break new ground. The disagreement
over circumvention seems more important than rehashing the Citizens United
debate.172 I am inclined to agree with the majority that there are substantial
anticircumvention measures in place, although Justice Breyer argues persua-
sively that they might not work. Either way, McCutcheon adds little to corrup-
tion analysis. Still, it represents the latest round in the ongoing debate over
corruption in the electoral context.
Before turning to the Court’s decisions on ordinary corruption, there
are three aspects of the campaign finance decisions that should be empha-
sized in considering a possible analytical kinship between the two contexts.
The first is that one should be hesitant to ascribe to the Court a position on
campaign finance regulation. There is a solid, seemingly unbridgeable divi-
sion between the Citizens United (and McCutcheon) majority and dissenters.
However, the present positions have not always been those of the Court. Aus-
tin and McConnell are 5-4 decisions that espouse the views of the current dis-
senters. Moreover, one can find statements supporting their views in other
cases. The tables have turned. Citizens United overruled Austin and a portion
of McConnell.173 The cases have been presented as “an almost unbroken
streak” of “losses for reform.”174 However, a 180-degree change is only a vote
away. All members of the Court agree that quid pro quo arrangements con-
stitute corruption. For some that is the beginning of the analysis, and for
others it is the end of the analysis. Thus, deriving the Court’s position on
corruption from these cases may be a difficult enterprise.
A second important point is the dominant role that the First Amend-
ment plays in the debate. Professor Sullivan argues that “both sides in Citi-
zens United are committed to free speech, but to two very different visions of
free speech.”175 The dissenters see “the value of equality [as] prior to the
value of speech.”176 The current majority, on the other hand, sees a close
connection between free speech and political liberty. It “treats with skepti-
cism all government efforts at speech suppression that might skew the private
ordering of ideas.”177 This is an important debate. Indeed, one can view
Justice Breyer’s McCutcheon dissent as an attempt to reframe its terms.178 It is
not, however, particularly relevant to the task of applying statutes aimed at
171 Id. at 1449–50.

172 The plurality showed little interest in revisiting precedent. See, e.g., id. at 1445 (plu-
rality opinion) (“[W]e see no need in this case to revisit Buckley’s distinction between con-
tributions and expenditures and the corollary distinction in the applicable standards of
review.”).
173 Citizens United v. FEC, 558 U.S. 310, 312 (2010).
175 Sullivan, supra note 116, at 144.
176 Id. at 145.
177 Id.
178 See McCutcheon v. FEC, 134 S. Ct. 1434, 1465 (2014) (Breyer, J., dissenting) (pro-
viding a First Amendment defense of campaign finance laws).
ordinary corruption. A final point is that the division between the two camps
also rests on different views of the electoral process. As Professor Issacharoff
aptly puts it, “The logic of Justice Kennedy’s majority opinion in Citizens
United was ultimately that any undue pressures on the body politic will be
cleansed by the competitive wash of the electoral process.”179 The process
works best with minimal governmental intervention, especially given the pres-
ence of speech interests. For the majority, there will inevitably be winners
and losers. An inescapable part of the process is responsiveness by the win-
ners to those who got them there.
The debate is important and ongoing. It has engendered considerable
discussion of “corruption” within and without the Court.180 However, it is far
from clear that the extensive discussion of corruption in the campaign
finance context should have much, if any, bearing on the key questions with
respect to ordinary corruption. The next Section explores four major
Supreme Court decisions in this context, including a brief consideration of
whether any particular view of corruption can be discerned in them. It then
examines the thesis that both bodies of law do, in fact, show analytical simi-
larities; what the Court has said about corruption in the campaign finance
context carries over to its view on ordinary corruption to the extent of a
convergence between the two.
B. The Supreme Court and Ordinary Corruption—Four Key Cases
1. Sun-Diamond
This Section begins with a discussion of United States v. Sun-Diamond

Growers of California.181 The case involves what Professor Welling refers to as
“[t]he little-known federal crime called gratuities.”182 But the facts are a mir-
ror image of what the campaign finance cases refer to as attempting to secure
“influence” and “access.” Moreover, Justice Scalia’s analysis for a unanimous
Court—although sometimes viewed as straightforward statutory construc-
tion183—seems to contain elements of the same concept of corruption, as
found in Citizens United.
Sun-Diamond is a trade association of agricultural cooperatives. It was
charged with giving the Secretary of Agriculture over $10,000 in gifts, includ-
ing sports tickets, luggage, and meals.184 It was convicted of violating the

180 See, e.g., David Cole, How Corrupt Are Our Politics?, N.Y. REV. BOOKS (Sept. 25, 2014),
http://www.nybooks.com/articles/archives/2014/sep/25/how-corrupt-are-our-politics/
(reviewing TEACHOUT, supra note 1, and presenting general observations on the Court’s
view of corruption).
181 526 U.S. 398 (1999). The author was on the brief for the government.
182 Welling, supra note 23, at 419.
183 See, e.g., Jacob Eisler, The Unspoken Institutional Battle over Anticorruption: Citizens
United, Honest Services, and the Legislative-Judicial Divide, 9 FIRST AMEND. L. REV. 363, 428
(2011) (“Sun-Diamond offered a convincing reading of the illegal gratuities statute . . . .”).
184 Sun-Diamond, 526 U.S. at 401.
federal gratuity statute. The relevant portion of the statute, as quoted by the
Supreme Court, provides that anyone who:
[O]therwise than as provided by law for the proper discharge of official
duty . . . directly or indirectly gives, offers, or promises anything of value to
any public official, former public official, or person selected to be a public
official, for or because of any official act performed or to be performed by
such public official, former public official, or person selected to be a public
official . . . shall be fined under this title or imprisoned for not more than
two years, or both.185
On review of the (affirmed) conviction, Justice Scalia concluded that the
gifts from the agricultural trade association to the Secretary of Agriculture
did not violate the gratuities statute. He appeared to concede that the gifts
might have been given “to build a reservoir of goodwill”186 but reasoned that
such an act would not satisfy the explicit text.187 The core of Justice Scalia’s
analysis was that gifts motivated by an official’s position, and the resultant abil-
ity to help the donor, are not enough to satisfy the statute. A link to a partic-
ular act is required.188 The statute prohibits “only gratuities given or
received ‘for or because of any official act performed or to be performed.’ ”189
“Official act” did not suggest a broad reading because Congress could have
referred to “such official’s ability to favor the donor in executing the func-
tions of his office.”190 Indeed, Justice Scalia was able to find official-position
statutes such as those prohibiting payments from a bank employee to a bank
examiner.191 The term “any” proved a bit more problematic. Justice Scalia
resorted to a hypothetical in the interrogative voice to demonstrate that it
referred to a particular act rather than to any act of a currently unspecified
nature that the official might perform in the future.192 Gifts for future acts
might seem like more of a problem, but Justice Scalia finessed it. He read it
as referring to known future acts at the time of the gift.193 Finally, Justice
Scalia expressed sympathy for government employees facing “an intricate
web of regulations, both administrative and criminal”194 that could prove to
be “snares for the unwary.”195
Although presented as straightforward textualism, the result in Sun-Dia-
mond is deeply troubling.196 As for construction, it is noteworthy that all
185 Id. (alterations in original) (quoting 18 U.S.C. § 201(c)(1)(A) (1994)).

186 Id. at 405.
187 Id. at 406.
188 Id.
189 Id. (quoting 18 U.S.C. § 201(c)(1)(A)).
190 Id.; see also id. at 406–07.
191 Id. at 409 (citing 18 U.S.C. §§ 212–13).
192 See id. at 406.
193 See id. at 408.
194 Id. at 409.
195 Id. at 411.
196 I believe that this is Professor Welling’s position. She views the interpretive conclu-
sion as defensible as the statute is currently written. See Welling, supra note 23, at 419.
However, Professor Welling’s subsequent analysis, drawing in part on social science
three courts that decided the case read the statute differently.197 As for the
result, the gifts in question present the archetypal example of what Congress
was aiming at: conduct short of bribery that transfers things of value to a
public official precisely in order to “build a reservoir of goodwill.”198 The
irony of Sun-Diamond is that regulated interests cannot reward public officials
for past favorable action, and apparently cannot reward them for future
action that they have announced. These are classic examples of the infusion
of outside resources, and the resultant private gain by the official, to influ-
ence government. An outsider might say, for instance, “Here is an example
of what we can do for you when you do, or commit to do, something for us.”
Yet, the most egregious form of this corruption goes unpunished—the use of
outside resources to attempt to bring about favorable action because the
donor cannot yet identify the favorable action. The requirement of the spe-
cific link wipes out the most important aspect of the gratuities offense and
creates a situation where the kind of conduct at issue in Sun-Diamond is either
bribery199 or legal.
One can find in Sun-Diamond three possible parallels to the campaign
finance cases.200 The first is a somewhat tolerant view of influence seeking.
The second is the strong note of sympathy for those who must deal with
complicated federal measures aimed at preventing corruption. This theme
was also sounded in Citizens United.201 As I have noted elsewhere, anticorrup-
tion measures flowered in the post-Watergate era.202 The passage of time has
exposed possible flaws.203 Finally, Sun-Diamond’s emphasis on a link—which
research on influence, demonstrates convincingly that position-based gifts are “danger-

ous.” Id. at 431–36.
197 The district court adopted a straightforward official position analysis. The court of
appeals essentially modified this approach, requiring “intent to reward past favorable acts
or to make future ones more likely.” See Sun-Diamond, 526 U.S. at 403–04.
198 Id. at 405. Justice Scalia felt that the district court took this approach to the statute.
It might fit within the circuit court’s approach as well. However, he rejected it based on
the text. Id. at 405–06.
199 The Court’s requirement of a link essentially turns the statute into a form of prohi-
bition on the sort of quid pro quo conduct reached by bribery statutes. Congress dealt
with both crimes in the same statute. See 18 U.S.C. § 201(b) (2012) (bribery); id. § 201(c)
(gratuities). The fact of different treatment argues for viewing the two subsections as creat-
ing two separate crimes.
200 See TEACHOUT, supra note 1, at 229.
201 See Citizens United v. FEC, 558 U.S. 310, 334–35 (2010) (discussing a possible regu-
latory chilling effect on political speech); cf. McCutcheon v. FEC, 134 S. Ct. 1434, 1447
(2014) (plurality opinion) (referring to FEC’s “intricate regulatory scheme”). In Sun-Dia-
mond, Justice Scalia referred variously to “an intricate web of regulations,” a “regulatory
iceberg,” possible “snares for the unwary,” and “regulations and statutes littering” the field
of government ethics. 526 U.S. at 409–12. Overall, he viewed the situation facing federal
employees as a “regulatory puzzle.” Id. at 412.
202 See Brown, supra note 48, at 751–56 (discussing post-Watergate consensus regarding
the need to ensure that government officials act in the public interest).
203 See id. at 756–64 (discussing the post-Watergate approach to fostering honesty in
government); see also FRANK ANECHIARICO & JAMES B. JACOBS, THE PURSUIT OF ABSOLUTE
is present in the “reward” situations—may be indicative of a preference for

quid pro quo situations, or something like them, as presenting the strongest
case for criminalizing possibly corrupt conduct. Specificity, not generalized
efforts, is the key to criminalization.204
2. Skilling and the Restriction of Honest Services
In the same term it decided Citizens United, the Court also handed down
Skilling v. United States,205 a case that narrowed the scope of ordinary corrup-
tion law. The actual case involved a private fiduciary, not a public official,
but presented the question of the scope of the “honest-services” doctrine.206
This doctrine has frequently arisen in public corruption cases.207 Its history
is complicated. The mail-fraud statute prohibits use of the mails to further
“any scheme or artifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or promises.”208
Reading the statute in the disjunctive, the lower federal courts developed the
concept that fraud could cover intangible rights, and that among these was
the intangible right to honest services.209 The concept was extended from
the public sphere to private fiduciaries.210 In 1987, the Court’s decision in
McNally v. United States211 put a stop to this judicial development. It rejected
the disjunctive argument, presented the statute as limited to property rights,
and invoked considerations of ambiguity and federalism.212 Congress
responded quickly through the enactment of 18 U.S.C. § 1346, which pro-
vides that for purposes of the mail- and wire-fraud statutes, “the term ‘scheme
or artifice to defraud’ includes a scheme or artifice to deprive another of the
intangible right to honest services.”213 The doctrine had long been contro-
versial. It was viewed as an important prosecutorial tool,214 but also as a
INTEGRITY: HOW CORRUPTION CONTROL MAKES GOVERNMENT INEFFECTIVE xiii (1996)

(describing how “the mainstream anticorruption project imposes serious costs on public
administration while failing to control corruption”).
204 See Mills & Weisberg, supra note 84, at 1384–87. The authors discuss both Justice
Scalia’s views on corruption in the campaign finance context and his opinion in Sun-Dia-
mond. Id. They note a preference for the quid pro quo requirement in both contexts. Id.
205 561 U.S. 358 (2010).
206 Id. at 367.
207 See generally ABRAMS ET AL., supra note 17, at 309–20 (discussing the scope of the
mail fraud statute).
208 18 U.S.C. § 1341 (2012).
209 E.g., Shushan v. United States, 117 F.2d 110, 115 (5th Cir. 1941); see generally Moohr,
supra note 75 (tracing the development of the intangible rights doctrine).
210 See generally ABRAMS ET AL., supra note 17, at 324–61.
211 483 U.S. 350 (1987), superseded by statute, Anti-Drug Abuse Act of 1988, Pub. L. No.
100-690, § 7603(a), 102 Stat. 4181, 4508 (codified as amended at 18 U.S.C. § 1346 (2012)).
212 Id. at 359–60.
213 18 U.S.C. § 1346.
214 ABRAMS ET AL., supra note 17, at 324–25.
highly ambiguous, subjective standard and an invitation to prosecutorial

overreach.215
In 2009, in Sorich v. United States, Justice Scalia expressed forcefully the
concerns about the statute’s operation in dissenting from a denial of certio-
rari to review an honest services conviction for patronage hiring.216 The
Court revisited the issue the following year in Skilling, and held that the stat-
ute did indeed present serious vagueness problems.217 Rather than invali-
date it, however, the Court “narrowed” the statute to encompass only bribes
and kickbacks.218 It reasoned that this conduct represented the “core” of the
improprieties Congress wanted to reach. The doctrine in its broad, judicially
created form, had presented the two classic vagueness problems: inadequate
notice to citizens of what conduct is prohibited and the encouragement to
officials of arbitrary enforcement.219 As narrowed, however, the statutory
form did not present these problems. Bribes and kickbacks had always been
viewed as classic honest services fraud, and were recognized as crimes under
other federal statutes. Thus, clarity was ensured, and arbitrary prosecution
discouraged.220
Justice Scalia, who seemed to have won a major victory, concurred only
in the result, insisting that the entire statute should have been invalidated as
vague.221 In his Sorich dissent from the denial of certiorari, he noted the
broad range of conduct covered by the doctrine:
Courts have upheld convictions of a local housing official who failed to dis-
close a conflict of interest, a businessman who attempted to pay a state legis-
lator to exercise “informal and behind-the-scenes influence on legislation,”
students who schemed with their professors to turn in plagiarized work, law-
yers who made side payments to insurance adjusters in exchange for the
expedited processing of their clients’ pending claims, and, in the decision
we are asked to review here, city employees who engaged in political-
patronage hiring for local civil-service jobs.222
In Skilling, he focused on the various standards courts had found to
underlie the concept. Courts had invoked “public policy and . . . standards of
moral uprightness, fundamental honesty, fair play and right dealing,”223 as
215 See, e.g., United States v. Margiotta, 688 F.2d 108, 143 (2d Cir. 1982) (Winter, J.,
concurring in part and dissenting in part).
216 555 U.S. 1204, 1204–08 (2009) (Scalia, J., dissenting from denial of certiorari).
217 Skilling v. United States, 561 U.S. 358, 402–06 (2010).
218 Id. at 408–09 (“To preserve the statute without transgressing constitutional limita-
tions, we now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre-
McNally case law.”).
219 Id. at 412 (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)).
220 Id.
221 Id. at 415 (Scalia, J., concurring in part and concurring in the judgment).
222 Sorich v. United States, 555 U.S. 1204, 1205 (2009) (Scalia, J., dissenting from
denial of certiorari) (internal citations omitted).
223 Skilling, 561 U.S. at 418 (Scalia, J., concurring in part and concurring in the judg-
ment) (quoting United States v. Mandel, 591 F.2d 1347, 1361 (4th Cir. 1979), overruled as
recognized in United States v. Thomas, 953 F.2d 107, 110 n.3 (4th Cir. 1991)).
well as a right to “honest and impartial government.”224 All of this, for Jus-
tice Scalia, made § 1346 a delegation to the federal courts to create common
law crimes, a power they lack and which cannot be given them.225
There was thus a sharp disagreement within the Court, but it was not
over the nature of corruption. The Justices were unanimous in finding a
vagueness defect in § 1346 but disagreed over whether to narrow the statute
to a possible core or to invalidate it.226 The disagreement presented a seri-
ous question about the proper interaction between the Court and Congress
in such situations. Justice Scalia emphasized that apparently “no court”
either pre- or post-McNally had identified bribery and kickbacks as the core
of honest services.227 The majority seemed heavily influenced by Professor
Albert Alschuler’s statement in an amicus brief setting forth the goal of
“establish[ing] a uniform national standard, defin[ing] honest services with
clarity, reach[ing] only seriously culpable conduct, and accomplish[ing]
Congress’s goal of ‘overruling’ McNally.”228
Skilling has been described as a “bombshell.”229 It supposedly “gutted
and eviscerated one of federal prosecutors’ favorite weapons.”230 However,
this perspective may be more true at the analytical level than in practice.231
The kinds of cases Justice Scalia described in his Sorich dissent,232 with the
possible exception of conflicts of interest cases,233 lie more at the outer
boundary of the federal anticorruption enterprise than at its core. Like Sun-
Diamond, Skilling narrowed an anticorruption statute. However, the analysis
was not based on a parsing of the statute but on constitutional concerns of
vagueness applicable to all statutes.234
Still, the importance of Skilling should not be underestimated. It
changed the anticorruption landscape. Its emphasis on bribery and kick-
backs is an emphasis on quid pro quo transactions with a strong element of
224 Id. at 417 (citing McNally v. United States, 483 U.S. 350, 355 (1987)).
225 Id. at 415. But see Griffin, supra note 29, at 1826–29 (defending, in the corruption
context, lawmaking under broad congressional delegations).
226 See Skilling, 561 U.S. at 418 (majority opinion).
227 Id. at 423 (Scalia, J., concurring in part and concurring in the judgment).
228 Id. at 411 (majority opinion) (quoting Brief of Albert W. Alschuler as Amicus Curiae
in Support of Neither Party at 28–29, Weyhrauch v. United States, 557 U.S. 934 (2009)
(No. 08-1196)).
229 ABRAMS ET AL., supra note 17, at 341.
230 J.B. Perrine & Patricia M. Kipnis, Navigating the Honest Services Fraud Statute After
Skilling v. United States, 72 ALA. LAW. 295, 298 (2011).
231 See Griffin, supra note 29, at 1838–42 (exploring post-Skilling grounds for
prosecution).
denial of certiorari).
233 See ABRAMS ET AL., supra note 17, at 341–42 (discussing implications of Skilling on
conflicts of interest prosecutions); see also id., at 352–55 (discussing possible legislative
overruling of Skilling).
234 Skilling v. United States, 561 U.S. 358, 412 (2010). For a helpful discussion of the
issues resolved, and not resolved, in Skilling, see Sara Sun Beale, An Honest Services Debate, 8
OHIO ST. J. CRIM. L. 251 (2010).
specificity. Justice Scalia’s concurring opinion manifests an obvious con-

tempt for attempting to translate aspirations for “good government” into
criminal law. The case may reflect uncertainty about how far to push anticor-
ruption law, as well as a recognition that an array of interactions between
citizens and public officials takes place outside the electoral context.235 Even
so, an examination of two of the Court’s Hobbs Act decisions helps us focus
on the difference that context makes.
3. The Hobbs Act Extortion Decisions and the Crucial Distinction

Between the Electoral and Ordinary Corruption Contexts
a. McCormick
The Hobbs Act prohibits—in part—extortion, defined as “the obtaining
of property from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, or under color of official
right.”236 Once courts concluded that extortion “under color of official
right” was a separate form of extortion, unrelated to force or fear, the Hobbs
Act became a major tool in the federal anticorruption arsenal.237 In McCor-
mick v. United States, the electoral and ordinary corruption contexts came
together when a state legislator was accused of extorting a campaign contri-
bution.238 McCormick had supported, and continued to support, legislation
benefiting unlicensed foreign doctors. During his reelection campaign he
had an “unfriendly”239 conversation with the doctors’ lobbyist informing him
that he (McCormick) “had not heard anything from the foreign doctors.”240
Shortly thereafter, he received cash payments from the doctors.241 McCor-
mick was convicted of Hobbs Act extortion under color of official right.242
The principal issue on appeal was whether, under the Hobbs Act, receipt
of campaign contributions from an interest group under such circumstances
requires a quid pro quo—“a promise of official action or inaction in
exchange for any payment or property received”243—and how far the outer
boundaries of the concept extend. McCormick’s conviction was reversed.
Justice White’s opinion for the Court contains language that sounds like a
direct precursor of Citizens United. He noted that legislators often support
legislation that will benefit groups in their district. Moreover, they must raise
235 Cf. Mills & Weisberg, supra note 84, at 1388 (discussing the “inherent vagueness
and subtlety of the continuum of public/private relations”).
236 18 U.S.C. § 1951(b)(2) (2012).
237 See Evans v. United States, 504 U.S. 255, 290 (1992) (Thomas, J., dissenting) (“Over
the past 20 years, the Hobbs Act has served as the engine for a stunning expansion of
federal criminal jurisdiction into a field traditionally policed by state and local laws—acts
of public corruption by state and local officials.”).
238 500 U.S. 257 (1991).
239 Id. at 281–82 (Stevens, J., dissenting).
240 Id. at 260 (majority opinion).
241 Id.
242 Id. at 261, 265.
243 Id. at 266.
money to be elected and will “claim support on the basis of their views and
what they intend to do or have done.”244 I will quote at length from the core
of his analysis:
Whatever ethical considerations and appearances may indicate, to hold that
legislators commit the federal crime of extortion when they act for the bene-
fit of constituents or support legislation furthering the interests of some of
their constituents, shortly before or after campaign contributions are solic-
ited and received from those beneficiaries, is an unrealistic assessment of
what Congress could have meant by making it a crime to obtain property
from another, with his consent, “under color of official right.” To hold oth-
erwise would open to prosecution not only conduct that has long been
thought to be well within the law but also conduct that in a very real sense is
unavoidable so long as election campaigns are financed by private contribu-
tions or expenditures, as they have been from the beginning of the
Nation.245
This analysis rests on the nature of representative democracy, and
sounds a lot like the majority opinion of Citizens United. The First Amend-
ment was not explicitly invoked. However, since Buckley, political contribu-
tions enjoy a form of constitutional protection.246 The McCormick majority
conceded that they lose that protection if there is a promise “by the official to
perform or not to perform an official act.”247 But the promise must be
“explicit.”248 Campaign contributions from those who might benefit from the
legislator’s actions are normal and presumptively valid. Again foreshadowing
Citizens United, Justice Stevens dissented. He agreed on the need for a quid
pro quo, but disagreed on the need for explicitness. “Subtle extortion is just
as wrongful—and probably much more common—than the kind of express
understanding that the Court’s opinion seems to require.”249
The facts and circumstances of campaign contributions will vary widely.
They are, in the words of the Seventh Circuit Court of Appeals, “clothed with
[a] degree of respectability.”250 How far that cloak extends was the subject of
disagreement in McCormick. The majority wanted to protect the system of
contributions, even when a substantial element of reciprocity was present.
Justice Stevens might be seen as espousing more of a real-world view. Anyone
who looks at the facts knows why the doctors contributed and what prompted
it. For him, there was a “mutual understanding” and sufficient knowledge on
the part of both donor and recipient to satisfy any quid pro quo
requirement.251
244 Id. at 272.

245 Id.
246 See Buckley v. Valeo, 424 U.S. 1, 58–59 (1976) (per curiam). Also, treating political
contributions as “one aspect of the contributor’s freedom of political association.” See id.
at 24–25.
247 McCormick, 500 U.S. at 273.
248 Id. (emphasis added).
249 Id. at 282 (Stevens, J., dissenting).
250 United States v. Giles, 246 F.3d 966, 972 (7th Cir. 2001).
251 McCormick, 500 U.S. at 283 (Stevens, J., dissenting).
McCormick fits within the Buckley framework. Each requires a quid pro
quo involving official action before a campaign contribution can be invali-
dated. Buckley found it in the size of a contribution; McCormick focused on
the circumstances under which it is made, specifically whether there is an
explicit agreement tying it to future official action. The element of explicit-
ness extends not just to the fact of agreement, but to the action that is the
subject of the agreement. An obvious problem—which McCormick raises—is
how to apply it to payments made to public officials that are not elected, or to
elected officials outside the campaign context. At least when the Hobbs Act
is applied to such payments, a broad reading of McCormick could require an
explicit quid pro quo in all cases. The alternative would be a perhaps
unwieldy system of varying standards for finding one. On the other hand,
what the Seventh Circuit referred to as “[o]ther payments to officials”252 can-
not be justified as integral components of the nation’s system of representa-
tive democracy.253 McCormick specifically left the question open.254
b. Evans
Evans v. United States,255 decided one year after McCormick, is a difficult

case. It appears to establish that the quid pro quo requirement applies to all
Hobbs Act “under color of official right” prosecutions, regardless of the offi-
cial’s position, but it suggests that the requirement is less stringent if the
payment is not a campaign contribution. Evans’s difficulty stems in part
from the fact that the defendant was an elected official and that the payment
took two forms: a direct cash transfer and a check payable to his cam-
paign.256 The Court did not analyze the case as representing solely a contri-
bution. Instead, it treated the facts as representative of the general problem
of improper payments to “public official[s]” brought about by the official’s
ability to favor the donor.257
Justice Stevens’s opinion first had to deal with the statutory requirement
that the payment be “induced” by the official.258 He did not read this
requirement as the equivalent of initiation by the recipient; instead, he read
it as satisfied by the “wrongful acceptance of a bribe,”259 with “the coercive
element . . . provided by the public office itself.”260 More serious problems
were posed by the defendant’s argument that the conviction rested on pas-
sive acceptance without a quid pro quo.
252 Giles, 246 F.3d at 972.

253 See United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965) cited in Welling, supra
note 23, at 423 n.37.
254 See McCormick, 500 U.S. at 268 n.6.
255 504 U.S. 255 (1992).
256 Id. at 257.
257 Id. at 260.
258 Id. at 265.
259 Id. at 266.
260 Id.
The portion of the opinion rejecting this argument is not a model of

clarity. Justice Stevens stated that McCormick’s quid pro quo requirement was
satisfied.261 He suggested this includes an “agreement to perform specific
official acts”262 but stated the holding in the following, more general terms:
“[T]he Government need only show that a public official has obtained a pay-
ment to which he was not entitled, knowing that the payment was made in
return for official acts.”263 The case apparently stands for the proposition
that the quid pro quo requirement established by McCormick applies in all
contexts, at least in some form.264 However, it is not clear whether the
requirement has been watered down to knowing passive acceptance, or
whether McCormick’s explicitness test still applies beyond campaign
contributions.
Justice Kennedy, concurring, stated that Evans should be read as estab-
lishing the quid pro quo element across the board.265 However, he appears
to have abandoned explicitness. The quid pro quo is generated by the offi-
cial’s invocation of his authority “to induce payment of money or to other-
wise obtain property.”266 The key factor is what the official intends the payor
to believe:
The official and the payor need not state the quid pro quo in express terms,
for otherwise the law’s effect could be frustrated by knowing winks and nods.
The inducement from the official is criminal if it is express or if it is implied
from his words and actions, so long as he intends it to be so and the payor so
interprets it.267
Coming on the heels of McCormick, Evans is a remarkable decision. Six
members of the Court—including Justice Kennedy, the author of Citizens
United—read the Hobbs Act broadly to reach a form of bribery.268 The
requirement that a payment be “induc[ed] . . . under color of official right”
was deemed met by knowing acceptance, and with the justification that any
“coercive element is provided by the public office itself.”269 The Court did
import the concept of quid pro quo—a term not found in the statute270—
from McCormick. However, it treated that requirement as easily met. The
majority refers to “a payment in return for [an] agreement to perform specific
official acts.”271 However, Justice Kennedy seems correct in his gloss that the
261 Id. at 268.

262 Id. (emphasis added).
263 Id.
264 Id. at 268–69.
265 Id. at 272–73 (Kennedy, J., concurring in part).
266 Id. at 273.
267 Id. at 274. In the dissent, Justice Thomas focused on the meaning of “induced,” id.
at 288–89 (Thomas, J., dissenting), and also invoked considerations of federalism, id. at
290–94.
268 Id. at 257 (majority opinion).
269 Id. at 266.
270 See id. at 286 (Thomas, J., dissenting) (“This quid pro quo requirement is simply
made up.”).
271 Id. at 268 (majority opinion) (emphasis added).
agreement need not be express although the reference to “specific” acts

seems to preserve a degree of explicitness. Yet the Court’s statement of the
holding omits any reference to specificity.272
Overall, the Court gave a broad construction to an anticorruption stat-
ute. Justice Thomas, in dissent, stated that “[b]y stretching the bounds of
extortion to make it encompass bribery, the Court today blurs the traditional
distinction between the crimes.”273 The Court also rejected a plausible argu-
ment advanced by the dissent that the “rule of lenity compels adoption of the
narrower interpretation.”274 The broad definition of extortion seems to
reflect an underlying view of what constitutes corrupt payments to public offi-
cials generally.275 Evans leaves unresolved the precise operation of the quid
pro quo requirement in campaign contribution cases as opposed to ordinary
corruption. The payments at issue were, in part, “a campaign contribu-
tion.”276 It seems unlikely that the Court had retreated from the explicit
quid pro quo requirement of McCormick in that context.277 That case had
left open the treatment of “payments made to nonelected officials or . . .
payments made to elected officials that are properly determined not to be
campaign contributions.”278 Evans raises the possibility that these contexts
still require a quid pro quo, but that it is more easily met.279 This approach
protects the electoral process, but it is problematic to have two separate stan-
dards for what is already a difficult concept.
c. A Recapitulation and a Consideration of the Convergence Thesis

Part II’s examination of the cases appears to offer mixed empirical sup-
port for the thesis developed in Part I, that there are two separate bodies of
federal anticorruption law, neither drawn from the other nor conceptually
unrelated. The campaign finance cases—even though they hang by a 5-4
thread—represent a constitutionally based, wide-open view of the political
process in which participants use the resources at their disposal and expect to
272 Id. at 256.

273 Id. at 284 (Thomas, J., dissenting).
274 Id. at 289.
275 Id. at 268 (majority opinion) (“[T]he offense is completed at the time when the
public official receives a payment in return for his agreement to perform specific official
acts . . . .”).
276 Id. at 258.
277 McCormick v. United States, 500 U.S. 257, 273 (1991).
278 Id. at 268.
279 See ABRAMS ET AL., supra note 17, at 282–83 (discussing whether there are two quid
pro quo standards); see also United States v. Ganim, 510 F.3d 134, 143 (2d Cir. 2007) (stat-
ing that Evans modified the McCormick standard (citing United States v. Garcia, 992 F.2d
409, 414 (2d Cir. 1993))); Ilissa B. Gold, Explicit, Express, and Everything in Between: The Quid
Pro Quo Requirement for Bribery and Hobbs Act Prosecutions in the 2000s, 36 WASH. U. J.L. &
POL’Y 261, 288 (2011) (“The majority of circuits have accepted this important distinction
between the campaign and non-campaign contexts.”). Gold states that “this rule strikes an
appropriate balance between prosecuting corruption without unduly burdening legitimate
political activity.” Id. at 284.
be rewarded by policies favorable to their interests. Everyone knows there

will be winners and losers. The result is a narrow view of corruption that
reaches only egregious cases where contributions “buy” or “control” elected
representatives.280
This notion does not translate well to attempts to subvert the regular
processes of government. Admittedly, the ordinary corruption cases dis-
cussed above do not present as neat a picture as the campaign finance ones.
Sun-Diamond aligns closely with the campaign finance cases. It suggests a nar-
row approach to corruption, rejecting the “reservoir of goodwill” concept
and emphasizing the importance of specificity of official action when
attempts to influence are criminalized.281 McCormick is a form of campaign
finance case. Its explicitness requirement reflects the post-Buckley emphases
on the quid pro quo and on protecting the political process, as well as the
recognition that it will involve a multiplicity of interactions.282 Skilling’s
impact and significance are uncertain.283 Evans emerges as the key ordinary
corruption case. It has the potential to introduce great breadth to the closely
related areas of extortion and bribery.284 Overall, the ordinary corruption
cases demonstrate some analytical kinship with the campaign finance cases,
although they do not cite them. The harder question is whether, with the
exception of Evans, they support the notion of a possible unified judicial
approach to corruption.
Academic writing on corruption varies widely in its approach to this
issue. Some commentators acknowledge the existence of the two fields and
choose to deal with only one.285 Some treat one field as exemplifying the
concept of corruption while seemingly oblivious to the existence of the
other.286 Others suggest possible relationships between the two.287 I wish to
discuss two contributions to the last group, those of Jacob Eisler and Zephyr
Teachout. Both see the relationship between the two fields clearly and sug-
gest a degree of convergence.
280 See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1450 (2014) (plurality opinion)
(“Spending large sums of money in connection with elections, but not in connection with
an effort to control the exercise of an officeholder’s official duties, does not give rise to
such quid pro quo corruption.”).
281 United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 405 (1999).
282 See McCormick, 500 U.S. at 258 (“[P]roperty is extorted in violation of the Hobbs Act
only when an official asserts that his official conduct will be controlled by the terms of the
promise or undertaking.”); see also id. at 273 (explaining the quid quo pro nature of the
Hobbs Act’s “forbidden zone of conduct”).
283 See Griffin, supra note 29, at 1838–42 (addressing implications of Skilling).
284 Prior to Evans, Professor Lowenstein had noted the flexibility inherent in the crime
of bribery. See Lowenstein, supra note 23, at 819–24 (analyzing whether an agreement is
required for a bribe to occur).
285 See, e.g., Welling, supra note 23, at 421 n.15 (foregoing discussion of campaign
contributions).
286 See Issacharoff, supra note 93 (analyzing campaign finance law).
287 See, e.g., George D. Brown, The Gratuities Debate and Campaign Reform: How Strong Is
the Link?, 52 WAYNE L. REV. 1371, 1401 (2006).
Eisler’s The Unspoken Institutional Battle over Anticorruption: Citizens

United, Honest Services, and the Legislative-Judicial Divide288 is a thorough
inquiry into post-Buckley developments in both fields. Although one may dis-
agree with his analysis of ordinary corruption, the article is a comprehensive
and significant contribution. Eisler begins by noting a “striking pattern”289
of parallel analysis in Citizens United and Skilling, which “can be framed as a
clash between differing schools of anticorruption.”290 He divides the schools
between “competitive and deliberative” approaches to corruption.291 The
Court is clearly in the competitive camp—its “rulings have established a con-
sistently and uncompromisingly competitive regime.”292 Congress appar-
ently wavers between the two.293 The competitive approach presumes a
democracy that is “self-interested and adversarial.”294 “Deliberative democ-
racy emphasizes discourse and cooperation, rather than formal selection
processes . . . .”295 Eisler presents the difference as resulting from “a lively
debate in democratic theory.”296 It is clear that this debate reflects differing
views of the electoral process. Whether it can be translated into analyzing
methods of dealing with ordinary corruption is far from clear.
Eisler views deliberative anticorruption measures as focused on motive,
while competitive anticorruption seeks bright-line rules rather than “subtle
normative assessments.”297 The framework bogs down a bit at the start
because Eisler admits that each approach has “ultimately normative roots.”298
He also admits that either can lead to prophylactic statutes and that “[m]any
corruption laws integrate attributes of deliberative and competitive anticor-
ruption.”299 It is also hard to follow the thesis that deliberative anticorrup-
tion measures, which follow the rigid constraints of the criminal law, can lead
to “collective discourse,”300 or “subtle normative assessments of leaders’
motives or probing the relationship between ethics and public service.”301
Nonetheless, Eisler makes an important point in arguing that the competitive
approach leads to a preference for bright-line rules that avoid the possibility
of any such inquiry.302
For purposes of simplification, let us label the two approaches as “broad”
and “narrow.” As Eisler demonstrates, they prove useful in examining the
288 Eisler, supra note 183, at 366.

289 Id. at 365.
290 Id. at 367.
291 Id.
292 Id.
293 Id.
294 Id.
295 Id.
296 Id. at 368.
297 Id. at 381.
298 Id.
299 Id. at 384.
300 Id. at 380.
301 Id. at 381.
302 Id. at 381–82.
two bodies of case law—campaign finance and ordinary corruption—dis-

cussed in this Article. He views the campaign reform cases as generally
reflecting a narrow (competitive) approach through emphasis on a relatively
specific concept of quid pro quo corruption.303 McConnell was a brief turn
toward a broad (deliberative) approach, “specifically approving of measures
that promoted public-minded behavior and purity of the campaign atmos-
phere.”304 Citizens United was a return to form: “The Court . . . articulated its
most narrowly imagined theory of competitive corruption.”305
This is a helpful way of looking at the campaign finance cases. Eisler
then turns to what this Article terms ordinary corruption: “[O]fficial action
by a governmental figure taken on account of an illicitly private benefit.”306
Although he suggests there is a less cohesive narrative in this field,307 he ends
up positing a “consistently competitive nature of the Court’s underlying the-
ory.”308 He begins by focusing on honest services. As noted, the doctrine
had first developed in the lower federal courts, based on the concept of
fraud, a development that the Court reversed in McNally v. United States.309
Congress overturned McNally, thus ensuring that “honest services would
remain a fruitful deliberative forum for norm-assessment and promotion of
public-regardingness.”310 Skilling, of course, narrowed § 1346, the legislation
that had overturned McNally.311 Eisler presents Skilling as a victory for the
competitive view of anticorruption but admits that it rests largely on due pro-
cess concerns.312 McCormick, Evans, and Sun-Diamond are presented as exam-
ples of “fairly narrow black-letter questions,”313 which nonetheless mirror the
Court’s position on “politics” as “openly expressed in Citizens United.”314
There are several general objections that must be considered before
addressing the individual cases. The first is whether, except for issues of cam-
paign contributions, they do address “politics” despite the presence of
numerous interactions between citizens and officials. The term belongs in
the electoral context, the source of Eisler’s framework. But the field of ordi-
nary corruption embraces different concerns. The administration of the laws
is guided by different norms than the making of them. Also, it is important
303 Id. at 397.

304 Id. at 404.
305 Id. at 408.
306 Id. at 410.
307 Id. at 429–30. Eisler indicates that it is difficult to make generalizations but seems
to read the ordinary corruption cases as tilting toward the competitive view. He does note
that “Evans’s contrary holding in the context of such a similar fact pattern complicates any
conclusion drawn from McCormick.” Id. at 429. My analysis leads to the conclusion that
Evans is the most important of the ordinary corruption cases.
308 Id. at 412.
309 483 U.S. 350, 359–60 (1987); see supra text accompanying notes 210–24.
310 Eisler, supra note 183, at 419–20.
311 Skilling v. United States, 561 U.S. 358, 412 (2010).
313 Id. at 423–24.
314 Id.
to remember the divisions within the Court when analyzing cases and draw-
ing lessons from them. The campaign finance cases reflect a deep 5-4 divi-
sion. It was reflected in McCutcheon, and is the flip side of McConnell. If one
vote changes, the Court’s position will be radically different from what it is
today. Suggestions of a monolithic approach might need this qualification.
Finally, it is important to consider developments in the lower courts, particu-
larly the extensive growth of a broad approach to bribery and extortion based
on Evans.
As for the individual decisions, McCormick can be limited to a dispute
over how to treat campaign contributions. It belongs on the electoral side of
the ledger. Skilling did reduce the scope of honest service prosecutions, but
it kept the honest services statute in place, over strong disagreement by Jus-
tice Scalia, whom Eisler presents as an advocate of the competitive view.315
Justice Ginsburg, who wrote the majority opinion in Skilling and dissented in
Citizens United, almost certainly is not. Thus one could just as easily conclude
that the deliberative side won, even if only a partial victory.
That leaves Sun-Diamond and Evans. I concede that the former is an
example of the narrow approach to corruption. Sun-Diamond might fit under
the competitive label, drawn to encompass appointed officials. However, it
involved a little-known statute, and, as the next Section demonstrates,316 has
had little generative force. Moreover, it was a unanimous decision. Surely,
the group of “deliberative” Justices would not have let Justice Scalia slip by
them a major shift in the Court’s approach to anticorruption laws. Eisler
devotes scant space to Evans and regards it as insignificant—“a narrow recon-
struction of a particular term in the context of a single statute.”317 However,
it may be the most significant of the ordinary corruption cases. It is certainly
the broadest. To the extent the Court has shown support for a strict applica-
tion of the concept of quid pro quo, the result in Evans cuts the other way.
Eisler stops short of propounding a grand unifying theory, describing
the article as “a modest descriptive claim.”318 But it is replete with assertions
that the Court has espoused a “competitive anticorruption regime.”319 He is
ambivalent about whether this regime is derivative of an underlying prefer-
ence for competitive politics, or whether “competitive anticorruption”320 is a
concept of equal hierarchical rank. I find the article enormously provocative
and helpful. At the same time, I think it demonstrates the questionable util-
ity of convergence in drawing on one body of anticorruption laws to explain
the other.
315 Id. at 420–23.

316 See infra text accompanying notes 373–80.
318 Id. at 447.
319 Id. at 365, 398, 429, 430.
320 Id. at 380–81.
Zephyr Teachout’s recent book, Corruption in America,321 also provides

support for looking at corruption as a unified concept in both the electoral
and non-electoral contexts. She presents the “anticorruption principle” as an
important underlying principle in American public law, of almost constitu-
tional importance.322 Teachout traces the principle’s manifestation through-
out American history both in prosecuting what I refer to as ordinary
corruption and in measures to preserve the integrity of the electoral system.
Although she sees the distinction between the two,323 her references to “the
law of corruption”324 and “corruption law”325 suggest that she views them as
closely related at a conceptual level. Moreover, they are aimed at the same
evil, although she clearly views the electoral context as more important.326
Her discussion of Supreme Court cases also indicates the possibility of a
unified view. Teachout presents Sun-Diamond as a “little-noticed case that
foreshadowed the Supreme Court’s political theory in Citizens United.”327 Jus-
tice Scalia’s decision in a case where gratuities appeared to have been given
in order to build a reservoir of goodwill reflects a “deep logic of politics.”328
Professor Teachout strongly rejects this logic, finding it totally at odds with
the anticorruption principle and with the framers’ strong suspicion of
gifts.329 She finds the decision symptomatic of a general approach. “If you
read the case as political theory, instead of statutory interpretation, the Court
suggests that using money to influence power through gifts is both inevitable
and not troubling. In so doing, it set the table for the Court’s major corrup-
tion decision in Citizens United.”330
Professor Teachout’s treatment of the honest services doctrine is some-
what puzzling. She views corruption as a grand-scale concept that should not
be reduced solely to criminal laws.331 At the same time, she recognizes that
these laws have played an important role in combating it, working hand in
hand with laws regulating elections.332 She devotes several pages to the pre-
321 TEACHOUT, supra note 1. Professor Teachout’s work has generated considerable
interest. See, e.g., Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments
Clause: A Reply to Professor Zephyr Teachout, 107 NW. U. L. REV. COLLOQUY 180 (2013) (debat-
ing constitutionality of campaign finance law). For a response by Professor Teachout, see
Zephyr Teachout, Constitutional Purpose and the Anti-Corruption Principle, 108 NW. U. L. REV.
ONLINE 200 (2014) (same).
322 TEACHOUT, supra note 1, at 204, 211.
323 See, e.g., id. at 183–94 (describing criminal prosecutions and campaign finance law
as “two kinds of sticks”).
324 Id. at 130.
325 Id. at 175.
326 See Cole supra note 180 (“Teachout’s principal target is the Supreme Court, and in
particular the unduly narrow understanding of corruption that has come to dominate its
campaign finance jurisprudence.”).
327 TEACHOUT, supra note 1, at 227.
328 Id. at 228.
329 Id. at 228–29.
330 Id. at 229.
331 Id. at 183–94.
332 Id.
McNally honest services cases and obviously views them as an important step
in the fight against corruption.333 However, Teachout does not discuss the
fact that McNally overruled these cases and that Congress, in turn, overruled
McNally. Most puzzling is the absence of any reference to Skilling in her anal-
ysis.334 A discussion of honest services without Skilling is a lot like Hamlet
without the Prince. As Eisler emphasizes, that case can be read as a parallel
to Citizens United.335
Teachout is not unaware of recent lower federal court developments, as
indicated by two footnote references to the broad approach to quid pro quo
discussed in the next Part.336 McCormick is analyzed at some length. Profes-
sor Teachout sees it as reflecting the same views of the political process as
Citizens United.337 However, it is possible that she does not appreciate the
significance of Evans and the role it has played in ordinary corruption. She
gives the case a paragraph and ends up dismissing it as “confusing.”338
Despite its drawbacks, Teachout’s analysis of the anticorruption principle,
particularly its historical dimensions, provides helpful background for under-
standing current developments. She presents Citizens United as a fundamen-
tal departure from that history.339 She states that the majority opinion
“comprehensively redefined corruption, and in so doing, redefined the rules
governing political life in the United States.”340 This language suggests con-
vergence. Like Eisler’s work, however, I think the book leaves unresolved the
question of the relationship between Citizens United and ordinary corruption,
as well as the broader question of whether it is useful to treat the two contexts
as a unified whole.
III. THE ANTITHESIS OF CITIZENS UNITED: ORDINARY CORRUPTION AND THE

STREAM-OF-BENEFITS THEORY
This Article began with the question whether Citizens United would have
generative force outside the electoral context.341 The case appears to
endorse a free-wheeling political system in which contributions and support
333 Id. at 195–99.

334 Professor Teachout’s discussion of the honest services cases conveys the impression
that this line of jurisprudence is still in existence, without reference to the Skilling decision.
The last federal case cited in this discussion was decided in 1975.
336 TEACHOUT, supra note 1, at 344 nn.18–19 (citing United States v. Abbey, 560 F.3d
513 (6th Cir. 2009); United States v. Rosen, 716 F.3d. 691 (2d Cir. 2013)).
337 Id. at 225–26.
338 Id. at 225.
339 Id. at 229–45.
340 Id. at 232. To her, a fundamental flaw in the majority’s approach is “the replace-
ment of corruption with a quid pro quo formulation.” Id. at 237. However, as this Article
contends, the quid pro quo requirement need not lead to a permissive approach to
corruption.
341 See supra text accompanying notes 9–21.
yield influence and access.342 Each side marshals its forces, and the result is
a battle that produces winners and losers. In terms of what one gets from
elected representatives, it helps to have been with the winners. One may
label this approach “competitive,”343 the counterrevolution in government
ethics,344 “a triumph of the libertarian over the egalitarian vision of free
speech,”345 or simply a “crabbed view,” in Justice Stevens’ words,346 of cor-
ruption. A narrow view of corruption may make sense in the electoral con-
text—“politics ain’t beanbag,” in the words of Mr. Dooley347—but it seems
seriously out of place in the context of application of the laws. Here, con-
cepts of equality and neutrality reign, calling for a broad view of corruption.
For at least the last decade,348 the enforcement of ordinary anticorrup-
tion laws has included the development of a theory of criminal liability totally
at odds with the Citizens United vision: the “stream-of-benefits” theory at the
heart of numerous anticorruption prosecutions. These prosecutions are pri-
marily based on the Hobbs Act,349 the federal program bribery act,350 and
mail351 and wire352 fraud statutes. The latter two statutes incorporate the
concept of honest services fraud at issue in Skilling.353 An example of the
concept is United States v. McDonough.354 Payments were made that benefited
an influential legislator. He used his influence to assist the payors. The First
Circuit stated that “[a] reasonable jury could have concluded that the [pay-
ments] constituted a stream of payments intended for [the legislator] in
exchange for [his] providing benefits to [the payors].”355 Many courts have
342 Citizens United v. FEC, 558 U.S. 310, 359 (2010) (quoting McConnell v. FEC, 540
U.S. 93, 297 (2003) (Kennedy, J., concurring), overruled by id. at 365–66).
343 Eisler, supra note 183, at 367–72.
344 Brown, supra note 48, at 811.
345 Sullivan, supra note 116, at 145.
346 Citizens United, 558 U.S. at 447 (Stevens, J., concurring in part and dissenting in
part).
347 WILLIAM SAFIRE, SAFIRE’S POLITICAL DICTIONARY 45–46 (Oxford Univ. Press 2008)
(1968).
348 The current line of cases can be traced back to United States v. Ganim, which the
Second Circuit decided in 2007. See 510 F.3d 134 (2d Cir. 2007). However, the concept
can be found as early as 1998 in United States v. Jennings. See 160 F.3d. 1006, 1014 (4th Cir.
1998) (“The quid pro quo requirement is satisfied so long as the evidence shows a ‘course
of conduct of favors and gifts flowing to a public official in exchange for a pattern of official
actions favorable to the donor.’” (quoting United States v. Arthur, 544 F.2d 730, 734 (4th
Cir. 1976))).
349 18 U.S.C. § 1951 (2012).
350 Id. § 666.
351 Id. § 1341.
352 Id. § 1343.
353 See id. § 1346 (including “honest services” in the definition of “scheme or artifice”
for mail and wire fraud).
354 727 F.3d 143 (1st Cir. 2013).
355 Id. at 153.
adopted the stream-of-benefits analysis, either explicitly or implicitly.356
356 See, e.g., United States v. Ciavarella, 716 F.3d 705, 730 (3d Cir. 2013) (“[A] bribe
may come in the form of a ‘stream of benefits.’” (quoting United States v. Wright, 665 F.3d
560, 568 (3d Cir. 2012))); Ryan v. United States, 688 F.3d 845, 852 (7th Cir. 2012) (“[T]he
Government presented a valid ‘stream of benefits,’ ‘retainer,’ or ‘course of conduct’ brib-
ery theory.”); United States v. Andrews, 681 F.3d 509, 527 (3d Cir. 2012) (“A bribery theory
under § 1346 ‘requires a quid quo pro.’” (quoting Wright, 665 F.3d at 567)); Wright, 665 F.3d
at 568 (“The bribery theory does not require that each quid, or item of value, be linked to a
specific quo, or official act. Rather, a bribe may come in the form of a ‘stream of benefits.’”
(quoting United States v. Bryant, 655 F.3d 232, 240–41 (3d Cir. 2011))), remanded to 936 F.
Supp. 2d 538 (E.D. Pa. 2013); Bryant, 655 F.3d at 241–42, 244 (“[A] quid pro quo may come
in the form of a ‘stream of benefits.’”); United States v. Donna, 366 F. App’x 441, 450 (3d
Cir. 2010) (“[T]he official does not have to promise to perform a specific action in
exchange for a specific gift; instead, the official can accept a ‘stream of benefits’ in
exchange for one or more official acts as though the official is on a retainer.” (quoting
United States v. Kemp, 500 F.3d 257, 282 (3d Cir. 2007))); United States v. Chartock, 283
F. App’x 948, 956 (3d Cir. 2008) (holding no error in district court’s stream-of-benefits
instruction of bribery where “a person gave an official a stream of benefits in implicit
exchange for one or more official acts”); United States v. Mariano, 316 F. App’x 99, 102
(3d Cir. 2008) (“[B]ribery . . . extends to agreements to provide a ‘stream of benefits . . . .’”
(quoting Kemp, 500 F.3d at 281)); Kemp, 500 F.3d at 282 (“[C]onvict[ion] upon finding a
‘stream of benefits’ was legally correct.”); United States v. Willis, No. 2014-28, 2015 WL
3747112, at *9 (D.V.I. June 15, 2015) (holding that the statute is satisfied when “the official
. . . accept[s] a ‘stream of benefits’” (quoting Donna, 366 F. App’x at 450)); United States v.
Mosberg, 866 F. Supp. 2d 275, 290, 313 (D.N.J. 2011) (holding an indictment “sufficiently
alleges a quid pro quo bribery” when it includes allegations that the defendant gave a
“stream of benefits ‘to influence and reward’”).
Other courts have clearly adopted the stream-of-benefits concept without using the
explicit phrase. See, e.g., United States v. Mays, 558 F. App’x 583, 587 (6th Cir. 2014) (“It is
sufficient if the public official understood that he or she was expected to exercise some
influence on the payor’s behalf as opportunities arose.” (quoting United States v. Terry,
707 F.3d 607, 612 (6th Cir. 2013))); McDonough, 727 F.3d at 152–54 (same (quoting Terry,
707 F.3d at 612; United States v. Ganim, 510 F.3d 134, 148 (2d Cir. 2007))); United States
v. Rosen, 716 F.3d 691, 701 (2d Cir. 2013) (accepting an “as opportunities arise” quid pro
quo agreement); Terry, 707 F.3d at 612 (“[I]t is sufficient if the public official understood
that he or she was expected to exercise some influence on the payor’s behalf as opportuni-
ties arose.” (quoting United States v. Abbey, 560 F.3d 513, 518 (6th Cir. 2009))); United
States v. Jefferson, 674 F.3d 332, 359 (4th Cir. 2012) (finding it unnecessary “to link every
dollar paid . . . to a specific meeting, letter, trip, or other action by Jefferson to fulfill his
end of a corrupt bargain” and that the court did not “read the bribery statute or Sun-
Diamond to compel any such link”); United States v. Redzic, 627 F.3d 683, 692 (8th Cir.
2010) (“It was not necessary . . . to link any particular payment to any particular action
undertaken . . . .”); United States v. McNair, 605 F.3d 1152, 1186 (11th Cir. 2010) (citing
Ganim, 510 F.3d at 141–47) (“[Section] 666 does not require a specific quid pro quo . . . .”);
Abbey, 560 F.3d at 520–21 (“[Section 666] does not require the government to prove that
Abbey contemplated a specific act when he received the bribe . . . .”); United States v.
Kincaid-Chauncey, 556 F.3d 923, 943, 945-46 (9th Cir. 2009) (“Nor need the implicit quid
pro quo concern a specific official act.”), abrogated on other grounds by Skilling v. United
States, 561 U.S. 358 (2010); United States v. Harvey, 532 F.3d 326, 335 (4th Cir. 2008)
(quoting United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976)); Ganim, 510 F.3d at
145, 148–49 (“[T]o establish the quid pro quo essential to proving bribery, ‘the govern-
ment need not show that the defendant intended for his payments to be tied to specific
Obviously, cases differ. The identity and interests of the donor are known.
There may even be an explicit official action. However, the approach clearly
dilutes the quid pro quo requirement.357 Cases that use terms like
“retainer,”358 “as opportunities arose,”359 or “as needed”360 are the strongest
examples of moving away from explicitness. Indeed, the approach frequently
looks a lot like a gratuity given for the purpose of building a reservoir of good
will, with an implied commitment that the reservoir will lead to actions that
official acts . . . .” (quoting United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)));
United States v. Quinn, 359 F.3d 666, 673 (4th Cir. 2004) (citing Jennings, 160 F.3d at
1014); Jennings, 160 F.3d at 1014 (“Bribery requires the intent to effect an exchange of
money (or gifts) for specific official action (or inaction), but each payment need not be
correlated with a specific official act. Rather, it is sufficient to show that the payor
intended for each payment to induce the official to adopt a specific course of action. . . .
The quid pro quo requirement is satisfied so long as the evidence shows a ‘course of con-
duct of favors and gifts flowing to a public official in exchange for a pattern of official actions
favorable to the donor.’ . . . [A]ll that must be shown is that payments were made with the
intent of securing a specific type of official action or favor in return.” (citations omitted)
(citing Arthur, 544 F.2d at 734)).
357 Professor Alschuler, a critic of the concept, states that “[a]lthough the ‘stream of
benefits’ metaphor can be compatible with the quid pro quo requirement, it invites slippage
from this requirement to a ‘one hand washes the other’ or ‘favoritism’ standard.” Albert
W. Alschuler, Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse 18 (Chi.
Pub. Law & Legal Theory Working Paper No. 502, 2015).
358 Ryan, 688 F.3d at 852; Kincaid-Chauncey, 556 F.3d at 943 n.15 (“It is sufficient, for
example, if the evidence establishes that the government official has been put on
‘retainer’—that is, that the government official has received payments or other items of
value with the understanding that when the payor comes calling, the government official
will do whatever is asked.”).
359 McDonough, 727 F.3d at 153, 160 (quoting Terry, 707 F.3d at 612); Rosen, 716 F.3d at
700 (“The illegality of an ‘as opportunities arise’ quid pro quo agreement has been estab-
lished in this Circuit for more than two decades.”); Terry, 707 F.3d at 612 (quoting Abbey,
560 F.3d at 518) (finding “as opportunities arose” to be a clear principle); Bryant, 655 F.3d
at 241 (stating that an official’s services may be provided “whenever the opportunity
presents itself, the official will take specific action on the payor’s behalf”); McNair, 605 F.3d
at 1189 (quoting Ganim, 510 F.3d at 142); Abbey, 560 F.3d at 518 (“[I]t is sufficient if the
public official understood that he or she was expected to exercise some influence on the
payor’s behalf as opportunities arose.”); Ganim, 510 F.3d at 142, 144 (“[T]he requisite quid
pro quo . . . may be satisfied upon a showing that a government official received a benefit
in exchange for his promise to perform official acts or to perform such acts as the opportu-
nities arise.”); United States v. McDonnell, 64 F. Supp. 3d 783, 787 (E.D. Va. 2014) (alleg-
ing defendants accepted things of value “in exchange for . . . performing official actions on
an as-needed basis, as opportunities arose”).
360 Mays, 558 F. App’x at 587 (quoting United States v. Whitfield, 590 F.3d 325, 350
(5th Cir. 2009)); Jefferson, 674 F.3d at 358 (4th Cir. 2012) (upholding “performing official
acts on an as-needed basis” jury instruction); Bryant, 655 F.3d at 241 (upholding jury
instruction that “payments may be made with the intent to retain the official’s services on
an ‘as needed’ basis”); Whitfield, 590 F.3d at 350 (quoting Jennings, 160 F.3d at 1014);
Jennings, 160 F.3d at 1014 (“[P]ayments may be made with the intent to retain the official’s
services on an ‘as needed’ basis.”).
benefit the giver.361 A form of dependency can develop similar to that iden-
tified by Professor Lessig in the electoral context.362
The stream-of-benefits concept helps focus on the uncertainty of the
“quo” requirement. The tripartite formulation “quid pro quo” suggests three
things: a transfer (the quid); an agreement, explicit or implicit (the pro);
and an act (the quo). However, the federal bribery statute indicates that the
crime is complete when the official has corruptly accepted something of
value for “being influenced in the performance of any official act.”363 The
quo is subsumed in the agreement. Cases are replete with statements to the
effect that it has long been established that the crime of bribery is complete
upon the acceptance of a bribe, regardless of whether or not improper
action is thereafter taken.364 Thus the lack of specificity of the quo in the
stream-of-benefits analyses fits comfortably within traditional bribery law.
Prosecutors may well introduce evidence of official acts taken. This might be
done to show a particularly strong case, or to show the existence or scope of
the agreement. The key point is that the defendant is not being prosecuted
for the acts taken.365
Application of the stream-of-benefits analysis has to be measured against
one of the three narrow ordinary corruption cases discussed above: McCor-
mick, Sun-Diamond, or Skilling. McCormick is often cited for the proposition
that a quid pro quo must be explicit in the campaign contribution con-
text.366 In most circuits, a two-tiered definition of quid pro quo has
361 But see United States v. O’Brien, 994 F. Supp. 2d 167, 187 (D. Mass. 2014). The
court cited several stream-of-benefits cases for the proposition that “[t]he quid pro quo
requirement is satisfied so long as the evidence shows a ‘course of conduct of favors and
gifts flowing to a public official in exchange for a pattern of official actions favorable to the
donor.’” Id. (quoting Jennings, 160 F.3d at 1014). The court noted, however, that “it
appears clear that an exchange must be contemplated, and that mere proof of an intent to
cultivate a political relationship, or to express gratitude, without more, is insufficient.” Id.
at 188 (citing McDonough, 727 F.3d at 157). Not surprisingly, defense attorneys have criti-
cized the stream-of-benefits theory for its deviation from the quid pro quo requirement.
See, e.g., Jared B. Cohen, Note, The Commonwealth’s Right to “Honest Services”: Prosecuting
Public Corruption in Massachusetts, 93 B.U. L. REV. 201, 229 (2013).
362 See, e.g., LESSIG, supra note 73, at 233 (describing “dependence corruption”).
363 18 U.S.C. § 201(b)(ii)(A) (2012).
364 E.g. Howard v. United States, 345 F.2d 126 (1st Cir. 1965). In Evans, a Hobbs Act
case, the Supreme Court stated that performance of an “official act” is “not an element of
the offense.” 504 U.S. at 268.
365 As the court stated in Ganim, “so long as the jury finds that an official accepted gifts
in exchange for a promise to perform official acts for the giver, it need not find that the
specific act to be performed was identified at the time of the promise, nor need it link each
specific benefit to a single official act.” 510 F.3d at 147. Courts may nevertheless focus on
the official nature of the acts, even though it would seem that focus is not necessary.
366 E.g., United States v. Ellis, No. 94-6690, 1996 WL 394032, at *5 (4th Cir. July 16,
1996) (unpublished table decision); United States v. Blandford, 33 F.3d 685, 696 (6th Cir.
1994); United States v. Taylor, 993 F.2d 382, 385 (4th Cir. 1993) (citing McCormick v.
United States, 500 U.S. 257, 273 (1991)).
evolved.367 The key development is the virtual elimination outside of the

electoral context of any requirement of specificity as to the official act.
Given that it arose outside the electoral context, Sun-Diamond might be
most on point. Its facts represent a classic attempt to use transfers of things
of value to “build a reservoir of goodwill.”368 More importantly, its analysis
emphasizes the importance of a link between the transfer and a specific offi-
cial act.369 Defendants have repeatedly invoked Sun-Diamond for the proposi-
tion that the quid pro quo element of the extortion and bribery offenses
should be applied the same way, regardless of statutory language.370 Courts
have not been receptive to these arguments. One approach is to focus on the
fact that Sun-Diamond involved a different statute. The Second Circuit has
stated flatly that “[w]e do not agree that Sun-Diamond requires us to define
the crime of bribery narrowly. . . . Sun-Diamond . . . says nothing about brib-
ery . . . .”371 Other courts have reasoned that any general limiting principle
that might be extrapolated from Sun-Diamond is satisfied by the concept of
quid pro quo even if the future act is unspecified.372
An extensive discussion of the issue is found in the Second Circuit’s deci-
sion in United States v. Ganim.373 The defendant made the “common sense”
argument that it would be unreasonable to permit conviction of the more
serious crimes of bribery and extortion upon a “less exacting nexus” than for
gratuities.374 The court responded that Sun-Diamond arose under a different
statute, and found that the more serious bribery-related crimes were based
367 See, e.g., United States v. Garcia, 992 F.2d 409, 414 (2d Cir. 1993) (“Although the
McCormick Court had ruled that extortion under color of official right in circumstances
involving campaign contributions occurs ‘only if the payments are made in return for an
explicit promise or undertaking by the official to perform or not to perform an official
act,’ Evans modified this standard in non-campaign contribution cases by requiring that
the government show only ‘that a public official has obtained a payment to which he was
not entitled, knowing that the payment was made in return for official acts.’” (citation
omitted)); see generally supra note 279 (cases indicating a two-tiered definition of quid quo
pro).
368 United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 405 (1999).
369 Id. at 404–10.
370 See, e.g., United States v. Ring, 706 F.3d 460, 466 (D.C. Cir. 2013); United States v.
Jefferson, 674 F.3d 332, 353 (4th Cir. 2012), cert. denied, 133 S. Ct. 648 (2012); United
States v. Boender, 649 F.3d 650, 654–55 (7th Cir. 2011); United States v. McNair, 605 F.3d
1152, 1190–92 (11th Cir. 2010); United States v. O’Brien, 994 F. Supp. 2d 167, 186 (D.
Mass. 2014). Defendants have often attempted to use Sun-Diamond to contest convictions
using a stream-of-benefits theory. A number of circuits have rejected arguments by defend-
ants to extend Sun-Diamond beyond 18 U.S.C. § 201 and require a direct link between the
quid and the quo under other anticorruption statutes. See, e.g., United States v. Garrido,
713 F.3d 985, 1000–01 (9th Cir. 2013); Jefferson, 674 F.3d at 358; Boender, 649 F.3d at
654–55; McNair, 605 F.3d at 1190–91; United States v. Abbey, 560 F.3d 513, 520–21 (6th
Cir. 2009); Ganim, 510 F.3d at 145.
371 United States v. Alfisi, 308 F.3d 144, 151 n.4 (2d Cir. 2002).
372 See United States v. Whitfield, 590 F.3d 325, 351–53 (5th Cir. 2009).
373 See Ganim, 510 F.3d at 141–49.
374 Id. at 146.
on intent to influence official action, whether specifically identified or

not.375 Thus, these offenses do not require Sun-Diamond’s “limiting princi-
ple.”376 Moreover, the court was emphatic in rejecting any requirement of
linkage between payments and specific acts in Hobbs Act cases.377
Attempts to invoke Skilling as somehow undermining the stream of bene-
fits theory have been equally unsuccessful.378 Courts of appeals have held
that the theory survived Skilling.379 This is hardly surprising, since Skilling
retained bribery offenses as part of honest services, and the stream-of-benefits
theory is applied to bribery and the related offense of extortion. As the
Third Circuit put it, “Skilling did not eliminate from the definition of honest
services fraud any particular type of bribery.”380 Legislation to overturn Skill-
ing was once considered,381 but may be unnecessary outside the area of
undisclosed conflicts of interest,382 given the vigor with which courts apply
what is left of the statute.
The stream-of-benefits cases show a particularly aggressive attitude
toward corruption on the part of the lower courts. They have taken Evans
and run with it while distinguishing the McCormick-Sun-Diamond line of
cases.383 The Second Circuit’s language in Ganim is particularly instructive.
Not to reach ongoing schemes could, in the court’s view, “subvert the ends of
justice.”384 For the court, “a reading of the statute that excluded such
schemes would legalize some of the most pervasive and entrenched corrup-
tion, and cannot be what Congress intended.”385 In effect, the courts have
developed an approach that treats campaign contributions in the electoral
375 Id. at 146–47. Some courts have stated that the Supreme Court in Sun-Diamond was
motivated in part by “a need to distinguish legal gratuities (given to curry favor because of
an official’s position) from illegal gratuities (given because of a specific act).” Id. at 146,
quoted in United States v. Abbey, 560 F.3d 513, 521 (6th Cir. 2009).
376 Id. at 146.
377 Id. at 146–147.
378 See Griffin, supra note 29, at 1838–42 (discussing “[p]oints of [e]ntry [p]ost-Skill-
ing”). As Professor Griffin points out, Skilling cited two streams-of-benefits cases. Id. at
1840 & n.122.
379 See, e.g., United States v. Bahel, 662 F.3d 610, 631–32 (2d Cir. 2011); United States v.
Bryant, 655 F.3d 232, 245 (3d Cir. 2011); United States v. Urciuoli, 613 F.3d 11, 17 (1st Cir.
2010).
380 Bryant, 655 F.3d. at 245; see Cohen, supra note 361, at 224–29 (suggesting that Skill-
ing provides for a liberal interpretation of bribes and kickbacks).
381 See Honest Services Restoration Act, S. 3854, 111th Cong. § 1346A(a) (2010)
(prohibiting undisclosed public and private self-dealing).
382 See Cohen, supra note 361, at 230–33 (questioning the need for legislation); Griffin,
supra note 29, at 1833.
383 See, e.g., United States v. Salahuddin, 765 F.3d 329, 343–44, 343 n.9 (3d Cir. 2014).
384 United States v. Ganim, 510 F.3d 134, 147 (2d Cir. 2007).
385 Id. In Urciuoli, the First Circuit compared a bribe for a legislator’s potential use of
influence over legislation in committee to “paying outright for legislative votes.” United
States v. Urciuoli, 613 F.3d 11, 16–17 (1st Cir. 2010). For the court, “both involve the
misuse of office.” Id. at 17.
context as presumptively valid, while direct transfers are presumptively inva-

lid outside of it.
If one sees the Supreme Court and Congress as sharply divided over how
to deal with corruption,386 one can hypothesize the likelihood of another
Skilling or McNally, prompted by the dilution of the quid pro quo concept.
In both cases, the lower courts had been quite aggressive in stretching federal
criminal legislation to reach a wide range of corrupt behavior. Pre-McNally,
the impetus came from the lower courts themselves, while pre-Skilling, broad
judicial discretion had the direct blessing of Congress through § 1346.387 In
both cases, the Supreme Court stepped in forcefully to restrict the lower
courts. In the present context, the Hobbs Act, for example, might be
attacked as a potentially vague statute whose unduly broad construction post-
Evans needs correction.388 A stream-of-benefits case might theoretically arise
from the lower courts in a situation in which nobody had done much of
anything, the corrupt scheme consisted of unspecified future benefits in
return for unspecified future action, and extremely broad jury instructions
were upheld on appeal.
Such a development is possible but highly unlikely. In the cases that
have been decided to date, there has been action on both sides in terms of
the quid, the pro, and the quo. A good example is the recent Third Circuit
case of United States v. Bencivengo.389 It involved payment to a mayor to use
his influence over a school board member, even though he lacked actual
power.390 There was certainly a quid (a payment of $5,000), a pro, and a quo
(an agreement and an attempt to influence the member).391 The Third Cir-
cuit held that lack of power did not prevent the agreement from being ille-
gal, and joined other circuits that had “explicitly held that the mere
agreement to exercise influence is sufficient to sustain a conviction for extor-
tion under the Hobbs Act.”392 In United States v. McDonough, the First Circuit
not only endorsed the notion of implicit agreements but upheld a jury
instruction that the government’s burden with respect to an honest services
charge is met by showing “a scheme to make a series of payments in
exchange for [the official] performing official actions benefiting [the
payors] as opportunities arose or when [the official] was called upon to do
386 See Eisler, supra note 183, at 365–68 (characterizing apparent differences between
Congress’s and the Supreme Court’s views on corruption as a “clash between differing
schools of anticorruption”).
387 See 18 U.S.C. § 1346 (2012).
388 See United States v. Rosen, 716 F.3d 691, 699–700 (2d Cir. 2013) (rejecting vague-
ness attack on an “as opportunities arise” theory of bribery prosecution); see also Bond v.
United States, 134 S. Ct. 2077, 2093 (2014) (construing a federal criminal statute narrowly
to avoid vagueness issues).
389 749 F.3d 205 (3d Cir. 2014).
390 Id. at 207–09.
391 Id.
392 Id. at 212.
so.”393 However, payments had been made, and the official had taken
action.394 The same is true in other cases, partly because showing an implicit
agreement would still, under the Hobbs Act, require acceptance of some-
thing by the official. Moreover, prosecutors may prefer to bring a case based
on specific acts because less jury speculation about the agreement and what it
covered would be necessary.
Would the Supreme Court reverse a stream-of-benefits case that permit-
ted a nonspecific quo at the agreement stage, requiring instead a specific quo
at that stage and jury instructions that reflect this requirement? There are
reasons to think the Court might do so, especially in the case of a broad
statute like the Hobbs Act. It would not be necessary to overrule Evans. That
case focused on the degree of explicitness of the agreement, not the act,
although there was a specific official act in the factual background. The
Court might even accept the two-tier quid pro quo appearance that has
grown up in the wake of that case and McCormick. Outside the campaign
context, explicitness as to the agreement is not crucial to protect interactions
between voters and candidates. Even so, the Court might find that a require-
ment of specificity as to the quo is not a separable part of McCormick’s formu-
lation and is applicable across the board. Retaining it would ensure that quid
pro quo still has teeth in saving key anticorruption statutes from vagueness
challenges and would be in line with the Court’s general emphasis on quid
pro quo agreements as a core aspect of corruption. What the Court would be
doing would constitute a rejection of the lower courts’ extremely flexible
approach to the concept.395 As in Skilling, the vagueness issue has to be
taken seriously, given the inherent difficulties of formulating a precise defini-
tion of corruption.396
Federalism-based precepts of statutory construction might also play a key
role. The Court’s recent decision in Bond v. United States,397 is particularly
relevant. Central to the Court’s holding was the view “that it is appropriate to
refer to basic principles of federalism embodied in the Constitution to
resolve ambiguity in a federal statute.”398 Broad construction of anticorrup-
393 727 F.3d 143, 160 (1st Cir. 2013), cert. denied, 134 S. Ct. 1041 (2014); see also id. at
158–60.
394 Id. at 155 & n.3.
395 See Alschuler, supra note 357, at 24–25. Professor Alschuler states that “[a]lthough
the Supreme Court has reined in the lower federal courts as best it can, these courts have
construed anti-corruption measures expansively.” Id. at 24–25.
396 See, e.g., Mills & Weisberg, supra note 84, at 1388–89 (discussing the challenges of
defining corruption). Professor Griffin recognizes the difficulties of defining corruption
broadly but concludes that the combination of broad statutes and interstitial judicial law-
making is necessary in this context. See Griffin, supra note 29, at 1826–38 (detailing crimi-
nal and common law approaches to the meaning of corruption). The rule of lenity might
also be available as a means of curtailing the lower courts’ broad constructions of the rele-
vant statutes. The considerations in play seem similar to those that would arise in a vague-
ness analysis.
397 134 S. Ct. 2077 (2014).
398 Id. at 2090.
tion statutes “intrudes on the police power of the States”399 both by broaden-
ing federal criminal law and in dictating how states and localities shall be
governed. The latter point is not new,400 but it is worth noting that Justice
Scalia reiterated it in his Sorich opinion.401 Closely related to this critique is
the theme of the criminalization of politics, discussed below.402 Advocates of
this view have pointed to the conviction of former Virginia Governor Robert
McDonnell for violation of the Hobbs Act and for honest services wire fraud,
based on his extensive acceptance of a stream of gifts for alleged helpful
treatment of a businessman who wished to promote his products with the
state government.403 The governor made clear to numerous persons, includ-
ing state officials, his high regard for the donor and his products. However,
McDonnell may have stopped just short of bringing to bear any pressure to
advance the donor’s cause.404 The Fourth Circuit sustained the conviction
despite the defendant’s contentions that there was no official act on his part
and that the judge’s instructions were unduly broad in permitting the jury to
find official action.405 The court reasoned that the instructions were
“tethered” to the federal statutory definition of official action.406
The problem that courts face in honest services and Hobbs Act prosecu-
tions is that neither statute contains the term “official act,” but courts use it in
both instances in establishing a quo. In Skilling, the Supreme Court said that
the concept of honest services bribery would “draw[ ] content” from the fed-
eral bribery statute, including its definitional section, 18 U.S.C. § 201(a).407
399 Id. This language in Bond was not directed at anticorruption statutes, but at federal
criminal law generally.
400 See generally Brown, supra note 75, at 277–80 (addressing the intrusive effect of mail
fraud prosecutions).
denial of certiorari); see generally Evans v. United States, 504 U.S. 255, 290–94 (1992)
(Thomas, J., dissenting) (invoking federalism concerns to argue against broad federal
prosecution of corruption).
402 See Harvey Silverglate, Opinion, Politics as Usual Often Isn’t a Crime, BOS. GLOBE (May
6, 2015), https://www.bostonglobe.com/opinion/2015/05/06/politics-usual-often-isn-
crime/o2NyNsC0Fq5ZCq6H6pG51K/story.html. Silverglate references recent cases involv-
ing bribery convictions of politicians, including former Illinois Governor Rod Blagojevich’s
pending appeal in the Seventh Circuit. Id.
403 United States v. McDonnell, 792 F.3d 478 (4th Cir. 2015).
404 Robert McCartney, Fuzzy Federal Law Just Might Let McDonnells off the Hook, WASH.
POST, Jan. 29, 2015, at B1 McCartney states that McDonnell may have been “shrewd
enough to stay barely on the right side of the law by avoiding doing too much to help the
businessman who gave him the Rolex watch, Ferrari ride and other goodies.” Id.
405 Principal Brief of Defendant-Appellant Robert F. McDonnell at 24–59, McDonnell,
792 F.3d 478 (No. 15-4019).
406 McDonnell, 792 F.3d at 509.
407 Skilling v. United States, 561 U.S. 358, 412 (2010). The Hobbs Act is slightly more
helpful, referring to obtaining property “under color of official right.” 18 U.S.C. § 1951
(2012). Section 201(a)(3) provides that official act “means any decision or action on any
question, matter, cause, suit, proceeding or controversy, which may at any time be pend-
ing, or which may by law be brought before any public official, in such official’s official
capacity, or in such official’s place of trust or profit.” Id. § 201(a)(3).
As argued above, the key question should be whether the agreement, implicit
in the acceptance of the stream of benefits, covered future performance or
official acts. It is thus commonplace for courts to use the § 201 definition in
both contexts as part of a broader instruction.408 In McDonnell, the defen-
dant argued that the judge’s instructions stretched § 201(a) to include com-
monplace actions by public officials that, while “official acts” in some sense,
did not meet the technical requirements of § 201(a).409 While the nature of
the quo was the central issue in McDonnell’s challenge to the instructions, he
apparently accepted the notion of somewhat generalized benefits that the
stream-of-benefits theory incorporates.410 It would seem then that the
important question is whether McDonnell, in accepting the gifts, agreed to
perform official acts at some point. An ultimate reversal by the Supreme
Court could have serious negative implications for the stream-of-benefits the-
ory and its broad approach to quid pro quo.
Furthermore, one can find in McDonnell’s arguments an adumbration
of the convergence arguments discussed in this Article. For example, he
relies heavily on the Supreme Court’s decision in Sun-Diamond, even though
that case involved a different offense and payments to a federal, as opposed
to state, official.411 Perhaps most surprising is his reliance on Citizens United
for the proposition that “[i]ngratiation and access . . . are not corruption.”412
Campaign contributions were not involved in McDonnell, although he was an
elected official.
The amicus brief in McDonnell filed by a group of law professors is partic-
ularly striking. It comes close to adopting a theory of convergence. It cites
Citizens United frequently, discusses it at length, and states that “[i]f dicta in
Citizens United and McCutcheon define what is not corruption, then Skilling v.
United States, decided several months after Citizens United, defined what is.”413
While they plant the seed of convergence, however, the professors also pull
back by noting that McDonnell involved “gifts outside of an election.”414 The
case is a possible candidate for certiorari and reversal. In addition to the
question of official acts and its relevance, the case is rife with issues of federal-
ism, the rule of lenity, vagueness, and possible prosecutorial overreach.415
408 See, e.g., Brief of the United States at 64–65, 65 n.11, McDonnell, 792 F.3d 478 (No.
15-4019).
409 Reply Brief of Defendant-Appellant Robert F. McDonnell at 16–18, McDonnell, 792
F.3d 478 (No. 15-4019).
410 See id. at 33–34 (addressing the trial court’s jury instructions). But see Brief of the
United States at 66, McDonnell, 792 F.3d 478 (No. 15-4019) (same).
411 Reply Brief of Defendant-Appellant Robert F. McDonnell at 21, 30–31, 37, McDon-
nell, 792 F.3d 478 (No. 15-4019).
412 Id. at 1 (alteration in original) (citing Citizens United v. FEC, 558 U.S. 310, 360
(2010)).
413 Brief of Amici Curiae Law Professors in Support of Defendant-Appellant at 11,
McDonnell, 792 F.3d 478 (No. 15-4019).
414 Id. at 10.
415 See, e.g., id. at 14–16 (discussing due process, notice, and prosecutorial discretion).
There are also issues concerning the conduct of the trial, particularly the possibility of
The case is perhaps closer to a gratuity situation that might lead to official
action, rather than an instance that can be reached by honest services bribery
and the Hobbs Act. Still, it is hard to ignore the central fact of acceptance of
lavish transfers of value to an official from a donor with a potential interest in
state assistance and the implicity agreement in the acceptance. One way of
looking at the case is to ask whether, if the acts actually taken do not rise to
the level of “official,” that fact limits the scope of the agreement and places it
outside of bribery. Alternatively, a jury might find that they show an intent to
perform official acts in the future.
What the Supreme Court would do if it heard McDonnell is unpredict-
able. Any outcome that could be read as raising serious questions about this
stream-of-benefits approach would be unfortunate. The concept of bribery,
as explained, for example, in Sun-Diamond, points toward the broader quo.
Justice Scalia focused on the intent element of bribery416 and on the concept
of quid pro quo as capturing “a specific intent to give or receive something of
value in exchange for an official act.”417 It is this concept of sale of office that
makes bribery a crime. The First Circuit has stated that paying for influence
and paying for votes are similar, as “both involve the misuse of office.”418
Whether the sale involves a specific future act or some undetermined act
seems secondary. If anything, as the Second Circuit said in Ganim, the pros-
pect of multiple future acts increases the wrongfulness of the sale.419 The
sale of the office, not the form it takes, is key. As the Sixth Circuit said in an
analogous situation, an elected judge does not have the “First Amendment
right to sell a case so long as the buyer has not picked out which case at the
time of sale.”420
As for Citizens United, I think it does not negate what the lower courts are
doing in ordinary corruption cases. Quid pro quo corruption is possible in
the electoral context, but competing values of an open electoral process per-
haps justify a strict inquiry to protect that process. Once one leaves the elec-
toral context, however, a broader view of corruption is more in accord with
juror prejudice. The Fourth Circuit dealt briefly with these questions. Moreover, it largely
ignored the criminalization-of-politics cluster of issues. Obviously, the Fourth Circuit con-
sidered at length the question of official act. McDonnell, 792 F.3d at 505–13. In a some-
what unusual approach for an appellate court, the first part of the opinion is devoted to an
extensive recitation of the numerous gifts to McDonnell and his apparent efforts to help
the donor. Id. at 486–93. The court stated that the donor “lavished [McDonnell] with
shopping sprees, money, loans, golf outings, and vacations.” Id. at 519. The case could
also be seen as an example of federal overcriminalization. See, e.g., Yates v. United States,
135 S. Ct. 1074, 1100 (2015) (Kagan, J., dissenting) (citing dangers of “overcriminalization
and excessive punishment in the U.S. Code”). In the context of a critique of overcriminal-
ization, Silverglate has articulated a general, critical appraisal of the federal anticorruption
role. See HARVEY A. SILVERGLATE, THREE FELONIES A DAY xvi–xix, 3–44 (2d ed. 2011).
416 United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 403–07 (1999).
417 Id. at 404–05.
418 United States v. Urciuoli, 613 F.3d 11, 17 (1st Cir. 2010).
419 United States v. Ganim, 510 F.3d 134, 147 (2d Cir. 2007).
420 United States v. Terry, 707 F.3d 607, 614 (6th Cir. 2013).
the values of democratic governance. Admittedly, the lower courts are

stretching the concept of quid pro quo—particularly the quo—to make that
broader view a reality. I view this as sound public policy. A theory of conver-
gence, as opposed to the existence of two bodies of federal anticorruption
law—one in and one outside the electoral context—makes less sense.
IV. A BRIEF NOTE ON THE CRIMINALIZATION-OF-POLITICS CRITIQUE

Closely related to convergence theory is the “criminalization-of-politics”
critique. A good example of this critique in operation is the extensive con-
troversy generated by McDonnell. The case has become a lightning rod for
those who oppose, on various grounds, the current extensive federal role in
prosecuting state and local officials. According to noted defense attorney
Harvey Silverglate:
In an extraordinary demonstration of concern by numerous sectors of politi-
cal and civil society, friend-of-the-court briefs were filed in McDonnell’s sup-
port by former and current members of the Virginia General Assembly,
former Virginia attorneys general, law professors, and the National Associa-
tion of Criminal Defense Lawyers, which has been working with liberal and
conservative partners to rein in federal prosecutorial overreach. McDon-
nell’s supporters span the spectrum, from former US Attorney General John
Ashcroft to former president of the NAACP Benjamin Jealous.421
In addition to McDonnell, Silverglate cites current prosecutions involving
patronage by a Massachusetts official and attempted logrolling by former
Governor Rod Blagojevich of Illinois.422 To these cases might be added the
prosecution of former associates of Governor Chris Christie of New Jersey for
the political retaliation known as Bridgegate.423 For Silverglate, all such
cases present the question whether “the officials’ conduct constitutes [a fed-
eral crime] or merely common (even if sometimes tawdry) state politics.”424
McDonnell seems like a strange case in which to take a stand against the
“criminalization of politics.” The Governor and his family received extraordi-
nary largesse from a donor who wanted to do business with the state. How-
ever, McDonnell’s amici supporters are quite firm in advancing the
criminalization argument. His actions are described as “part and parcel of
the political process,”425 “routine political activity that public officials engage
in every day on behalf of their supporters,”426 “innocent conduct that occurs
on a routine basis,”427 and “actions that, in the main, are indistinguishable
421 SILVERGLATE, supra note 415.

422 Id.
423 See Indictment, United States v. Baroni, No. 15-193 (D.N.J. Apr. 23, 2015).
425 Brief of Amici Curiae Law Professors in Support of Defendant-Appellant, supra note
413, at 3.
426 Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Sup-
port of Appellant and Urging Reversal at 2, McDonnell, 792 F.3d 478 (No. 15-4019).
427 Brief of Former Federal Officials as Amici Curiae in Support of Defendant-Appellant
Robert F. McDonnell at 2–3, McDonnell, 792 F.3d 478 (No. 15-4019).
from actions that nearly every elected official in the United States takes
nearly every day.”428 As Silverglate suggests, critiques of this nature are not
limited to McDonnell.429 They are representative of what might be called the
critique of the criminalization of politics.
A provocative introduction to the subject is the Brookings Institution’s
study by Jonathan Rauch titled Political Realism: How Hacks, Machines, Big
Money, and Back-Room Deals can Strengthen American Democracy.430 Rauch sees
“a growing number of scholars and practitioners”431 embracing a form of
“political realism,” which “while coming in many flavors, is emerging as a
coherent school of analysis and offers new directions for a reform conversa-
tion which has run aground on outdated and unrealistic assumptions.”432
Central to Rauch’s concept of political realism is the view that the system
cannot produce effective governance without extensive interaction, dealmak-
ing, and compromise among public officials.433 For him, “[b]ack-scratching
and logrolling are signs of a healthy political system, not a corrupt one.”434
Rauch accepts the inevitability of a “war” on corruption.435 However, for
him, it is a “Tasmanian Devil of entrenched assumptions, the tail-chasing,
tree-munching, all-consuming, ever expanding, and by now entirely counter-
productive war on corruption.”436
The criminalization critique is not new. Most of its elements have long
been part of the American debate about what constitutes corruption and how
to deal with it. One can find ample academic and judicial discussions of such
aspects of the problem as federalism,437 overly broad statutes,438 and the
resultant prosecutorial discretion.439 Indeed, the general critique of anticor-
ruption initiatives has been around for some time.440
What, if anything, has changed to give the criminalization critique more
credibility than it had before? I do not think it is a newfound aggressiveness
on the part of federal prosecutors. They certainly pushed the envelope in
428 Amicus Curiae Brief of the Republican Governors Public Policy Committee in Sup-
port of Appellant and Reversal at 6, McDonnell, 792 F.3d 478 (No. 15-4019). It is hard to
believe that acceptance of tens of thousands of dollars in gifts ranging from loans and
transfers to shopping sprees and golf outings are the core of American politics.
430 JONATHAN RAUCH, BROOKINGS INST., POLITICAL REALISM: HOW HACKS, MACHINES, BIG
MONEY, AND BACK-ROOM DEALS CAN STRENGTHEN AMERICAN DEMOCRACY (2015).
431 Id. at 2.
432 Id.
433 Id.
434 Id. at 7.
435 Id. at 30.
436 Id.
437 See, e.g., Moohr, supra note 75 (arguing that federal mail fraud prosecutions of state
and local officials under the intangible rights doctrine implicates federalism concerns).
438 Skilling v. United States, 561 U.S. 358, 415–24 (2010) (Scalia, J., concurring in part
and concurring in the judgment).
439 Id.
440 See generally Brown, supra note 48, at 756–64 (discussing critiques to post-Watergate
anticorruption initiatives).
the old days of “honest services.”441 Elite opinion seems dominated by books
emphasizing the evils of corruption. The works of Jay Cost, Lawrence Lessig,
and Zephyr Teachout come quickly to mind.442
An important possible source of impetus for the critique is the judici-
ary.443 Citizens United has obviously played a role. Apart from its First
Amendment dimensions, it is a case about politics. The criminalization crit-
ics build on Citizens United to present politics as a continuum. Politics does
not stop with the election, as candidate supporters seek influence and access
once the candidate is in office. One could also find a variant of what Rauch
calls “transactional politics.”444 Elected officials will respond to their sup-
porters in order to keep getting elected. The result is a kind of bargain.
Obviously, I think that it is important to confine this view as much as possible
to the electoral context, just as Rauch’s transactional politics are confined to
dealings between public officials. McDonnell’s champions either don’t see
or don’t care that the slippery slope leads to viewing direct transfers of
value—whether to elected officials such as governors or to nonelected offi-
cials—as just another attempt to influence the political process. McDonnell’s
defense takes convergence theory to its ultimate conclusion: the equation of
campaign contributors with those who give gifts once the candidate is in
office. Thus campaign contributions and gifts stand on equal constitutional
footing as examples of the political process.
A possible significant victory for the criminalization critique is the Sev-
enth Circuit’s recent reversal of some of the convictions of former Illinois
Governor Rod Blagojevich.445 The election of Senator Barack Obama to the
presidency gave the Governor the power to appoint a successor. He saw in
this opportunity great potential for private gain. The Governor allegedly
promised, through intermediaries, to appoint a close associate of the Presi-
dent-elect. In return, he sought one of three things: a cabinet job, presiden-
tial intervention to get a foundation to hire him after his term ended, or
intervention to create a new “social-welfare” organization that he would con-
trol.446 For this and other questionable conduct,447 he was prosecuted
under several federal statutes, including the wire fraud statute’s provision on
honest services bribery.448
441 See generally Sorich v. United States, 555 U.S. 1204 (2009) (Scalia, J., dissenting from
denial of certiorari) (arguing that the absence of a limiting principle to honest services
invites prosecutorial abuse).
442 See generally JAY COST, A REPUBLIC NO MORE (2015); see also Lessig, supra note 73;
TEACHOUT, supra note 1.
443 Cf. SILVERGLATE, supra note 415 (noting early signals from courts of appeals in cur-
rent cases).
444 RAUCH, supra note 430, at 7.
445 United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015).
446 Id. at 733.
447 Id. at 733–34.
448 Id. at 735–36. As noted, the wire fraud statute works in tandem with the honest
services statute, which Skilling restricted mainly to bribery.
Although it upheld most of the guilty verdicts, the Seventh Circuit

reversed the convictions based on the dealings with the President-elect. The
court found that the jury might have reasoned that Blagojevich attempted to
deal the Senate appointment for any one of three things, including his cabi-
net appointment.449 It reasoned that “a proposal to trade one public act for
another, a form of logrolling, is fundamentally unlike the swap of an official
act for a private payment.”450 In an apparent endorsement of transactional
politics, the court singled out logrolling and stated that “[g]overnance would
hardly be possible without these accommodations.”451 It declined to find in
the statutes “a rule making everyday politics criminal.”452
Adherents of the criminalization critique will seize on Blagojevich as a
victory,453 just as they draw support from Citizens United. But each case con-
tains clear limitations. The Seventh Circuit was careful to draw a distinction
between “private benefit[s]”454 and interactions between officials. Citizens
United was about limits on contributions to elections. It also does not extend
to direct private transfers of value to public officials, even elected ones.
McDonnell and his defenders engage in a form of sleight of hand when they
attempt to equate private benefactors with campaign contributors by lump-
ing both under the heading of “supporters.”455 McDonnell may ultimately
prevail.456 However, the central issue is likely to be whether official acts were
needed, and properly defined in the instructions, as opposed to an endorse-
ment of private transfers of value as an essential part of “transactional
politics.”
Blagojevich is a particularly important case. Since it represents the first
judicial victory for the current criminalization-of-politics critique, it will
449 Id. at 735–35.

450 Id. at 734.
451 Id. at 735.
452 Id. (emphasis added). The court also reasoned that the Hobbs Act was inapplicable
because no “property” was obtained. Id. at 735–36. In his brief, Blagojevich argued that
he was convicted “for the non-existent crime of attempted political horse-trading.” Brief
and Short Appendix for Defendant-Appellant Rod Blagojevich at 36, Blagojevich, 794 F.3d
729 (No. 11-3853).
453 See SILVERGLATE, supra note 415 (treating Blagojevich as an important criminalization
case).
454 Blagojevich, 794 F.3d at 737.
455 Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Sup-
port of Appellant and Urging Reversal, supra note 426, at 2; see also Defendant-Appellant’s
Motion to Clarify Order Granting Release at 16, United States v. McDonnell, 792 F.3d 478
(4th Cir. 2015) (No. 15-4019) (equating gifts and campaign donations). In his petition for
certiorari, McDonnell makes the following argument: “[P]aying for ‘access’—the ability to
get a call answered or a meeting scheduled—is constitutionally protected and an intrinsic
part of our political system.” Petition for Writ of Certiorari at 14, McDonnell, 792 F.3d 478
(citing McCutcheon v. FEC, 134 S. Ct. 1434, 1450–51 (2014)). “Yet Gov. McDonnell was
convicted for, at worst, providing just that.” Id.
456 See, e.g., McCartney, supra note 404 (discussing possibility that the McDonnells
could “eventually be fully cleared on appeal”). The current Court’s emphasis on narrow
statutory construction certainly works in his favor.
receive an unusual amount of attention. The case presents an issue first vis-
ited by Professor Daniel Hays Lowenstein thirty years ago: can transactions
between elected officials ever be treated as bribery, even if the result of such
transactions is personal gain?457 The Seventh Circuit appears to hold cate-
gorically that “political logrolling” is not a form of bribery.458 The court felt
that the private gain from a job was not distinguishable from the political
gain that a politician would receive from a successful deal.459 The political
gain would ultimately result in private gain in this situation also.460 Still, a
political deal that involves a direct payment, albeit from the public fisc,
presents the twin dangers of skewed decisionmaking and public action for
private benefit.
The Seventh Circuit suggests a line that mitigates these dangers: logroll-
ing between elected officials. The examples it uses all involve such officials.461
It is likely that such deals usually do not involve direct personal gain. The few
that involve it represent the price we pay for (necessary) logrolling.
What about deals between elected officials and nonelected ones? These,
too, will be common in our system of transactional politics. Thus, State Sena-
tor A may push for an increased state education budget in return for a com-
mitment from the Commissioner of Education to place the next community
college in the Senator’s district. So far so good, but how does the law handle
the situation where the Senator supports the increase in return for a commit-
ment to hire the Senator’s spouse as a lecturer at the college?462 Perhaps
there are good reasons to confirm the Blagojevich result to elected officials,
each one of whom has a potential degree of influence over the other. The
hypothetical looks more like an attempt to use public office for private gain
than an example of “transactional politics.”
A final question about Blagojevich is whether the decision will have
ramifications beyond cases of transfers of value. The most obvious candidate
is patronage, an area that is the subject of the criminalization critique.463
Patronage as a means of party building can be defended as integral to a sys-
tem that relies on parties. Patronage certainly has been defended along
these lines by observers ranging from city councilors464 to Justice Scalia.465 It
457 See Lowenstein, supra note 23.

458 Blagojevich, 794 F.3d at 736.
459 Id. at 736–37.
460 Id. at 733. See Lowenstein, supra note 23, at 828 (distinguishing between personal
and political benefits).
461 Blagojevich, 794 F.3d at 735. The court employed hypotheticals using the President,
a senator, and congressmen. Id.
462 See United States v. Bryant, 655 F.3d 232, 237 (3d Cir. 2011) (in which a state sena-
tor increased funding for a state college, and a dean at the college hired the senator in a
“low show” job as a “Program Support Coordinator”).
463 See Silverglate, supra note 415 (including patronage prosecutions as evidence of the
criminalization of routine politics).
464 Tom Keane, Opinion, Indictments, Then Politics as Usual, BOS. GLOBE (Apr. 7, 2012),
https://www.bostonglobe.com/opinion/2012/04/06/indictments-then-politics-usual/
QjXfszQF52Tr9nV1zqJnqL/story.html. Mr. Keane is a former Boston city councilor.
comes in different forms, but usually involves a deal: support for the party, or
a particular politician, in return for a government job. Even though private
gain is involved (the job), patronage schemes may look more like the logroll-
ing in Blagojevich than the deal in the state senator hypo. It will be interest-
ing to see how far Blagojevich stretches in patronage litigation. A current
high-profile patronage case is working its way through the First Circuit. The
Massachusetts Commissioner of Probation was found guilty of giving jobs to
legislators in return for their support of his department.466 This is clearly
logrolling. Under Blagojevich, he might make a logrolling defense to any
bribery charges. However, he was not an elected official. Thus, under the
interpretation of Blagojevich discussed above, he should not be able to invoke
it.
As for the Bridgegate trial, it is early in the game, but the form of politi-
cal retaliation there looks like the reverse of logrolling: here’s what one gets
for not supporting the governor. Although the logrolling defense of
Blagojevich is probably not available, the prosecution may have a hard time
fitting the retaliatory acts under federal criminal statutes.467 The New Jersey
political processes may already have come into play in the form of damage to
the Governor, apart from any national damage.468
In sum, I am inclined to see the criminalization-of-politics argument as
the latest round in an ongoing debate. The strength of the critique—and its
various components—waxes and wanes over time. For example, there is an
obvious concern on the part of the current Court over unduly broad con-
struction of federal criminal statutes, a principal component of the debate.
Overall, I think the criminalization critique is unlikely to prevail to a signifi-
cant degree, but it serves the important checking function of reminding fed-
eral prosecutors and judges of the need for outer boundaries to the federal
anticorruption enterprise. As for Citizens United, its impact on the electoral
system is controversial.469 Its impact on ordinary corruption should be
minimal.
CONCLUSION
In Citizens United v. FEC, a majority of the Supreme Court articulated a

vision of corruption that accepts as desirable the gaining of influence and
465 Rutan v. Republican Party of Ill., 497 U.S. 62, 95 (1990) (Scalia, J., dissenting).
466 See United States v. O’Brien, 994 F. Supp. 2d 167 (D. Mass. 2014) (denying motion
to dismiss indictment).
467 See, e.g., Dave Neese, Opinion, Prosecution Takes a Bridge Scandal Too Far, THE
TRENTONIAN (May 10, 2015), http://www.trentonian.com/opinion/20150510/opinion-
prosecution-takes-a-bridge-scandal-too-far.
468 See, e.g., Kate Zernike & Nick Corasaniti, New Jersey Could Be a Tough State for Chris
Chrisite, N.Y. TIMES (June 30, 2015), http://www.nytimes.com/2015/07/01/us/politics/a-
tough-state-for-chris-christie-to-win-could-be-new-jersey.html?_r=0.
469 See Nicholas Confessore et al., Small Pool of Rich Donors Dominates Election Giving, N.Y.
TIMES (Aug. 1, 2015), http://www.nytimes.com/2015/08/02/us/small-pool-of-rich-
donors-dominates-election-giving.html.
access through participation in the electoral process, including independent

expenditures that aid a candidate. McCutcheon reaffirmed that vision, partic-
ularly the importance of safeguarding “[t]he line between quid pro quo cor-
ruption and general influence.”470 Outside of the electoral context,
however, much of the federal government’s anticorruption enterprise is
aimed at efforts to secure, or provide, special treatment in government
action. Statutes prohibiting bribery, extortion, and gratuities are at the core
of this enterprise. This Article has raised the specific question of whether
Citizen United’s version of corruption should provide guidance to these efforts
outside the electoral context in what I have referred to as the context of
“ordinary corruption.” It has also raised the questions of whether there
should be a relatively unified set of principles to guide Congress and the
federal courts in both areas, whether as a matter of constitutional law or stat-
utory interpretation, and whether such a unification is already underway.
This Article offers essentially negative answers to all these questions.
Influence acquired by expenditures in the rough-and-tumble of elections
should not be viewed in the same way as influence acquired through direct
payments to officials. Admittedly, the two contexts deal with the problem of
attempts to purchase access, ingratiation, and influence. However, they are
sufficiently different that having two approaches makes sense. When one
leaves the realm of theory to examine the Court’s decisions outside the elec-
toral context, the picture is, I admit, less clear. Cases such as Skilling and
Sun-Diamond point in the same direction as Citizens United: toward a narrow
view of what constitutes corruption. I contend these cases have not had the
impact that some contend and that they do not represent a significant step
toward a unified view of corruption. Rather, Evans has been the case with
generative force. The lower courts have built upon it to construct the stream-
of-benefits theory, an approach that permits criminalization of wide ranges of
influence-seeking behavior. Of course, this approach is potentially vulnera-
ble until the Supreme Court approves it. Twice before, the Court has
stepped in to halt such developments, one of which had the direct approval
of Congress. Another Skilling or McNally is surely possible. The newfound
strength of the criminalization-of-politics critique—particularly its tolerant
approach to transfers of value—may serve as an additional impetus towards
this result. Such an effort to rein in the lower courts’ search for the outer
limits of unlawful purchased influence would be a mistake. It would severely
undermine the important principles of democratic government that propel
and justify the federal anticorruption enterprise. As for the criminalization
critique, it does serve as a reminder of the need to be conscious of potential
limits to that enterprise. It should not, however, lead to a “politics as usual”
approach that brings the enterprise to a halt.
470 McCutcheon v. FEC, 134 S. Ct. 1434, 1451 (2014) (plurality opinion).

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Notre Dame Law Review

Volume 91 Issue 1 Article 4

Applying Citizens United to Ordinary Corruption: With a Note on

Follow this and additional works at: https://scholarship.law.nd.edu/ndlr

APPLYING CITIZENS UNITED TO

The [Citizens United] opinion comprehensively redefined corruption, and in so

178 notre dame law review [vol. 91:1

2015] applying CITIZENS UNITED to ordinary corruption 179

context call for differences in analysis of what corruption is. Examination of

7 504 U.S. 255 (1992).

180 notre dame law review [vol. 91:1

2015] applying CITIZENS UNITED to ordinary corruption 181

extensive consideration of the nature of corruption alongside an apparent

27 424 U.S. 1 (1976) (per curiam).

182 notre dame law review [vol. 91:1

writing suggestions of convergence.33 Indeed, arguments of convergence

I. THE VALIDITY OF HAVING TWO SEPARATE BODIES OF FEDERAL

A. The Case for a Bifurcated Approach

1. The Problem in General

33 See generally infra subsection II.B.3.c.

2015] applying CITIZENS UNITED to ordinary corruption 183

solicitation of bribes),37 extortion by public officials “under color of official

37 18 U.S.C. § 201(b) (2012).

184 notre dame law review [vol. 91:1

The answer should begin by focusing on the substantially different con-

2015] applying CITIZENS UNITED to ordinary corruption 185

186 notre dame law review [vol. 91:1

a serious dilemma if much of the federal anticorruption enterprise is

B. Rejecting Bifurcation in Favor of Convergence

2015] applying CITIZENS UNITED to ordinary corruption 187

what corruption is.69 These discussions might well be pertinent to ordinary

2. The Anticorruption Imperative

3. Other Constitutional Values in Play—The Unifying Concept of

At first blush, ordinary corruption presents constitutional issues that are

188 notre dame law review [vol. 91:1

officials.74 These prosecutions present obvious issues of federalism, which

2015] applying CITIZENS UNITED to ordinary corruption 189

ordinary corruption contexts present different constitutional frameworks.85

190 notre dame law review [vol. 91:1

nents of equality drew on Austin to uphold federal restrictions on corporate

2015] applying CITIZENS UNITED to ordinary corruption 191

There is a close relationship between this view of corruption and basic

109 See Brown, supra note 75, at 235.

192 notre dame law review [vol. 91:1

A. The Campaign Finance Cases and Their Competing Views of Corruption

The Court’s campaign finance cases have been addressed extensively in

2015] applying CITIZENS UNITED to ordinary corruption 193

122 See, e.g., Citizens United, 558 U.S. at 359–60.

194 notre dame law review [vol. 91:1

appear to pose dangers of real or apparent corruption comparable to those

133 Buckley, 424 U.S. at 46.

2015] applying CITIZENS UNITED to ordinary corruption 195

immense aggregations of wealth.”141 However, the Court dealt extensively

196 notre dame law review [vol. 91:1

of a quid pro quo that regulation, including prophylactic regulation, is war-

150 Citizens United, 558 U.S. at 318.

2015] applying CITIZENS UNITED to ordinary corruption 197

donor to a single candidate. However, the McConnell-Citizens United dispute

157 Id. at 1441.