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The unspoken institutional battle over anti-corruption: Citizens United, honest services, and the legislative-judicial divide

The unspoken institutional battle over anti-corruption: Citizens United, honest services, and the legislative-judicial divide
The unspoken institutional battle over anti-corruption: Citizens United, honest services, and the legislative-judicial divide
Guided by two cases decided in 2010 (Citizens United and Skilling), this article investigates a pivotal but overlooked dispute between the Supreme Court and Congress over the acceptable contours of public corruption law. Each case narrowly relies on principles and precedents that appear only tangentially related to corruption. Yet in historical context, these cases emerge as only the latest judicial nullification of broad and flexible congressional anti-corruption legislation. Through parallel examination of campaign finance regulation and honest services law, this article suggests a subtle but striking pattern: when Congress has advanced expansive, flexible anti-corruption measures, the Supreme Court has tenaciously constrained such measures in favor of narrowly drawn bright-line rules.

This article argues that the disagreement originates in the institutions’ differing postures towards anti-corruption. Certain congressional action has promoted civic-minded public conduct, and thus facilitated ‘deliberative’ examination of political motives. However, the Supreme Court has generally blocked broadly constructed anti-corruption measures because their enforcement threatens constitutionally protected individual rights. Thus the Court has left standing a ‘competitive’ anti-corruption regime which presumes a market-like political setting populated by self-interested actors.

This unspoken divergence has shaped corruption law, and with it the nature of American politics. The Court’s intractability poses a dilemma for future anti-corruption reform. Policy-makers must either defer to the Court but relinquish the possibility of deliberative anti-corruption achieved through traditional regulatory and prosecutorial means, or force a reconsideration of individual rights in the context of anti-corruption enforcement.
363-447
Eisler, Jacob
a290dee3-c42f-4ede-af9a-5ede55d0135a
Eisler, Jacob
a290dee3-c42f-4ede-af9a-5ede55d0135a

Eisler, Jacob (2011) The unspoken institutional battle over anti-corruption: Citizens United, honest services, and the legislative-judicial divide. First Amendment Law Review, 9 (Symposium Issue), 363-447.

Record type: Article

Abstract

Guided by two cases decided in 2010 (Citizens United and Skilling), this article investigates a pivotal but overlooked dispute between the Supreme Court and Congress over the acceptable contours of public corruption law. Each case narrowly relies on principles and precedents that appear only tangentially related to corruption. Yet in historical context, these cases emerge as only the latest judicial nullification of broad and flexible congressional anti-corruption legislation. Through parallel examination of campaign finance regulation and honest services law, this article suggests a subtle but striking pattern: when Congress has advanced expansive, flexible anti-corruption measures, the Supreme Court has tenaciously constrained such measures in favor of narrowly drawn bright-line rules.

This article argues that the disagreement originates in the institutions’ differing postures towards anti-corruption. Certain congressional action has promoted civic-minded public conduct, and thus facilitated ‘deliberative’ examination of political motives. However, the Supreme Court has generally blocked broadly constructed anti-corruption measures because their enforcement threatens constitutionally protected individual rights. Thus the Court has left standing a ‘competitive’ anti-corruption regime which presumes a market-like political setting populated by self-interested actors.

This unspoken divergence has shaped corruption law, and with it the nature of American politics. The Court’s intractability poses a dilemma for future anti-corruption reform. Policy-makers must either defer to the Court but relinquish the possibility of deliberative anti-corruption achieved through traditional regulatory and prosecutorial means, or force a reconsideration of individual rights in the context of anti-corruption enforcement.

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Published date: 2011

Identifiers

Local EPrints ID: 423444
URI: https://eprints.soton.ac.uk/id/eprint/423444
PURE UUID: c5c1a954-1220-4a63-9c0c-a6705699f15c
ORCID for Jacob Eisler: ORCID iD orcid.org/0000-0003-4422-5255

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Date deposited: 24 Sep 2018 16:30
Last modified: 15 Oct 2019 00:22

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