For all the study expended on public corruption and possible measures to control it, few take seriously or pay much attention to the “ethics” rules that Congress makes for itself.  Something interesting is going on here.  On the one hand, supporters of campaign finance reform are quick to defend Congress’ legislative handiwork over the years.  Defenders of McCain-Feingold deny that it was infected with incumbent self-interest.  Upholding the new law against constitutional challenge, the Court in McConnell v. FEC even situated it within a long history of Congressional steps to combat corruption, characterized as   “careful” and “cautious” and deserving of deference. 540 U.S. 93, 117 (2010)[citations omitted].  Yet when Members prescribe rules to govern their conduct in dealings with supporters or donors, the applause is thin and it is rare that legislators get even the benefit of the doubt.

It is possible that an important part of the story has been missed, or underplayed, and that the Supreme Court may have the opportunity to rectify, if only indirectly, the imbalance.

Has the Supreme Court created an environment “pregnant with possibility of corruption?”  The Washington Post Editorial Board makes this case, building it around the rise of super PACs, and it locates the problem in the Supreme Court’s reasoning in Citizens United.  The argument does not clarify especially well the choices ahead in campaign finances, or the role of Citizens United in shaping them, or the means of grappling with bona fide corruption.  The Post’s miscue is the insistence on keeping campaign finance reform tied tightly to the corruption debate—or, more accurately, tied up with it, with nowhere to go.

The Super PAC is the leading issue in campaign finance, and this is only superficially because it is new, exotic and, to many who write about it, alarming.  It has without question brought to head the fault line running through the contribution-expenditure distinction and expedited the obsolescence of the Buckley framework.  And it is forcing the question of whether we should be concerned in campaign finance about corruption or its appearance, or perhaps about something else.  And the answer is “something else.”

“What is corruption, how should we define it, and why is it bad?”

This is the question put to the panel organized by Fordham Law and featuring key theorists about corruption and equality, all of them on the reform side.  It is available on video and well worth watching.  Rick Hasen has already reported that he and Larry Lessig came to a sort of detente – – coming closer, he said, “than we ever have before” on the role of money. This is an understatement.  By the time they were done, Lessig, champion of a theory of “dependence corruption”, and Hasen, vigorous exponent of a theory of political equality, agreed that they might be talking about roughly the same thing.  Somewhat more on her own was Zephyr Teachout, who argued eloquently for a morality-based view of corruption centrally concerned with shoring up civic culture.

This conference may have signaled the beginning of the end of the emphasis in leading reform scholarship on “corruption”, at least in the sense in which it has dominated the debate for decades.  The difference between Lessig’s position and Hasen’s is “semantic”, as Hasen now sees it, and Professor Lessig does not appear to disagree.  Quid pro quo corruption is not Professor Lessig’s primary concern.  In fact, he told the conference that when he meets with Members of Congress, he finds them generally to be well-motivated—good men and women, as the saying goes, caught up in a bad system.

If it is generally agreed that politics should not be criminalized, there is uncertainty about the sort of “politics” that should be protected. Jeffrey Bellin warns about prosecutors with unfettered discretion who can aim vaguely drafted laws at public officials.  And he and others have noted the concern triggered by the McDonnell prosecution over the breadth of the definition that may be given to the term "official act" in prosecuting public corruption cases. The task is to distinguish the official from the political act, or to decide when an action motivated by both official and political purposes is properly accountable under the criminal laws.