Seth Barrett Tillman has posted his forthcoming article, “Citizens United and the Scope of Professor Teachout's Anti-Corruption Principle,” on SSRN. Here is an excerpt of the abstract:
Teachout’s Anti-Corruption Principle is part-and-parcel of the originalist project. It is an attempt to understand the Constitution in light of its text, drafting records, ratification debates, and general late eighteenth century history. Specifically, Teachout makes three related historical and interpretive claims. First, the Framers were “obsessed” with corruption. In other words, preventing or, at least, minimizing corruption was among the Framers’ primary goals, and absent an appreciation of this purpose, one cannot understand either the Constitution’s global architecture or several of its key structural provisions. Second, these separate individual anti-corruption constitutional provisions, working together, give rise to a separate or free-standing structural anti-corruption principle (“ACP”). And, third, the ACP can compete against other constitutional provisions and doctrines, thereby providing originalist foundations for upholding congressional enactments which would otherwise be struck down under competing principles.
For example, Teachout points to the Foreign Emoluments Clause (“FEC”), which provides: [N]o Person holding any Office of Profit or Trust under them [i.e., the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Teachout suggests that foreign governments which lack loyalties running to the United States, may be analogized to “wealthy corporations,” whose “legal loyalties necessarily exclude patriotism.” Just as Congress, under the FEC, may proscribe (at least certain) federal officers from accepting gifts from foreign governments, Congress, Teachout suggests, may also have a concomitant power under the ACP to proscribe corporate election campaign contributions and spending. The stakes here are quite high: If Teachout is correct, then much First Amendment doctrine and election-law jurisprudence will have to give way (or, at least, be seriously reexamined) in light of the newly discovered (or rediscovered) principle of constitutional interpretation. Indeed, Justice Stevens, and the three dissenters who joined him, used Citizens United as just such an occasion: The dissent sought to recast First Amendment jurisprudence in light of a competing constitutional vision – the Framers’ anti-corruption principle.
Other commentators have criticized Teachout in regard to the second step and third step of her analysis. My critique, by contrast, will largely focus on the first step of Teachout’s analysis – her initial historical and textual claims. Teachout’s historical claim is simply wrong: the Founders were not “obsessed” with corruption. Second, Teachout misunderstands the constitutional text giving rise to her purported free-standing anti-corruption principle. Even if one concedes (as, in fact, I do) the existence of a free-standing anti-corruption principle, the scope of that principle extends exclusively to appointed federal offices, not to (state or federal) elective positions. Thus, Teachout’s ACP cannot inform our First Amendment analysis in regard to congressional power over state or federal election processes.