In The Arena What John Roberts Doesn’t Get About Corruption Quite a lot, it turns out.

Zephyr Teachout is fellow at the New America Foundation and associate law professor at Fordham Law School. Her book, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, will be published by Harvard University Press in September.

In McCutcheon v. FEC, the landmark case that threw out aggregate limits on campaign spending last week, Chief Justice John Roberts made clear that for the majority of this current Supreme Court, corruption means quid pro quo corruption. In other words, if it’s not punishable by a bribery statute, it’s not corruption.

This is a reasonable mistake to make at a dinner party. But it’s a disastrous mistake to make for democracy, when the stakes are so high. Essentially, Roberts used a criminal law term—of recent vintage and unclear meaning—to describe a constitutional-level concept. It is as if he used a modern New York statute describing what “speech” means to determine the scope of the First Amendment.


To hear Roberts—or his fellow justices Clarence Thomas, Antonin Scalia and Anthony Kennedy—tell it, corruption isn’t corruption if there isn’t a quid pro quo.

Here’s Roberts, writing for the majority in McCutcheon: “Any regulation must instead target what we have called ‘quid pro quo’ corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money.”

Scalia, dissenting in a 2000 campaign finance case, Nixon v. Shrink Missouri Government PAC: “The majority today, by contrast, separates ‘corruption’ from its quid pro quo roots and gives it a new, far-reaching (and speech-suppressing) definition.”

Kennedy, dissenting in part in the 2003 McConnell v. FEC: “Buckley made clear, by its express language and its context, that the corruption interest only justifies regulating candidates’ and officeholders’ receipt of what we can call the ‘quids’ in the quid pro quo formulation.”

Thomas, concurring in 1995 in Colorado Republican Federal Campaign Committee v. FEC: “We have narrowly defined ‘corruption’ as a ‘financial quid pro quo: dollars for political favors.’”

Roberts, inveighing against the argument that corruption means anything but quid pro quo in a 2007 case, Wisconsin Right to Life v. FEC: “Enough is enough.”

In McCutcheon, as in Citizens United v. FEC, the 2010 case that laid the groundwork for last week’s decision, the lead opinion uses quid pro quo as kind of Latinate talisman that can get judges out of the mess of actually balancing difficult questions of democracy. The problem is that, like a lot of talismans, it looks older and more genuine than it is. It is actually only a few decades old, and doesn’t have the magic they think it does. Until the court mentioned it in Buckley v. Valeo, the 1976 case that struck down expenditure limits for the first time, it was not a major part of corruption law, and until Justice Sandra Day O’Connor was replaced by Samuel Alito, no majority opinion had used it to define the outer limits of corruption.

The chief justice has one thing right: Quid pro quo is indeed a Latin phrase. However, he got almost everything else about it wrong. First, its historical legal roots lie not within corruption, but in contract law. It refers, in that context, to the idea of relatively equal exchange between parties. In the absence of relative equality—quid pro quo—a court might question whether there was an actual contract. If I give you a dollar, and you give me a mansion, our contract would lack quid pro quo.

In fact, the phrase “quid pro quo” appeared less than 100 times in all state and federal bribery and extortion cases before 1976. There are a handful of cases in which the language of quid pro quo shows up in bribery discussions, but not as one of the elements of, or an essential feature of, bribery. Most of the time, though, it was used in the historical “equality of exchange” sense. In cases holding that no quid pro quo was required to prove extortion, the courts meant that the illegal deal didn’t need to be equal or fair.

When quid pro quo was mentioned in the per curiam opinion Buckley, it was not as a definition, but in passing. These are the relevant passages: “To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.” And: “Assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608(e)(1) does not provide an answer that sufficiently relates to the elimination of those dangers.” Neither of these passages takes on the task of defining corruption by reference to quid pro quo, or explains what quid pro quo means.

No reasonable reading of Buckley limits all corruption to quid pro quo corruption. Elsewhere in the opinion, the court is quite clear that it is concerned with more than quid pro quo, and more than just “explicit and blatant exchanges.” No matter: After Buckley, several of the justices attempted to make the phrase the epitome of corruption, instead of an example of it.

White-collar law is no more kind to Roberts’s definition of quid pro quo. A brief tour of state laws shows that the phrase is an essential feature of corruption statutes. Florida has recently concluded that its statute includes no quid pro quo requirement. The Maryland court held that its statute does not require “quid pro quo for specific action.” Neither Arizona nor Ohio nor Illinois requires quid pro quo. Ohio’s bribery statute is violated when there is “improper influence.” In Alabama, corrupt intent is the key, and measured by the jury.

But the most essential flaw in using quid pro quo to define the limits of the meaning of corruption is that it doesn’t actually have clear boundaries. Even within the areas where quid pro quo has been litigated since its invention in the 1970s, the term has no definite meaning either in constitutional or white-collar criminal law. In white-collar criminal cases, quid pro quo sometimes means the solicitation or offer of something specific in exchange for some specific governmental action. It sometimes requires a spoken or written request, and sometimes something less, when the potential bribe is a campaign contribution. As the Sixth Circuit recently quipped, just before citing The Godfather, “Not all quid pro quos are made of the same stuff.”

In fact, some federal circuits’ definitions of quid pro quo encompass the exchange of money for unspecified influence—in other words, quid pro quo does not require that a particular governmental action be tied to the gift. In one important case, David Rosen, the former CEO of MediSys Health Network, was convicted for paying legislators to help him within the New York state legislature and state agencies. The officials he paid didn’t agree to perform specific official acts, but to help out in the future. Rosen appealed on the grounds that there was no quid pro quo because the governmental actions weren’t defined. In other words, he was paying for future influence, not for a particular thing. The Second Circuit rejected Rosen’s appeal and concluded—following established precedent—that quid pro quo encompasses even those situations where the quo can’t be tied to the quid. They call it “as opportunities arise” quid pro quo.

Chief Justice Roberts alludes to this problem briefly in his McCutcheon decision, when he writes, “The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights.” In other words: There is no line, respect the line. Roberts is right that vagueness is no reason to reject an important principle, making it all the more perplexing that he refuses to delve into the principle itself.

What ought he have done? Roberts should have engaged this lack of clarity more directly by moving past the term quid pro quo and talking about values, American history and political philosophy. There is no magic answer or way to define the corrupt from the not-corrupt, any more than there is a magic answer or way to distinguish “democracy” from “not democracy,” or “due process from “not due process,” or any other central American principle. For all of these, we would do better to plumb American history and democratic theory and the lived life of American politics. To put it gently, I find his process—for something so essential—disturbingly glib.

Roberts gets around these difficult questions by drawing on a particular set of meanings of quid pro quo that were never intended to define corruption. He cites McCormick v. United States, a 1991 case about a West Virginia state legislator named Robert McCormick who had sponsored legislation that was favorable to a group of foreign doctors. The problem was, McCormick had called the doctors’ lobbyist to tell him that his 1984 re-election campaign was getting expensive. According to the lobbyist, McCormick’s tone of voice—if not his actual words—strongly implied that he needed a campaign contribution. The lobbyist assumed the contribution would help the doctors’ proposed legislation, and the doctors duly pitched in with a series of small cash donations. When McCormick was convicted of violating federal bribery law, he appealed.

The Supreme Court overturned McCormick’s conviction and started stumbling toward a definition of what constituted corruption in the context of white-collar bribery law. In this context and only in this context, payments must have been made in return for an “explicit promise” to do (or not do) an official act.

So here is Roberts’s ringer, right? McCormick said that in campaign finance, that’s what quid pro quo means? Wrong. First, the justices in that case were interpreting a federal statute, not the Constitution. Second, the reason for their ruling was that Congress had created a kind of safe harbor around campaign donations under a certain amount when it enacted the post-Watergate campaign finance regime. In that opinion, they were upholding the regime—including the specific numerical rules encompassed in it. They used quid pro quo in this context for reasons that had nothing to do with any historical conception of corruption, or with any historical conception of quid pro quo: They did it because of concerns that the federal bribery laws, by their terms, would violate the due process clause. And they worried that if every $2,000 contribution made with intent to influence a candidate was a potential bribe, no one would fund campaigns, and Congress has implicitly endorsed private funding of campaigns.

The irony of the Citizens United and McCutcheon decisions is that they will create a greater push to use bribery prosecutions in close cases to deal with corruption. If Congress can’t pass simple, prophylactic rules—like aggregate limits—political pressure will fall on prosecutors to use statutes that require proof of corrupt intent. Many modern scholars dislike using these kinds bribery laws for corruption protection for the same reason the McCormick court did: It can lead to selective prosecution, and it puts an extraordinary amount of power in the hands of political opponents. Structural rules—like the kind the court struck down in McCutcheon—are better because there is none of that lack of clarity.

Structural rules also happen to be the kind of rules favored by America’s founding fathers, who rarely invoked criminal bribery laws in the hundreds of discussions they had about corruption. In fact, the framers fought constantly about the best ways to protect against corruption. They worried about excessive private interests overtaking the public sphere, a corruption that appeared constantly without any quid pro quo—it showed up when parliamentarians became too dependent on King George for jobs, it showed up when the king of France gave expensive gifts to diplomats, it showed up when people went into public office in order to get a sinecure.

Back then, the sinecure might have been at the post office; now, it is more frequently at a lobbying firm. This broader understanding of corruption—like quid pro quo—is also vague at the margins. But it represents a deep American value, one that Congress and the states have every right to defend in legislation limiting excessive contributions and expenditures.

So, to John Roberts, I say: Forget Latin—let’s invoke our own history.