In The Anti-Corruption Principle, an article in the Cornell Law Review, Professor Zephyr Teachout argues that the Constitution contains a freestanding structural anti-corruption principle (ACP). Evidence for this principle can be gleaned from both Founding Era materials, illustrating that the Framers and their contemporaries were obsessed with corruption, and in several of the Constitution’s key structural provisions. The ACP has independent constitutional bite: the ACP (like separation of powers and federalism) can compete against other constitutional doctrines and provisions, even those expressly embodied in the Constitution’s text. For example, Teachout posits that just as Congress—under the Foreign Emoluments Clause—may proscribe government officials from accepting gifts from foreign governments, Congress may also have a concomitant power to prevent corruption—under the ACP—by proscribing corporate election campaign contributions and spending. This Essay argues that Teachout’s ACP goes too far. On the historical point, Teachout is incorrect: the Framers were not obsessed with corruption. Moreover, she also misconstrues the constitutional text that purportedly gives rise to the freestanding ACP. Even if one concedes the existence of the ACP as a background or interpretive principle, its scope is modest: it does not reach the whole gamut of federal and state government positions; rather, it is limited to federal appointed offices. Why? Teachout’s ACP relies primarily upon three constitutional provisions: the Foreign Emoluments Clause, the Incompatibility Clause, and the Ineligibility Clause. The Foreign Emoluments Clause’s scope does not extend to elected positions, state or federal; it only extends to federal appointed officers. Likewise, the office-related language in the latter two clauses is similarly restricted. Because the scope of these provisions does not extend to elected positions, the ACP cannot reach elected positions. In other words, the ACP cannot have a wider scope than the constitutional provisions upon which it is based. It follows that the ACP cannot inform any historically accurate and textually faithful First Amendment analysis of congressional power over state or federal election processes. Still, Teachout’s ACP, even one of limited scope, can teach us much. The Anti-Corruption Principle is a natural extension of prior scholarship tying our public law to contemporaneous eighteenth-century private law concepts and doctrine— fiduciary duties, equity jurisprudence, trust law, and corporate law. In conclusion, the ACP provides fertile ground for new thinking and new research, but ultimately, it can teach us very little about election law or the scope of First Amendment protections in relation to the political process.
