Editor's Note: This Essay is Part III of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here, and Part II is available here. Part IV of the exchange is forthcoming July 2013.
I. The Debate So Far
In her 2009 Cornell Law Review article, The Anti-Corruption Principle, and in subsequent publications (including here on Northwestern University Law Review Colloquy), Professor Teachout thoroughly analyzed the text of the Constitution and the records of its framing, primarily relying upon three clauses: the Ineligibility Clause, the Incompatibility Clause, and the Foreign Emoluments Clause. This last clause, the Foreign Emoluments Clause, proscribes (at least some) United States officials from accepting gifts from foreign governments absent congressional consent. Teachout's key insight was to analogize corporate contributions and spending in domestic elections to these proscribed foreign government gifts. Like foreign governments, domestic corporations do not owe a duty of loyalty to the United States. A domestic corporation's duty of loyalty is owed to its stockholders, not to our polity as a whole. On the strength of this analogy, the Foreign Emoluments Clause enjoyed pride of place in her analysis; or, at least, that is the way her paper was commonly understood. Teachout observes that the purpose, if not the primary purpose, behind these three provisions (and that of many other constitutional provisions) was to prevent or limit corruption. On this basis, she suggests that the Constitution embodies a structural anti-corruption principle. At this very generic level of abstraction, Teachout and I agree.