Tradition is not the worship of ashes, but the preservation of fire.—Gustav Mahler

Wednesday, April 23, 2025

Tillman on “Corruption” in a Free Speech Case

 

 

Extract from: Declaration of Professor Seth Barrett Tillman [on Behalf of Plaintiff Dinner Table Action], Dinner Table Action v. Schneider, Civ. A. No. 1:24-cv-00430-KFW (D. Me. Apr. 23, 2025) (Karen Frink Wolf, Magistrate Judge, sitting by consent), ECF No. 62-3 (declaration filed by Charles M. Miller, Esq., Institute for Free Speech, and Joshua D. Dunlap, Esq., Pierce Atwood LLP) (complaint filed Dec. 13, 2024), 2025 WL -------, <https://www.courtlistener.com/docket/69464009/dinner-table-action-v-schneider/>, <https://ssrn.com/abstract=5225614>. 


[34] We might . . . ask: Do the anti-corruption concerns of the Framers and ratifiers, apart from constitutional text, supply a free-standing interpretive principle through which we could understand the Constitution? I believe the answer to this question is “no.” Where there is genuine ambiguity in a constitutional provision, a fair-minded interpreter who is aiming to determine a clause’s original public meaning can look to purpose, background assumptions, and policy concerns (such as limiting corruption) to determine the meaning and scope of a provision’s text. But where there is no genuine ambiguity, the agreed text should control. Likewise, a fair-minded interpreter should not look to Framers’ and ratifiers’ purposes, background assumptions, and policy concerns to generate interpretive principles abstracted from constitutional text. Why? First, no one agreed to purpose, background assumptions, and policy concerns. What was agreed to was the Constitution’s text. The Constitution nowhere uses the language of “corruption.” Thus, our injecting “corruption” into the interpretive process risks displacing other purposes, background assumptions, and policy concerns which were in play in 1787–1788. Second, we should not confuse a widely shared policy concern (e.g., limiting corruption) with widespread agreement as to what that policy entails. I do not doubt that every member of the Constitutional Convention sought to limit corruption. Corruption-discourse was widespread in the 18th century, at the Constitutional Convention, and in public debate on the Constitution during 1787–1788. But a shared use of corruption-related language in political debate does not mean that the participants in that debate had any widely shared understanding of what corruption was, or what policies would effectively limit corruption, or what level of corruption (if any) should be risked to facilitate accomplishing other important and widely shared policy goals. It is precisely because such questions are, in my view, unanswerable that our understanding of the law of the Constitution should be tethered to constitutional text. Finally, “corruption” is an amorphous term, as is “virtue” or the “common good.” In my opinion, the idea that specific substantial legal issues should be decided by reference to such amorphous terms, abstracted from constitutional text, is fundamentally unsound.

[35]    Corruption in the form of quid-pro-quo bribery is relatively easy to identify. When an elected official solicits or accepts a bribe in the form of cash or property for performing or promising to perform some public act (or some inaction), all the benefits flow to the recipient, and none to the public. The transaction is usually hidden from public view, and the money or property may be secreted in a closet or [placed] under an assumed name or false identity. And the recipient is unlikely to pay taxes on his “earnings.” Perhaps, this relative ease in regard to identifying such transactions is one reason why this wrong, that is, quid-pro-quo bribery, is among the three charges which will support a conviction under the Constitution’s Impeachment Clause.[1] By contrast where a public official trades an official action for another public act, it is much less clear if the public official’s conduct is a bribe or corrupt. On Lawfare, my co-author and I wrote:

Judge Frank Easterbrook stated this principle in even stronger terms regarding the conviction and sentencing of Illinois Governor Rod Blagojevich, who offered to appoint Valerie Jarrett, a close associate of President-elect Obama, to a vacant U.S. Senate seat, in exchange for Blagojevich’s receiving an appointment to the Obama cabinet. Blagojevich was convicted on multiple counts. On appeal, in U.S. v. Blagojevich (2015), the U.S. Court of Appeals for the Seventh Circuit found that particular counts of his conviction could not stand. Judge Easterbrook explained that “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” He added that “[g]overnance would hardly be possible without” political log-rolling, “which allow[s] each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.”

Thus, according to Easterbrook, in such circumstances, even mixed motives are irrelevant. Such acts are presumptively lawful, and should not be investigated, let alone be considered for indictment or impeachment. If there is any evidence that there was some sort of secret benefit (such as a suitcase full of cash), then the government can investigate and, if warranted, prosecute that additional act. The secretness of the benefit is evidence of corrupt intent. Where one public official act is traded for another public official act, there has not been any illegal conduct.

We can think of one high-profile and far more brazen effort by a president to improve his party’s prospects through the use of official communications. In 1864, during the height of the Civil War, President Lincoln encouraged Gen. William Tecumseh Sherman to allow soldiers in the field to return to Indiana to vote. What was his primary motivation? It was to make sure that the government of Indiana remained in the hands of Republican loyalists who wished to continue the war until victory. This action risked [temporarily] undercutting the military effort by depleting the ranks. Lincoln had dueling motives. Privately, he sought to secure a victory for his party. This personal interest should not impugn his public motive: win the war and secure the nation.[2]

A common definition, but by no means universal definition, for “corruption,” is using public power or resources for private gain or ends. Using this definition, the key problem for deciding what is or is not corrupt would depend on what is considered “private gain or ends” as opposed to legitimate public ends.[3] In his PhD dissertation, Professor Jonathan Gienapp wrote:

In the wake of several political defeats (including the dispute over the [B]ank [of the United States]), Madison began spending more time with [his] old friend Jefferson. The two began more consciously recognizing the connection between their relationship and the political fate of the nation. In the spring of 1791 the two Virginians took a fateful “botanizing” tour north to New York and New England during which time they contemplated opposition and forged political alliances. From their perspective, the situation was too dire, Hamilton’s schemes too pernicious, and Washington’s innocence too unreliable not to take more drastic steps.

The critical move was to bring Philip Freneau, who had acquired a reputation through his earlier newspaper work, to Philadelphia. Just days after Washington signed the bank bill into law, [Secretary of State] Jefferson offered Freneau a position as translating clerk in the State [D]epartment in the hope that he would establish a newspaper to challenge John Fenno’s strongly pro-administration Gazette of the United States. Freneau agreed and in October began publishing the National Gazette, a paper which while at first tame would explode in anti-Hamiltonian hysteria the next spring in the wake of the financial speculations that had begun to unsettle the nation. With rival newspapers unleashed, before long open partisanship would consume the infant republic.[4]

I do not doubt Gienapp’s report of the history here. What is interesting about this passage is that it does not address whether or not, given all the circumstances, and then prevailing norms, Jefferson’s appointing Freneau to a public post was corrupt. Sometimes seeing the issue, and its complexity, is more important than identifying an answer (or, better, what one believes to be the answer).[5]

A corruption-minimalist would argue that Jefferson was not seizing Freneau’s public salary, and that (as far as we know) Freneau, like other potential candidates for the State Department translator position, was capable and, in fact, did his job. The public was not meaningfully disadvantaged by the appointment and the public received the primary benefits for which Congress authorized the creation of that position and its compensation with a salary drawn on the public treasury. Using that narrow framework, Jefferson’s conduct was not wrongful or corrupt. Furthermore, Jefferson subjectively believed that his faction’s winning seats in Congress and his prevailing in a future contest for the presidency was in the public interest.

By contrast, a corruption-maximalist would argue that Jefferson was not choosing the candidate most fit for the job. He was not using his control over a public position entirely for the ends for which Congress authorized the position and authorized its compensation with a salary drawn on the public treasury. Rather, he was using the position to facilitate an arguably private interest: his and his faction’s prevailing in contested elections. He was using public power, at least in part, for private ends. And in arriving at that conclusion, Jefferson’s subjective and self-interested beliefs as to what constitutes good policy and who is best capable of bringing that about (that is, himself or his political opponents) should play no role.

          So who is correct? The corruption-minimalist or the corruption-maximalist? Honestly, I do not think this question has anything like a clear answer. Furthermore, I do not think there is any way to determine if the Framers, ratifiers, and the public circa 1788 were, systematically as a group, closer to one of these two views or to the other. We do not have information in regard to their views at this level of specificity.[6] All we have is the language they agreed to in the as-ratified Constitution. It is the meaning of that language which should be our central focus.

          The real issue is something else entirely. Had Jefferson been impeached by the House or had a prosecutor sought to try Jefferson for (non-quid-pro-quo) criminal bribery or extortion, would the merits have been decided by any particular 18th conception of corruption? I think not. Rather corruption would have become a vehicle casually used to decide the political contest between the Hamiltonian and Jeffersonian factions—the incipient factions which gave birth to our first political parties as the Washington administration dragged on and came to a close.[7] And that’s the point: corruption, as that term was used in the late 18th century, is conceptually too amorphous to determine concrete legal questions involving the Constitution, and where that concept is given room, it merely provides an awkward arrow in the quiver held by partisans in naked contests for political power. Finally, it is worth noting that the Framers had actually included “corruption” as an impeachable offense in the draft constitution reported by the Committee of Detail, but it was subsequently dropped out.[8] As a result, the Framers did not include term “corruption” in any provision of the Constitution of 1788—so, whatever they meant by that term, they left it out, apparently deliberately after having considered including it, and for that reason, among others, we should not inject their understanding of that term back into our (and their) Constitution.


Seth Barrett Tillman, ‘Tillman on “Corruption” in a Free Speech Case,’ New Reform Club (Feb. 23, 2025, 3:13 AM), <https://reformclub.blogspot.com/2025/04/tillman-on-corruption-in-free-speech.html>; 


[1] See U.S. Const. art. II, § 4 (“The President, Vice President and all civil Officers of the  United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (emphasis added)).

[2] Josh Blackman & Seth Barrett Tillman, Defining a Theory of “Bribery” for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM), https://www.lawfaremedia.org/article/defining-theory-bribery-impeachment (bold added) (cited 6 times).

[3] There will always be borderline and other hardcases. For example, where a public official intentionally spends public funds absent legislative (or other necessary) authorization, such actions may be done for the best motives even if they are not strictly legal. But are such actions corrupt? Lincoln, for example, at the outbreak of Civil War hostilities, spent public funds to arm and protect the Union at a time when Congress was out of session and had not authorized such actions. See Note, Recent Emergency Legislation in West Germany, 82 Harv. L. Rev. 1704, 1708–09 (1969). But see Paul Einzig, The Control of the Purse 166 (1959) (noting a House of Commons 1784 resolution “to the effect that public officers responsible for paying out public money without the authority of an Appropriation Act would be guilty of [a] ‘high crime and misdemeanour, a daring breach of public trust, derogatory to the fundamental privileges of Parliament, and subversive to the Constitution.’” (quoting the resolution)).

[4] Jonathan Gienapp, The Transformation of the American Constitution 305–06 (2013) (footnotes omitted) (unpublished Ph.D. dissertation, Johns Hopkins University Dep’t of History) (on file with ProQuest Dissertations & Theses Global) (footnotes omitted).

[5] Compare Jonathan Gienapp, Removal and the Changing Debate over Executive Power at the Founding, 63 Am. J. Legal Hist. 229, 237–38 (2023) (arguing that Hamilton’s “The consent of that body would be necessary to displace as well as to appoint”-language in Federalist No. 77 referred to removal, and not to replacement), with 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833) (explaining that presidential “removal takes place in virtue of the new appointment [that is, by replacement], by mere operation of law” and that this was Hamilton’s position in Federalist No. 77). See generally Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (cited 51 times) (explaining that Hamilton’s use of “displace” in Federalist No. 77 is ambiguous, but remaining generally supportive of Justice Story’s position).

[6] See, e.g., [F.H. Buckley, The Republic of Virtue 72, 222 n.4 (2017)] (criticizing Professor Buckley’s position for extending well-grounded and historically-rooted corruption concerns relating to the executive’s “bribing” members of the legislature by appointing members to lucrative office . . . to other factual circumstances relating to a member of the legislature’s holding a second elected position absent intervention by the executive).

[7] One might say that Hamilton predicted all this in Federalist No. 65. In discussing impeachment, Hamilton wrote:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Federalist No. 65 (1788) (Hamilton) (italics added).

[8] See Madison, Notes, in [2 The Records of the Federal Convention of 1787, at 186 (Max Farrand ed., 1911)] (reproducing August 6, 1787 report of the Committee of Detail); Journal, id. at 422 (approving, August 27, 1787, “treason, bribery, or corruption” language); Madison, Notes, id. at 550 (reporting September 8, 1787 debate where “mal-administration” was considered, but not voted upon, and “corruption” was apparently dropped in favor of “other high crimes & misdemeanors”); supra at 600 (reproducing, from September 12, 1787, the Committee of Style’s proposed draft impeachment provision, which did not make use of any “corruption” language).

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