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Vol. 103, Issue 2


A First Amendment Right to Corrupt your Politician

Eugene Temchenko

28 Jul 2020

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently created a First Amendment right to buy a politician’s influence, favor, and advocacy even outside the campaign finance setting. Undoubtedly, to the general public this must appear as nothing other than a First Amendment right to bribery. Yet this right has already been articulated in courts and has the support of at least one U.S. Circuit Court of Appeals judge. These findings suggest that Congress may no longer be able to criminalize certain types of corruption. Some courts have begun to reverse convictions and invalidate parts of existing anti-corruption statutes. While the impact of the First Amendment right remains unclear, the dismantling of the United States’ anti-corruption framework may already have begun.

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