Restrictions on campaign speech violate the First Amendment unless they are aimed at preventing either corruption or the appearance of corruption. The definition of corruption is thus central to campaign finance jurisprudence. In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court defined corruption narrowly, to include a quid pro quo exchange and nothing else. In this Note, I examine the viability of that definition by combining two previously dissociated bodies of literature—one exploring the Court’s varying definitions of corruption in campaign finance cases and the other addressing the proper role of a representative in a democracy. I argue that, although any viable definition of corruption must be based on an underlying theory of representation, no commonly accepted theory of representation underlies the narrow quid pro quo definition adopted in Citizens United. Thus, I suggest the Court take up another campaign finance case soon, so that it can either (1) articulate a theory of representation that justifies its narrow quid pro quo definition of corruption or (2) reconsider that definition.
Note
Akin to Madmen: A Queer Critique of the Gay Rights Cases
Cases such as Lawrence v. Texas and Obergefell v. Hodges are the result of LGBTQ advocacy that has grown and developed at a stunning rate since its inception just over a century ago. As recently as the nineteenth century, our culture had no conception of sexual orientation as a facet of one’s identity. Now, sexual orientation serves as the core of a movement that uses it as a tool for advocacy. The prevailing approach has been to emphasize commonality with straight people, by associating LGBTQ people with values like monogamy, romance, respectability, and more. This strategy has led to a succession of LGBTQ legal victories in the last two decades. Unfortunately, those victories have sometimes reflected a narrow idea of what it means to be LGBTQ, premised on the values pushed by assimilationist advocates. This Note argues that the reliance on these values to justify extending rights to LGBTQ people runs the risk of making it more difficult to extend protection in areas where these values are absent.
Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment
In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and, given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.