No. 12-536

In The

Supreme Court of the United States

SHAUN MCCUTCHEON AND THE REPUBLICAN NATIONAL

COMMITTEE,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Appeal From The United States District Court For

The District of Columbia

BRIEF AMICUS CURIAE OF 

PROFESSOR LAWRENCE LESSIG IN 

SUPPORT OF APPELLEE

DOUGLAS T. KENDALL

ELIZABETH B. WYDRA*

*Counsel of Record

DAVID H. GANS 

CONSTITUTIONAL 

ACCOUNTABILITY

CENTER

1200 18th St., NW, Ste 501

Washington, D.C. 20036 

(202) 296-6889

elizabeth@theusconstitution.org

Counsel for Amicus Curiae
i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ........................................... i 

TABLE OF AUTHORITIES ....................................iii 

INTEREST OF AMICUS CURIAE......................... 1

INTRODUCTION AND SUMMARY OF 

ARGUMENT............................................................. 1

ARGUMENT............................................................. 5

I. THE CONSTITUTION’S TEXT, HISTORY, 

AND STRUCTURE REFLECT THE 

FRAMERS’ BROAD INTEREST IN 

PREVENTING THE APPEARANCE AND 

REALITY OF CORRUPTION .....................5

A. In Drafting The Constitution, The 

Framers Were Keenly Concerned With 

Preventing Both “Dependence 

Corruption” And Quid Pro Quo 

Corruption .......................................5

B. The Text Of The Constitution Provides 

Specific Restrictions Designed To Limit 

Temptations And Opportunities For 

Corruption In Government................11

C. The Constitution’s Structure Was 

Designed To Erect “Every Practicable 

Obstacle” Against Corruption ............15
ii

II. CONSTITUTIONAL AMENDMENTS HAVE 

EXPANDED PROTECTION AGAINST 

CORRUPTION .....................................21

III. COURT PRECEDENT REFLECTS THE 

FRAMERS’ UNDERSTANDING THAT THE 

GOVERNMENT HAS BROAD AUTHORITY 

TO COMBAT CORRUPTION ..................26

CONCLUSION ....................................................... 32
iii

Cases

TABLE OF AUTHORITIES

Page

Arizona v. Inter Tribal Council,

133 S. Ct. 2247 (2013) .................................... 8, 19

Buckley v. Valeo,

424 U.S. 1 (1976) ........................................ passim

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) .............................. 3, 5, 23, 27

Ex Parte Yarbrough,

110 U.S. 651 (1884) ............................................ 27

Fed. Election Comm’n v. Nat’l Conservative PAC,

470 U.S. 480 (1985) ............................................ 28

McConnell v. Fed. Election Comm’n,

540 U.S. 93 (2003) .............................. 5, 11, 28, 30

Stromberg v. California,

283 U.S. 359 (1931) ............................................ 22

Constitutional Provisions and Legislative Materials

U.S. CONST. art. I, § 2, cl. 2 .................................... 14

U.S. CONST. art. I, § 3............................................. 23

U.S. CONST. art. I, § 3, cl. 3 .................................... 14

U.S. CONST. art. I, § 4, cl. 1 .................................... 19
iv

TABLE OF AUTHORITIES—continued

Page

U.S. CONST. art. I, § 6, cl. 2 .................................... 11

U.S. CONST. art. I, § 9, cl. 8 .................................... 13

U.S. CONST. art. II, § 1, cl. 5................................... 15

U.S. CONST. art. II, § 2, cl. 2.................................... 17

U.S. CONST. amend. I.............................................. 23

U.S. CONST. amend. XXVII..................................... 27

120 CONG. REC. (1974) ............................................ 30

Sen. Joseph Bristow, The Direct Election of

Senators, in CONGRESSIONAL SERIAL SET ISSUE

6177 (U.S. G.P.O. 1912) ............................... 25, 26

Books, Articles and Miscellaneous

18 Op. Off. Legal Counsel 13 (1994)...................... 13

AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION 

AND RECONSTRUCTION (1998)......................... 22, 26

Zachary S. Brugman, The Bipartisan Promise of

1776: The Republican Form and its Manner of

Election (2012) ..................................................... 20

THE DEBATES IN THE SEVERAL STATE CONVENTIONS 

ON THE ADOPTION OF THE CONSTITUTION (ELLIOT’S 

DEBATES) (Jonathan Elliot ed.) (1836).. 2, 6, 19, 20
v

TABLE OF AUTHORITIES—continued

Page

THE RECORDS OF THE FEDERAL CONVENTION OF

1787 (Max Farrand ed. 1966)...................... passim

Lisa Hill, Adam Smith and the Theme of

Corruption, 68 REV. POL. 636 (2006) .................. 14

Lawrence Lessig, A Reply to Professor Hasen,

126 HARV. L. REV. 61 (2013) ................................ 14

LAWRENCE LESSIG, REPUBLIC, LOST (2011)...... 11, 14

DAVID ROBERTSON, DEBATES AND OTHER

PROCEEDINGS OF THE CONVENTION OF VIRGINIA

(2d ed. 1805) (1788) ............................................ 13

THE FEDERALIST PAPERS

(Clinton Rossiter ed. 2003).......................... passim

Ralph A. Rossum, The Irony of Constitutional 

Democracy: Federalism, The Supreme Court, 

and the Seventeenth Amendment, 36 SAN DIEGO

L. REV. 671 (1999).......................................... 22, 23

James D. Savage, Corruption and Virtue 

at the Constitutional Convention,

56 J. POL. 174 (1994) ...................................... 6, 7, 9

Zephyr Teachout, The Anti-Corruption Principle,

94 CORNELL L. REV. 341 (2009)........................ 7, 18
vi

TABLE OF AUTHORITIES—continued

Page

John Joseph Wallis, The Concept of Systematic 

Corruption in American History, in CORRUPTION 

AND REFORM: LESSONS FROM AMERICA’S ECONOMIC 

HISTORY (Edward L. Glaeser & Claudia Goldin 

eds. 2006) .............................................................. 9
1

INTEREST OF AMICUS CURIAE1

Lawrence Lessig is Professor of Law at 

Harvard Law School and Director of the Edmond J. 

Safra Foundation Center for Ethics. He teaches 

constitutional law and institutional ethics, and his 

scholarship has analyzed corruption, the 

Constitution, and Court precedent. Professor 

Lessig is the author of REPUBLIC, LOST: HOW MONEY 

CORRUPTS CONGRESS—AND A PLAN TO STOP IT 

(2011) and dozens of law review articles on 

constitutional law, including What an Originalist 

Would Understand “Corruption” to Mean, CAL. L. 

REV. (forthcoming 2013).

Professor Lessig’s recent research into the 

Founders’ conception of “corruption,” which 

includes a catalogue of the instance and context of 

each use of the word “corruption” during the 

Founding debates, is the core of this brief.

INTRODUCTION AND 

SUMMARY OF ARGUMENT

Appellant McCutcheon and the Republican 

National Committee (collectively “McCutcheon”) 

contend that the federal aggregate contribution 

limits impose substantial burdens on First

1 The parties have consented to the filing of this brief and 

their letters of consent have been filed with the Clerk. Under 

Rule 37.6 of the Rules of this Court, amicus states no counsel 

for a party authored this brief in whole or in part, and no 

counsel or party made a monetary contribution intended to 

fund the preparation or submission of this brief. No person 

other than amicus curiae or his counsel made a monetary 

contribution to the brief’s preparation or submission.
2

Amendment freedoms and cannot be justified by 

any constitutionally legitimate interest, and in 

particular, by the interest in avoiding corruption. 

McCutcheon Br. at 34-48. McCutcheon’s argument, 

however, depends upon a modern understanding of 

the term “corruption,” in sharp conflict with the 

term’s original meaning.

The Framers viewed corruption as one of the 

greatest threats to government. They considered 

anti-corruption measures essential to an enduring 

republican system of government. As George 

Mason warned his fellow delegates at the 

Constitutional Convention, “if we do not provide 

against corruption, our government will soon be at 

an end.” 1 THE RECORDS OF THE FEDERAL 

CONVENTION OF 1787, 392 (Max Farrand ed. 1966) 

(“FARRAND’S RECORDS”). Thus, in drafting the 

Constitution, the Framers sought to ensure that 

“corruption was more effectually guarded against, 

in the manner this government was constituted, 

than in any other that had ever been formed.” 4

DEBATES IN THE SEVERAL STATE CONVENTIONS ON 

THE ADOPTION OF THE FEDERAL CONSTITUTION 302 

(Jonathan Elliot ed. 1836) (Pinckney).

The Framers had a very specific conception 

of the term “corruption” in mind, one at odds with 

McCutcheon’s more modern understanding of that 

term. For the Framers, “corruption” predicated of 

institutions as well as individuals, and when 

predicated of institutions, was often constituted by 

an “improper dependence.” Having seen, for 

example, the English Parliament corrupted by its 

dependence on the King, the Framers crafted the
3

Constitution to avoid such improper dependencies. 

In the case of the House in particular, they sought 

an institution “dependent on the people alone,” THE 

FEDERALIST NO. 52, at 294 (Madison) (Clinton 

Rossiter ed. 1961). Any conflicting dependence—

such as upon foreign patrons—would “corrupt” that 

intended dependence, and in turn threaten to 

corrupt the nation’s fledgling republican 

institutions.

Amicus’s review of Framing-era usage of the 

word “corruption”—catalogued in the Appendix, 

which serves as a companion to the online 

interactive database http://ocorruption.tumblr.com, 

and submitted to this Court for the first time—

demonstrates that the need to prevent such 

“dependence corruption” dominated the discussions 

of “corruption” over the adoption and ratification of 

the Constitution. This research establishes that (1) 

the Framers’ dominant concern was the corruption 

of the institutions of government, not individuals; 

(2) the Framers recognized that democratic 

institutions could be corrupted through developing 

conflicting dependencies, as they had in England; 

and (3) corruption of individual officeholders by 

bribery or other forms of quid pro quo corruption 

was a real, but secondary, concern.

This historically more complete conception of 

corruption is perfectly consistent with this Court’s 

precedents, including Citizens United v. FEC, 558

U.S. 310 (2010), and fully supports the

constitutionality of the federal aggregate 

contribution limits challenged here. The aggregate 

limits, which permit an individual to make a total
4

of $123,200 in contributions in each two-year 

election cycle ($48,600 to candidates and $74,600 to 

political parties and non-party political 

committees), play a necessary role in securing a 

government free from corrupting dependence on 

high-dollar donors. By preventing massive hard 

money contributions to candidates and their 

political parties, the aggregate limits aim to 

prevent the very sort of improper dependence on 

outside forces that the Framers wrote the 

Constitution to check.

Since Buckley v. Valeo, 424 U.S. 1 (1976), it 

has been settled law that the government has 

broad leeway to regulate campaign contributions, 

including by establishing aggregate contribution 

limits, to limit opportunities for corruption. While 

the limited burden on the freedom of speech in this 

case counsels intermediate scrutiny at most, any 

level of First Amendment scrutiny should take into 

account that the government’s interest in 

combating real and apparent corruption is deeply 

rooted in the Constitution’s text, history, and 

structure. Amicus respectfully submits that 

Congress’s aggregate contribution limits serve this 

long-established, anti-corruption interest by 

diminishing candidates’ and political parties’ 

dependence on high-dollar donors, reducing 

opportunities for individual corruption, and 

restoring public trust in government.
5

ARGUMENT

I. THE CONSTITUTION’S TEXT, 

HISTORY, AND STRUCTURE REFLECT 

THE FRAMERS’ BROAD INTEREST IN 

PREVENTING THE APPEARANCE

AND REALITY OF CORRUPTION.

Under established law, the government’s 

interest in preventing the appearance and reality of 

corruption is properly implemented by imposing 

limits on campaign contributions, direct money 

transfers that pose the gravest risk of corruption. 

See Buckley, 424 U.S. at 26; McConnell v. FEC, 540

U.S. 93, 143-44 (2003); Citizens United, 558 U.S. at

357; see also FEC Br. at 17-19, 26-28, 31-33. The 

text, history, and structure of the Constitution

provide strong support for a broad interest that 

justifies contribution limits—both on the size and 

aggregate total amount—in order to prevent 

corruption.

A. In Drafting The Constitution, The 

Framers Were Keenly Concerned 

With Preventing Both “Dependence 

Corruption” And Quid Pro Quo 

Corruption.

Corruption was a core concern that informed 

much of the Framers’ design of the Constitution. 

Alexander Hamilton explained that in drafting the 

Constitution, “[n]othing was more to be desired 

than that every practicable obstacle should be 

opposed to cabal, intrigue, and corruption.” THE 

FEDERALIST No. 68, at 380. Because the Framers
6

understood that “[t]hese most deadly adversaries of 

republican government” could be “expected to make 

their approaches from more than one quarter,” id., 

they designed the Constitution to include as many 

protections against corruption as possible. 

“[T]here was near unanimous agreement [among 

the delegates at the convention] that corruption 

was to be avoided, that its presence in the political 

system produced a degenerative effect, and that the 

new Constitution was designed in part to insulate 

the political system from corruption.” James D. 

Savage, Corruption and Virtue at the Constitutional 

Convention, 56 J. POL. 174, 181 (1994).

The Framers viewed the American 

Revolution as a fresh start from the corruption they 

saw as endemic to government in England. See 1

FARRAND’S RECORDS 380 (“I admire many parts of 

the British constitution and government, but I 

detest their corruption.”) (Mason). In their view, 

the core problem in England was that Parliament 

was not dependent on the people because of its 

conflicting dependence on the King. The King’s

power to select a large number of members from 

“rotten boroughs” and to dole out patronage 

appointments corrupted the House of Commons, 

preventing it from serving as the voice of the 

people. See 2 DEBATES IN THE SEVERAL STATE 

CONVENTIONS 264 (explaining that this 

“dependence on [the King]” was “the true source of 

the corruption which has so long excited the severe 

animadversion of zealous politicians and patriots”)

(Hamilton).
7

Because of their experiences with England, a 

central preoccupation of the Framers was ensuring 

that the democratic components of the new republic 

they were creating would be dependent on the 

people alone. To achieve this goal, they both 

limited opportunities for corruption and provided 

the federal government with powers adequate to 

stamp out any new forms of corruption that might 

arise. Indeed, the decision to hold a Constitutional 

Convention separate from the ordinary processes 

established under the Articles of Confederation was 

in part a reaction to the perceived corruption of 

state legislatures. See 2 FARRAND’S RECORDS 288 

(“What led to the appointment of this Convention? 

The corruption & mutability of the Legislative 

Councils of the States.”) (Mercer).

James Madison’s notes of the Constitutional 

Convention record that 15 delegates used the term 

“corruption” no fewer than 54 times, and seven of 

the most prominent delegates, including Madison, 

Governeur Morris, George Mason, and James 

Wilson, accounted for the vast majority of those 

usages. Savage, 56 J. POL. at 177. Corruption was 

an express topic of concern on almost a quarter of 

the days that the members convened. Zephyr 

Teachout, The Anti-Corruption Principle, 94

CORNELL L. REV. 341, 352 (2009).

But in speaking of “corruption,” the Framers 

thought in institutional terms. Corruption 

“referred ‘less to the actions of individuals’ than to 

the general moral health of the body politic judged 

according to ‘distributions of wealth and power, 

relationships between leaders and followers, the
8

source of power, and the moral right of rulers to 

rule.” Lisa Hill, Adam Smith and the Theme of 

Corruption, 68 REV. POL. 636, 636-37 (2006). The 

corruption the Framers were concerned about was, 

like the corruption Adam Smith criticized, “more of 

a systemic problem” than an individual one. Id. at

650. Hence, one of the Framers’ primary concerns 

in writing the Constitution was to ensure that the 

critical institutions of the new federal 

government—in particular the House of

Representatives and the President—were 

“dependent upon the people alone.” THE 

FEDERALIST NO. 52, at 294 (Madison). See also 

Arizona v. Inter Tribal Council, 133 S. Ct. 2247,

2258 (2013) (quoting Madison). As their 

experiences in England taught them, the Framers

knew that avoiding conflicting dependencies that 

would compromise the nation’s new republican 

institutions was critical to preventing corruption.

The Framers were well aware that “[i]n 

republics, persons elevated from the mass of the 

community by the suffrages of their fellow-citizens 

to stations of great pre-eminence and power may 

find compensations for betraying their trust.” THE 

FEDERALIST NO. 22, at 117 (Hamilton). In line with 

first principles of republican government, the 

answer to this endemic problem was to create a 

system of government, dependent on “the great 

body of the people” and “not [on] an inconsiderable

proportion or a favored class of it,” THE FEDERALIST 

NO. 39, at 209 (Madison), in which “every practical 

obstacle should be opposed to cabal, intrigue, and 

corruption.” THE FEDERALIST NO. 68, at 380 

(Hamilton).
9

The Framers were not detached from the 

rough and tumble world of politics, and they 

approached the problems of corruption with a realworld understanding of political systems and their 

potential to either foster or restrain corruption. 

“When the delegates spoke of corruption at the 

convention they did so in a manner that reflected 

classical republican concerns about dependency, 

cabals, patronage, unwarranted influence, and 

bribery.” Savage, 56 J. POL. at 181.

But among these various “classical 

republican concerns,” some were more prominent 

than others. Empirical evidence from the debates 

over the adoption and ratification of the 

Constitution demonstrate that the Framers were 

more “concerned” with institutional, rather than 

individual corruption, and that improper 

“dependence” was most familiar type of 

institutional corruption.

The Appendix to this brief collects every use 

of the term “corruption” within the standard 

Framing-era documents. Of the 325 usages 

identified, in more than half—57% of cases—the 

Framers were discussing corruption of institutions, 

not individuals. By contrast, discussion of quid pro 

quo corruption was rare—only six instances, all of 

them focused on corruption of individuals. See 

Appendix at 23a. No doubt these two types of 

corruption were related. “By eliminating 

systematic corruption, they hoped to mitigate the 

problems of venal corruption as well.” John Joseph 

Wallis, The Concept of Systematic Corruption in
10

American History, in CORRUPTION AND REFORM: 

LESSONS FROM AMERICA’S ECONOMIC HISTORY 23, 25 

(Edward L. Glaeser & Claudia Goldin eds., 2006). 

But whether or not related, they were still distinct.

As the Appendix shows, while the Framers 

understood that corruption could arise from acts of 

quid pro quo corruption by officeholders, it could 

also arise when government institutions had an 

improper, conflicting dependence. In at least 29 

instances, the Framers spoke of corruption in 

exactly this way—five times the frequency of 

discussion of quid pro quo corruption. See 

Appendix at 21a-23a. Thus, the historical record 

demonstrates that the Framers understood the 

term “corruption” was not limited to instances of 

quid pro quo corruption, and was not ordinarily 

predicated of individuals, as opposed to 

institutions.

As explained below, the Framers’ concern 

about corruption resulted in several distinct 

constitutional restrictions designed to reduce 

temptations and opportunities for corruption 

among public officials and block influences that 

would tend to compromise a “dependen[cy] on the 

people alone.” THE FEDERALIST No. 52, at 294 

(Madison). In addition, the Framers kept in mind 

their goal of discouraging corruption when 

designing the structure of the three branches of the

federal government and the Constitution’s system 

of representative democracy.
11

B. The Text Of The Constitution

Provides Specific Restrictions

Designed To Limit Temptations And

Opportunities For Corruption In

Government.

Whether or not a public official or an 

institution of government was actually tainted by a 

corrupting force, the public might reasonably 

question whether their representatives’ loyalty 

remained with the public interest. Accordingly, the 

Framers did more than simply criminalize bribery 

of public officials—they wrote into the Constitution 

specific provisions that would prevent actual and 

apparent dependence as well as quid pro quo 

corruption. For the Framers, the “best means of 

prevention” was “to identify and to remove the 

temptation.” McConnell, 540 U.S. at 153.

The Ineligibility and Emoluments Clause. 

The Constitution provides that “[n]o Senator or 

Representative shall, during the Time for which he 

was elected, be appointed to any civil Office under 

the Authority of the United States, which shall 

have been created, or the Emoluments whereof 

shall have been encreased during such time.” U.S. 

CONST. art. I, § 6, cl. 2. This constitutional 

restriction reflects the Framers’ deep anxiety that 

legislators’ temptation to secure future employment 

might cloud their duty to act in the public interest. 

“The core corruption the Framers wanted to avoid 

was Parliament’s loss of independence from the 

Crown because the king had showered members of 

Parliament with offices and perks that few would 

have had the strength to resist.” LAWRENCE
12

LESSIG, REPUBLIC, LOST 19 (2011). At the 

Convention, the delegates explained that this 

provision would “preserv[e] the Legislature as pure 

as possible, by shutting the door against 

appointments of its own members to offices, which 

was one source of its corruption.” 1 FARRAND’S 

RECORDS 386 (Rutlidge). The Framers did not want 

members of Congress to develop a conflicting 

dependency on the Executive Branch.

The delegates’ decision that an express 

constitutional “precaution ag[ainst] intrigue was 

necessary” stemmed from their observations of the 

British experience, “where men got into 

Parl[iament] that they might get offices for 

themselves or their friends. This was the source of 

the corruption that ruined their Gov[ernment].” 1

FARRAND’S RECORDS 376 (Butler). George Mason 

supported the exclusion “as a corner stone in the 

fabric” of the Constitution and was “for shutting 

the door at all events ag[ainst] corruption,” 

particularly in light of the “venality and abuses”

that took place in this regard in Great Britain. Id. 

During ratification debates over the Constitution,

James McHenry explained that the purpose of the 

provision was “to avoid as much as possible every 

motive for Corruption.” James McHenry, Speech

before the Maryland House of Delegates (Nov. 29,

1787), in 3 FARRAND’S RECORDS 148.

The Foreign Gifts Clause. The Constitution 

also mandates that “no Person holding any Office of 

Profit or Trust under them, shall, without the 

Consent of the Congress, accept of any present, 

Emolument, Office, or Title, of any kind whatever,
13

from any King, Prince, or foreign State.” U.S. 

CONST. art. I, § 9, cl. 8. This constitutional 

restriction, designed to ensure that officers were 

not dependent upon foreign kings, was a reaction to 

several instances between the Revolution and the 

Convention when American diplomats received 

valuable gifts from foreign dignitaries.2 By

reaching more broadly than simply outlawing 

bribery, these restrictions served as prophylactic 

measures that also targeted the appearance of 

corruption.

Describing these foreign gifts and the public 

debate that followed, Edmund Randolph explained 

during the ratification debates in Virginia that “[i]t 

was thought proper, in order to exclude corruption 

and foreign influence, to prohibit any one in office 

from receiving or holding any emoluments from 

foreign states.” DAVID ROBERTSON, DEBATES AND 

OTHER PROCEEDINGS OF THE CONVENTION OF 

VIRGINIA 330 (2d ed. 1805) (1788). These foreign 

gifts to prominent Americans in the 1780s were not 

considered quid pro quo corruption—Congress 

would surely not have allowed the diplomats to 

retain the gifts otherwise—but the gifts

2 In 1780, U.S. Ambassador to France Arthur Lee received 

from King Louis XVI of France a portrait of the King set in 

diamonds atop a gold snuff box. See Applicability of 

Emoluments Clause to Employment of Gov. Employees by 

Foreign Public Univ., 18 Op. O.L.C. 13, 16 n.4 (1994). Lee 

turned the gift over to Congress, which resolved that he could 

keep it. Id. In 1785, Benjamin Franklin received a similar 

gift from the King of France, which Congress also allowed him 

to keep. Id. At the same time, Congress also allowed 

Secretary of Foreign Affairs John Jay to keep a gift of a horse 

from the King of Spain. Id.
14

nonetheless sent the wrong message to the 

American people, thus creating an appearance of 

corruption. Moreover, the Framers wanted to 

exclude “foreign influence” that could compromise 

the government’s independence (or, more precisely, 

the government’s intended dependence on the 

American people). See Lawrence Lessig, A Reply to 

Professor Hasen, 126 HARV. L. REV. F. 61, 70 (2013) 

(“The Framers didn’t want a Congress that was a 

farm league for the French Riviera.”). Indeed, the 

Framers had seen how the British government had 

become dependent on gifts from the French crown, 

“even if there was no clear quid pro quo tied to the 

gifts.” LESSIG, REPUBLIC, LOST, at 19.

Eligibility Requirements for Elected Office. 

The Constitution’s restrictions on candidates for 

elected office were designed to serve a gate-keeping 

function against possible sources of corruption. 

Beginning with Congress, the Constitution requires 

that a Representative or Senator must “be an 

Inhabitant of that State in which he shall be 

chosen.” U.S. CONST. art. I, § 2, cl. 2; id. at § 3, cl.

3. This residency requirement was a response to 

the fear that wealthy non-residents would purchase 

elected office. George Mason explained that “[i]f 

residence be not required, Rich men of 

neighbouring States, may employ with success the 

means of corruption in some particular district and 

thereby get into the public Councils after having 

failed in their own State.” 2 FARRAND’S RECORDS

218. Representatives were also required to be

“seven Years a Citizen,” U.S. CONST. art. I, § 2, cl.

2, and Senators “nine Years a Citizen,” U.S. CONST.
15

art. I, § 3, cl. 3, because of concern over foreign 

intrigue.

The Constitution’s eligibility requirements 

for President are even more stringent, reflecting 

the Framers’ concern that this office was 

particularly susceptible to corruption. James 

Madison thought that because the Presidency “was 

to be administered by a single man . . . corruption 

was more within the compass of probable events.”

2 FARRAND’S RECORDS 66. Building on this concern, 

the Constitution requires that the President be “a 

natural born Citizen,” and have “been fourteen 

Years a Resident within the United States.” U.S.

CONST. art. II, § 1, cl. 5.

For all of the provisions described above, the 

Framers went beyond merely prohibiting bribery 

and treason, and instead created rules designed to 

prevent even the appearance of corruption or the 

loss of independence that could potentially arise 

from foreign gifts, a plum administrative position, 

or a foreign-born President. Even without any 

direct evidence of corruption in the fledgling 

national government, the Framers determined that 

these broad prophylactic measures were sufficiently 

important to include in our Nation’s charter.

C. The Constitution’s Structure Was

Designed To Erect “Every

Practicable Obstacle” Against

Corruption.

While the structure of American 

constitutional democracy was obviously inspired by
16

more than just anti-corruption ideals, many of the 

central features of our republican government 

were, in fact, significant anti-corruption measures. 

These measures sought to ensure that the people’s 

representatives remained as independent from 

corrupting forces as possible—“dependent on the 

people alone.” THE FEDERALIST No. 52, at 294 

(Madison).

For example, the Framers devised an 

innovative system of checks and balances to 

prevent the appearance and reality of corruption as 

well as to establish separation of powers and 

enhance policy outcomes. See generally THE 

FEDERALIST No. 51 (explaining the need for checks 

and balances) (Madison). Responding to the fear 

that it would be possible to “purchase the 

guardians of the people,” James Madison explained 

that “[t]he improbability of such a mercenary and 

perfidious combination of the several members of 

government, standing on as different foundations 

as republican principles will well admit, and at the 

same time accountable to the society over which 

they are placed, ought alone to quiet this 

apprehension.” THE FEDERALIST No. 55, at 313. 

The delegates’ belief that multiple, overlapping 

structures were necessary to cabin possible 

corruption was particularly evident in their 

discussion of the veto power,3 the treaty power,4 

and the appointment power.5

3 James Madison believed that the power of the veto would 

allow the President to check “the Great & the wealthy who in 

the course of things will necessarily compose []the Legislative 

body.” 2 FARRAND’S RECORDS 52. But even as the veto could 

serve as a check against corruption in coordinate branches,
17

Elections were also a central part of the 

Framers’ anti-corruption constitutional design. 

Drawing on the experience of England, where “the

the delegates understood that a legislative override was also 

necessary to keep the veto power from itself becoming a tool of 

corruption. The delegates thus reduced the number of 

Senators needed to override a veto from three-quarters to 

two-thirds, for “[i]f 3⁄4 be required, a few Senators having 

hopes from the nomination of the President to offices, will 

combine with him and impede proper laws.” Id. at 586 

(Gerry).

4 The Constitution provides that the President “shall have

Power . . . to make Treaties,” but limits this power by 

requiring that the President obtain “the Advice and Consent 

of the Senate.” U.S. CONST. art. II, § 2, cl. 2. Even with this 

check in place, the delegates recognized “the danger of putting 

the essential rights of the Union in the hands of so small a 

number as a majority of the Senate, representing perhaps, not 

one fifth of the people.” 2 FARRAND’S RECORDS 548 (Gerry). 

Fearing that “[t]he Senate will be corrupted by foreign 

influence,” id., the delegates increased the ratification 

threshold from a simple majority to “two thirds of the 

Senators present.” U.S. CONST. art. II, § 2, cl. 2. 5 The Constitution provides that the President “shall 

nominate, and by and with the Advice and Consent of the 

Senate, shall appoint” certain executive officials and members 

of the federal judiciary. U.S. Const. art. II, § 2, cl. 2. The 

Framers gave the appointment power to the President 

because, in part, they believed that he would “have fewer 

personal attachments to gratify than a body of men who may 

each be supposed to have an equal number; and will be so 

much the less liable to be misled by the sentiments of 

friendship and of affection.” THE FEDERALIST NO. 76, at 424 

(Hamilton). But they also gave to the Senate the power to 

give its “Advice and Consent” as a “check upon a spirit of 

favoritism in the President,” one that “would tend greatly to 

prevent the appointment of unfit characters from,” among 

other things, “family connection” or “personal attachment.” 

Id. at 425.
18

electors [we]re so corrupted by the representatives, 

and the representatives so corrupted by the 

Crown,” THE FEDERALIST No. 41, at 227-28 

(Madison), the Framers wanted to avoid financial 

dependency of one branch of government upon 

another and make certain both branches were 

dependent on the people alone. See Teachout, 94

CORNELL L. REV. at 362-63. To achieve that goal, 

Article I, § 2 provides that “the House of 

Representatives shall be composed of Members

chosen every second Year by the People of the 

several States,” a provision Madison called the 

“fundamental article of republican government.” 

THE FEDERALIST NO. 52, at 294.

Thus, as Madison explained, the House 

would have “an immediate dependence on, and an 

intimate sympathy with, the people. Frequent 

elections are unquestionably the only policy by 

which this dependence and sympathy can be 

effectually secured.” Id. at 295. The Framers 

ensured that Congress would be “dependent on the 

people alone,” id. at 294, by providing for elections 

“FREELY by the WHOLE BODY of the people 

every SECOND YEAR.” THE FEDERALIST NO. 41, at

228 (Madison); see THE FEDERALIST No. 57, at 319

(“Who are to be the electors of the federal

representatives? Not the rich, more than the poor; 

not the learned, more than the ignorant; not the 

haughty heirs of distinguished names, more than 

the humble sons of obscure and unpropitious 

fortune. The electors are to be the great body of the 

people of the United States.”) (Madison).
19

To give effect to these fundamental 

principles, the Framers gave to Congress the power 

to regulate the “Times, Places, and Manner of 

holding Elections” for Congress, U.S. Const. art. I,

§ 4, cl. 1, a broad, comprehensive power over all the

mechanics of federal elections. See Inter Tribal 

Council, 133 S. Ct. at 2253-54. The Framers 

granted to Congress the power to establish uniform 

ground rules for federal elections “to prevent 

corruption or undue influence,” 2 DEBATES IN THE 

SEVERAL STATE CONVENTIONS 535 (M’Kean), and to 

ensure that Congress would be dependent on the 

people alone, not factions in the states that might 

seek to “mould their regulations as to favor the 

candidates they wished to succeed.” 2 FARRAND’S 

RECORDS 241 (Madison); see 3 DEBATES IN THE 

SEVERAL STATE CONVENTIONS 11 (observing that 

“the power of Congress to make the times of 

elections uniform in all the states, will destroy of 

the continuance of any cabal”) (Nicholas). The 

Elections Clause gave Congress the power to 

guarantee the integrity of federal elections and 

prevent new forms of corruption from undermining 

the Constitution’s promise that the government 

would be “‘dependent on the people alone.’” Inter 

Tribal, 133 S. Ct. at 2258 (quoting THE FEDERALIST 

NO. 52).

Finally, the Framers’ decision to select the 

President through the Electoral College was 

expressly intended to limit “the danger of cabal and 

corruption.” 2 FARRAND’S RECORDS 500 (Mason). 

Alexander Hamilton explained that if the President 

were “appointed by the Legislature” the executive 

“would be tempted to make use of corrupt influence
20

to be continued in office.” Id. at 524; see 2

FARRAND’S RECORDS 31, 404 (Morris). Hamilton 

later added that “the executive should be 

independent for his continuance in office on all but

the people themselves,” otherwise he might “be

tempted to sacrifice his duty to his complaisance for 

those whose favor was necessary to” obtain 

reelection. THE FEDERALIST No. 68, at 412. The 

delegates’ solution was to select the President 

though the Electoral College, which, James Wilson 

explained, was “as nearly home to the people as is 

practicable.” 2 DEBATES IN THE SEVERAL STATE 

CONVENTIONS 512.

The Framers debated and rejected a proposal 

that would have permitted the Senate to break a 

deadlock in the Electoral College, concluding that 

“[r]eferring the appointment to the Senate lays a 

certain foundation for corruption & aristocracy,” by 

establishing a “change in the mode of appointing 

the President which makes him dependent on the 

Senate.” 2 FARRAND’S RECORDS 512, 524 

(Williamson). James Wilson urged defeat of the 

proposal, observing that because of his “dependence 

on them,” “the President will not be the man of the 

people as he ought to be, but the Minion of the 

Senate.” Id. at 522, 523. This dependency on the 

Senate, rather than the people, would corrupt the 

Presidency. See Zachary S. Brugman, The 

Bipartisan Promise of 1776: The Republican Form 

and its Manner of Election 33 (2012) (available at 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=

2192705) (discussing the “many Framing fears that 

the President’s dependence on the Senate for 

election would result in corruption”). Thus, as
21

Hamilton observed, the Framers refused to make 

“the appointment of the President to depend on any 

preexisting bodies of men who might be tampered 

with beforehand to prostitute their votes; but they 

have referred it in the first instance to an 

immediate act of the people of America, to be 

exerted in the choice of persons for the temporary 

and sole purpose of making the appointment.” THE 

FEDERALIST NO. 68, at 381.

In sum, the Framers of the Constitution 

created a constitutional system that reflects a 

broad interest in combating actual and apparent 

political corruption. The anti-corruption principle 

at the Constitution’s core bolsters the government’s 

argument that Congress’ reasonable aggregate 

contribution limits are justified by the 

government’s need to prevent real and apparent 

corruption of the political process. See FEC Br. at

31-42, 51-55.

II. CONSTITUTIONAL AMENDMENTS 

HAVE EXPANDED PROTECTION 

AGAINST CORRUPTION.

Just as the federal government has 

attempted to create new political safeguards 

against ever-evolving threats to the integrity of 

elections and government through regulation and 

legislation, see FEC Br. at 2-9, generations of 

Americans have added to the Framers’ original 

constitutional protections against corruption 

through the amendment process.

First Amendment. The most obvious 

example of an anti-corruption amendment is the
22

First Amendment, which shields the voice of the 

people and the pen of the press from government 

censorship, allowing for healthy criticism and 

transparency in politics. In adding the Amendment 

to the Constitution, the Framers were mindful of 

the “special structural role of freedom of speech in a 

representative democracy.” AKHIL REED AMAR, THE 

BILL OF RIGHTS: CREATION AND RECONSTRUCTION 25 

(1998). “The maintenance of the opportunity for 

free political discussion to the end that government 

may be responsive to the will of the people and that 

changes may be obtained by lawful means, an 

opportunity essential to the security of the 

Republic, is a fundamental principle of our 

constitutional system.” Stromberg v. California,

283 U.S. 359, 369 (1931). To make sure that

Congress was dependent on the people, the First 

Amendment not only protects “freedom of speech, 

or of the press” but also guarantees “the right of the 

people . . . to petition the Government for a redress 

of grievances.” U.S. CONST. amend. I. Accordingly, 

while the First Amendment protects individual 

rights, it also serves as a bulwark against 

corruption and self-dealing incumbents.

Given the First Amendment’s historic role in 

enabling Americans to stand up to corrupt and 

wrongheaded officials and policies, it is important 

that Congress’ regulation of campaign 

contributions not encroach upon the anti-corruption 

principles of the First Amendment. Significantly, 

the federal law at issue here places no limits on the 

amount of money individuals can spend on 

campaign advocacy and only modest limits on the 

amount individuals may give to candidates, parties,
23

and political action committees, allowing an 

individual to contribute a total of $123,200 in each 

two year-election cycle. FEC Br. at 9, 21-23. It 

does not “deprive” anyone “of the right to use 

speech to strive to establish worth, standing, and 

respect for the speaker’s voice.” Citizens United,

558 U.S. at 340-41. It does not erect a “ban on 

speech,” nor does it “repress speech by silencing 

certain voices.” Id. at 339. On the contrary, the 

generous limits here ensure the kind of robust

electoral debate the Framers viewed as critical, 

while also striking out at the kind of dependence 

corruption the Framers wrote the Constitution to 

prevent. See Buckley, 424 U.S. at 28-29.

Seventeenth Amendment. At the Founding, 

state legislatures were vested with the power to 

choose Senators for the people. U.S. Const. art. I, §

3. Because of this fact, as well as the body’s 

smaller size and less frequent elections, there was 

concern at the Convention that “the Senate will be 

more likely to be corrupt than the H. of Reps.” 2

FARRAND’S RECORDS 279 (Randolph). Indeed, the

Framers insisted that revenue bills originate in the 

House because the Senate “should . . . have less to 

do with money matters.” Id. In the event of 

corruption in the Senate, the Framers depended on 

“the House of Representatives, with the people on 

their side, . . . to bring back the Constitution to its 

primitive form and principles.” THE FEDERALIST 

NO. 63, at 358 (Madison).

More than a century later, in adding the 

Seventeenth Amendment to the Constitution, the 

American people decreed a structural change was
24

necessary: the Senate, too, must be dependent on 

the people alone. This change reflected the 

American people’s concern that the Senate had 

been corrupted by its dependence on state 

legislatures. The Seventeenth Amendment was 

ratified in 1913 following a number of public 

corruption scandals in the Senate that shook the 

confidence of the Nation. In perhaps the most 

infamous case, Senator William A. Clark of 

Montana confessed to making a “personal 

disbursement” of more than $140,000 to Montana 

state legislators. He was forced to resign his seat 

in 1899 after a unanimous Senate committee report 

called for his expulsion. Ralph A. Rossum, The 

Irony of Constitutional Democracy: Federalism, The 

Supreme Court, and the Seventeenth Amendment,

36 SAN DIEGO L. REV. 671, 707 (1999). Senator 

William Lorimer of Illinois was actually expelled by 

the Senate in 1912 after reports that four state 

legislators had been bribed to change their vote on 

his behalf. Id. Between 1866 and 1900, there were 

nine Senate investigations of alleged bribery in 

Senate elections. Id. During the 58th Congress

(1903-05), fully ten percent of the Senate was either 

on trial or subjected to legislative investigation. Id.

In the wake of these appalling instances of 

corruption, many believed that a structural change 

was necessary. In 1911, in response to these 

scandals, Senator Joseph Bristow of Kansas 

proposed an amendment to the Constitution 

requiring that Senators be “elected by the people.”6

6 Sen. Joseph Bristow, The Direct Election of Senators, in

CONGRESSIONAL SERIAL SET ISSUE 6177 (U.S. G.P.O. 1912).
25

His focus was reining in the corruption of the

Senate by corporate interests:

With the development during recent 

times of the great corporate interests 

of the country, and the increased 

importance of legislation relating to 

their affairs, they have tenaciously 

sought to control the election of 

Senators friendly to their interests. 

The power of these great financial and 

industrial institutions can be very 

effectively used in the election of 

Senators by legislatures, and they 

have many times during recent years 

used that power in a most 

reprehensible and scandalous manner. 

They have spent enormous amounts of 

money in corrupting legislatures to 

elect to the Senate men of their own 

choosing.7

The concerns of the Framers of the 

Seventeenth Amendment over corruption and 

improper dependence on the states were similar to 

many of the concerns held by the delegates at the 

Constitutional Convention. See, e.g., 1 FARRAND’S 

RECORDS 140 (“If the national legislature are 

appointed by the state legislatures, demagogues 

and corrupt members will creep in.”) (Gerry).

Twenty-seventh Amendment. The Twentyseventh Amendment, which prohibits any law 

varying the compensation of members of Congress

7 Id.
26

from taking effect “until an election of 

representatives shall have intervened,” U.S. CONST. 

amend. XXVII, began its constitutional journey as 

the Second Amendment proposed by the First 

Congress. AMAR, BILL OF RIGHTS, at 17-19. The 

proposal was designed “to limit the ability of 

Congressmen to line their own pockets at public 

expense.” Id. at 18. While the measure failed to 

garner enough state support in the 1790s when it 

was first introduced, it was ratified in 1992 as the 

Twenty-seventh Amendment—another example of 

constitutional design seeking to restrain 

government self-dealing and corruption.

These three Amendments demonstrate that 

a broad government interest in combating actual 

and apparent corruption is a thread that runs 

through American democracy from the Founding to 

the present.

III. COURT PRECEDENT REFLECTS THE 

FRAMERS’ UNDERSTANDING THAT 

THE GOVERNMENT HAS BROAD 

AUTHORITY TO COMBAT 

CORRUPTION.

Consistent with the constitutional text, 

history, and structure discussed above, this Court 

has long recognized the compelling nature of the 

government’s interest in preventing both 

corruption and the appearance of corruption. Over 

a century ago, the Court observed that “[i]n a 

republican government, like ours, where political 

power is reposed in representatives of the entire 

body of the people, chosen at short intervals by
27

popular elections, the temptations to control these 

elections . . . by corruption is a constant source of 

danger.” Ex Parte Yarbrough, 110 U.S. 651, 666 

(1884).

This Court has repeatedly “sustained limits 

on direct contributions in order to ensure against 

the reality or appearance of corruption.” Citizens 

United, 558 U.S. at 357. Consistent with the 

Constitution’s text and history, this Court has 

recognized that government may regulate 

campaign contributions in order to reduce 

opportunities for corruption and prevent candidates 

and officeholders from becoming dependent on high 

dollar donors. As Citizens United recognized, even 

though “few if any contributions to candidates will 

involve quid pro quo arrangements,” regulation of 

campaign contributions is “preventative,” id., 

ensuring that candidates are not influenced to act 

“by the prospect of financial gain to themselves or 

infusions of money into their campaigns.” FEC v. 

Nat’l Conservative PAC, 470 U.S. 480, 497 (1985). 

The essential point is that even where “actual 

corrupt contribution practices ha[ve] not been 

proved, Congress ha[s] an interest in regulating the 

appearance of corruption that is ‘inherent in a 

regime of large individual financial contributions.’” 

McConnell, 540 U.S. at 298 (Kennedy, J., 

concurring in part and dissenting in part) (quoting 

Buckley, 424 U.S. at 27). Indeed, the Constitution 

itself contains a number of similar prophylactic 

protections to ensure a government “dependent on 

the people alone.” THE FEDERALIST NO. 52, at 294 

(Madison).
28

Consistent with these anti-corruption first 

principles, this Court in Buckley held that the First 

Amendment permits the federal government to 

limit the size and aggregate amount of 

contributions in federal elections. The Court held 

that Congress was “surely entitled to conclude” 

that “contribution ceilings were a necessary 

legislative concomitant to deal with the reality or 

appearance of corruption inherent in a system 

permitting unlimited financial contributions, even 

when the identities of the contributors and the 

amounts of their contributions are fully disclosed.” 

Buckley, 424 U.S. at 28. The Buckley Court held 

that the aggregate contribution limits were 

necessary to make the basic scheme of contribution 

limits effective, describing them as “no more than a 

corollary of the basic individual contribution 

limitation that we have found constitutionally 

valid.” Id. at 38.

Given the overriding constitutionally-based 

interest in ensuring a system of federal elections 

free from corrupting influences and dependencies, 

Congress did not have to permit an individual to 

make an unlimited number of campaign 

contributions, but could impose a “quite modest 

restraint” on total aggregate contributions “to 

prevent evasion of the $1,000 contribution 

limitation by a person who might otherwise 

contribute massive amounts to a particular 

candidate through the use of unearmarked 

contributions to political committees likely to 

contribute to that candidate, or huge contributions 

to the candidate’s political party.” Id.
29

The aggregate contribution limitations 

challenged by McCutcheon, which are simply an 

updated version of the $25,000 limit upheld in 

Buckley, are plainly constitutional efforts to 

prevent corruption. The aggregate limits continue 

to serve a critical role in Congress’ effort to regulate 

large campaign contributions to “deal with the 

reality or appearance of corruption inherent in a 

system permitting unlimited financial 

contributions.” Buckley, 424 U.S. at 28. Congress 

properly concluded that aggregate limits play a 

necessary role in securing a Congress free from 

corrupting dependence on high-dollar donors. That 

judgment is strongly supported by the 

Constitution’s text and history, which recognized 

such improper dependence as a root form of 

corruption.

McCutcheon argues that the aggregate limits 

are no longer necessary in light of recent changes to 

the federal campaign finance laws, see McCutcheon 

Br. at 34-48, but these arguments blinker reality. 

As the district court noted, if the aggregate limits 

did not exist, “an individual might, for example, 

give half-a-million dollars in a single check to a 

joint fundraising committee comprising a party’s 

presidential candidate, the party’s national party 

committee, and most of the party’s state party 

committees.” McCutcheon v. FEC, 893 F. Supp. 2d

133, 140 (C.D.D.C. 2012); see id. at 135-36 (“[A]n 

individual might contribute $3.5 million to one 

party and its affiliated committees in a single

election cycle.”). Without aggregate limits, huge 

hard money contributions of the sort federal

campaign finance laws were designed to prevent
30

would likely return. The result would be increased 

dependence on an even tinier group of donors 

willing to bankroll campaigns. McCutcheon’s 

argument turns the Constitution, which was 

designed to prevent such improper dependence, on 

its head.

Under Buckley, “the inquiry turns on whether 

the Legislature has established that the regulated 

conduct has inherent corruption potential, thus

justifying the inference that regulating the conduct 

will stem the appearance of real corruption.” 

McConnell, 540 U.S. at 297-98 (Kennedy, J.,

concurring in part and dissenting in part). Here it

has. Congress enacted aggregate contribution

limits to “curtail the influence of excessive political

contributions by any single person,” 120 Cong. Rec.

27,224 (1974), finding “multiple instances in which

contributions to numerous separate entities had

been made at the request of a particular

candidate.” FEC Br. at 4. Absent these limits,

individuals could, as they did before the passage 

of the contributions limits upheld in Buckley,

“contribute massive amounts to a particular 

candidate through the use of unearmarked

contributions to political committees likely to

contribute to that candidate, or huge contributions 

to the candidate’s political party.” Buckley, 424 U.S.

at 38; see FEC Br. at 35-43.

Aggregate contribution limits thus continue 

to serve the essential function of ensuring the 

integrity of federal elections. By limiting the 

ability of individuals to make massive political 

contributions to candidates and political parties,
31

aggregate contribution limits check both actual and 

apparent corruption “stemming from public 

awareness of the opportunities for abuse inherent 

in a regime of large individual financial 

contributions,” Buckley, 424 U.S. at 27, and prevent 

an unhealthy dependence on high-dollar donors. In 

this respect, aggregate limits help ensure a system 

of financing federal elections dependent on “the 

great body of the people” and “not [on] an 

inconsiderable proportion or a favored class of it,” 

THE FEDERALIST NO. 39, at 209 (Madison).

* * *

Anti-corruption principles are a core element

of the Constitution’s text, history, and structure, 

with overlapping constitutional provisions designed 

to serve as a bulwark against insidious corruption. 

These principles translate into a strong 

governmental interest in combating real and 

apparent corruption in politics and government —

including the corruption of individuals, vis-à-vis 

quid pro quo corruption, and the corruption of 

institutions, vis-à-vis improper dependence. 

Consistent with the anti-corruption principles that 

shaped the design of the Constitution, the Court 

should uphold the power of the federal government 

to establish aggregate limits on campaign 

contributions to combat corruption.
32

CONCLUSION

For the foregoing reasons, the Court should 

affirm the judgment of the district court.

Respectfully submitted,

Douglas T. Kendall

Elizabeth B. Wydra*

*Counsel of Record 

David H. Gans 

CONSTITUTIONAL 

ACCOUNTABILITY CENTER

1200 18th Street, NW, Suite 501

Washington, D.C. 20036 (202)

296-6889 

elizabeth@theusconstitution.org

Counsel for Amicus Curiae

July 2013
1a

APPENDIX

Catalogue of Use of “Corruption” In

Founding Constitutional Debates1

This appendix catalogues the instances in which 

the word “corruption” was used in debates about the 

creation and ratification of the Constitution, grouped 

by type of corruption referenced. It is a companion to 

an online, interactive database, located at 

http://ocorruption.tumblr.com, which contains the 

full quotes as well as links to the original source so 

that the quote may be viewed in context. This 

appendix also explains the methodology and sources 

used to create the catalogue and database, and 

summarizes the results.

Sources

• The Library of Congress online archives of 

Max Farrand’s The Records of the Federal 

Convention of 17872 and Jonathan Elliot’s The 

Debates in the Several State Convention on the 

Adoption of the Federal Constitution3.

• ConSource’s4 online version of The Federalist

Papers5, together with their archives of Anti1 This appendix and the online database were compiled with the 

research assistance of Dennis Courtney and Zach D’Amico. 2 http://memory.loc.gov/ammem/amlaw/lwfr.html. All URLs in 

this document refer to the versions accessed on July 1, 2013. 3 http://memory.loc.gov/ammem/amlaw/lwed.html 4 http://www.consource.org/
2a

Federalist and Pro-Federalist writings 6 , and 

records of the state ratification debates7.

• Letters, newspaper articles, and other printed

matter from the “Commentaries on the 

Constitution” section8 of the digital edition of 

the Documentary History of the Ratification of 

the Constitution9.

Methodology

Each source was searched for all uses of variants 

of the word “corrupt” (e.g. “corruption,” “corrupted,” 

etc.). Each usage was read in context and categorized 

as either referring primarily to corruption of an 

individual, or to corruption of an entity10. Repeated 

uses within the same discussion were counted and 

categorized only once, unless the sense of usage

5

http://consource.org/library/?type=document&topics=&collection

s=the-federalist-papers&deep=&sort=date

6

http://consource.org/library/?type=document&topics=&collection

s=anti-federalist-and-pro-federalist-papers&deep=&sort=date

7

http://consource.org/library/?type=document&topics=&collection

s=state-ratification-debates&deep=&sort=date

8

http://rotunda.upress.virginia.edu/founders/default.xqy?keys=R

NCN-print-03&mode=TOC

9 http://rotunda.upress.virginia.edu/founders/RNCN.html

10 Two classes of references were excluded from the collection: 

uses of the term in statutory language specific to attainder 

(“corruption of blood”), and descriptions of moral decline

unrelated to any government function (e.g. general “corruption 

of public morals”).
3a

changed. Each usage was reviewed separately by two 

parties, and in the case of difficult or ambiguous 

entries, the two worked, through discussion and 

further research, to establish a classification.

Uses of “corruption” were also flagged if they 

located corruption in an “improper dependence” of 

one thing on another, either explicitly or implicitly, 

or if a “quid pro quo” exchange was clearly 

implicated. Although these themes are suggested in 

many quotations, tags were not applied unless they 

were unambiguously present.

Summary statistics

Of 325 recorded usages, 56% (183) referred to 

corruption of an entity, while 44% (142) spoke of 

corruption of an individual. There were 5 mentions of 

“quid pro quo” corruption, and 29 mentions of 

“improper dependence” corruption. All “quid pro quo” 

usages referred to individual corruption. On the 

other hand, only 9 of 29 (31%) references to 

“improper dependence” corruption located that 

corruption in an individual, with 20 of those 29 (69%) 

references speaking of corruption of an entity.

If one classifies references by the branch of 

government that is hosting the corruption, most 

usages discuss corruption of the legislative branch. 

Of these, about half, but fewer than half, refer to 

“individual” corruption.
4a

Instances of “Corruption” Usage, Grouped By Type of

Corruption Referenced, Date, and Speaker

Entity Corruption

02/27/1783 James Madison

04/20/1787 John Adams

05/28/1787 Charles Pinckney

05/28/1787 Charles Pinckney

06/01/1787 James Wilson (notes of Rufus King)

06/06/1787 Alexander Hamilton

06/07/1787 John Dickinson (notes of Rufus King)

06/09/1787 Elbridge Gerry (notes of James Madison)

06/16/1787 James Wilson (notes of James Madison)

06/18/1787 Alexander Hamilton (notes of Rufus King)

06/18/1787 Alexander Hamilton (notes of James

Madison)

06/18/1787 Alexander Hamilton (notes of James

Madison)

06/19/1787 James Madison (notes of Robert Yates)

06/20/1787 John Lansing (notes of James Madison)

06/22/1787 George Mason (notes of Robert Yates)
5a

Entity Corruption (continued)

06/22/1787 Nathaniel Gorham (notes of Robert Yates)

06/22/1787 Alexander Hamilton (notes of Robert

Yates)

06/22/1787 Pierce Butler (notes of Robert Yates)

06/23/1787 James Wilson (notes of James Madison)

06/23/1787 George Mason (notes of James Madison)

06/23/1787 John Rutledge (notes of James Madison)

06/23/1787 Pierce Butler (notes of John Lansing)

06/26/1787 Letter in the Philadephia Independent

Gazetteer

06/28/1787 James Madison

07/06/1787 John Dickinson (notes of James Madison)

07/10/1787 Elbridge Gerry (notes of James Madison)

07/17/1787 Gouverneur Morris

07/17/1787 James Wilson

07/17/1787 George Mason

07/19/1787 Edmund Randolph (notes of James

Madison)

07/25/1787 James Madison

08/07/1787 James Madison (notes of Rufus King)

08/08/1787 Nathaniel Gorham (notes of James

Madison)

08/13/1787 Elbridge Gerry
6a

Entity Corruption (continued)

08/13/1787 Edmund Randolph (notes of James

Madison)

08/14/1787 John Mercer (notes of James Madison)

08/14/1787 Gouverneur Morris (notes of James

Madison)

08/14/1787 Edmund Randolph (notes of James

Madison)

08/14/1787 Hugh Williamson (notes of James

Madison)

08/14/1787 George Mason

08/17/1787 Elbridge Gerry (notes of James Madison)

08/23/1787 Edmund Randolph

08/24/1787 Gouverneur Morris (notes of James

Madison)

08/24/1787 Roger Sherman (notes of James Madison)

08/29/1787 James Madison

09/04/1787 Gouverneur Morris (notes of James

Madison)

09/04/1787 James Wilson (notes of James Madison)

09/04/1787 George Mason (notes of James Madison)

09/05/1787 Hugh Williamson (notes of James

Madison)

09/07/1787 James Madison
7a

Entity Corruption (continued)

09/08/1787 Gouverneur Morris (notes of James

Madison)

09/08/1787 Alexander Hamilton (notes of James

Madison)

09/08/1787 Elbridge Gerry (notes of James Madison)

09/12/1787 George Mason

09/17/1787 Benjamin Franklin (notes of James

Madison)

09/28/1787 Tench Coxe

09/29/1787 Curtius

10/05/1787 Centinel I

10/10/1787 Federal Farmer III

10/17/1787 Caesar II

10/18/1787 Pelatiah Webster

10/20/1787 Louis Guillaume Otto

10/24/1787 Centinel II

10/25/1787 Newport Herald

11/02/1787 Alexander Hamilton

11/08/1787 Pelatiah Webster

11/15/1787 Cincinnatus III - to James Wilson, 

Esquire

11/20/1787 George Staunton (via Thomas Lee

Shippen)
8a

Entity Corruption (continued)

11/21/1787 Alexander Hamilton

11/22/1787 James Madison

11/28/1787 Federal Republican - Review of the

Constitution

11/29/1787 Luther Martin

11/29/1787 James McHenry

12/04/1787 John Smilie (notes of Anthony Wayne)

12/04/1787 James Wilson (notes of Thomas Lloyd)

12/05/1787 William Findley (notes of James Wilson)

12/06/1787 John Smilie

12/07/1787 James Madison

12/11/1787 James Wilson (notes of Thomas Lloyd)

12/11/1787 James Wilson (notes of Thomas Lloyd)

12/12/1787 Benjamin Rush (in newspaper report)

12/14/1787 Alexander Hamilton

12/14/1787 Alexander Hamilton

12/18/1787 Minority dissent of the Pennsylvania

Convention

12/20/1787 Thomas Jefferson

12/24/1787 Timothy Pickering

12/31/1787 Thomas Jefferson

12/31/1787 Isaac Stearns

01/09/1788 John Brown Cutting
9a

Entity Corruption (continued)

01/16/1788 John Taylor (notes of Theophilius Parson)

01/16/1788 Charles Pinckney

01/16/1788 Charles Pinckney

01/18/1788 James Madison

01/19/1788 James Madison

01/21/1788 John Taylor (notes of Theophilius Parson)

01/23/1788 James Madison

02/04/1788 Thomas Thacher

02/13/1788 James Madison

02/19/1788 James Madison

02/26/1788 John Trumbull

02/27/1788 James Madison

02/27/1788 Marcus II - Norfolk and Portsmouth

Journal

03/01/1788 James Madison

03/01/1788 James Madison

03/01/1788 James Madison

03/01/1788 James Madison

03/05/1788 John Jay

03/05/1788 John Jay

03/07/1788 Alexander Hamilton

03/08/1788 Alexander Hamilton
10a

Entity Corruption (continued)

03/08/1788 Alexander Hamilton

03/12/1788 Alexander Hamilton

03/12/1788 Alexander Hamilton

03/21/1788 Alexander Hamilton

03/29/1788 James Freeman to Theophilus Lindsey

04/01/1788 Alexander Hamilton

04/16/1788 A Farmer

04/30/1788 Address to New York, Virginia

Conventions

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/05/1788 Pierce Butler
11a

Entity Corruption (continued)

05/10/1788 Nathan Dane

06/03/1788 George Nicholas

06/05/1788 James Madison

06/05/1788 Richard Lee

06/07/1788 Edmund Randolph

06/07/1788 Edmund Randolph

06/07/1788 Edmund Randolph

06/10/1788 Edmund Randolph

06/11/1788 William Grayson

06/11/1788 William Grayson

06/11/1788 George Mason

06/11/1788 George Mason

06/11/1788 George Mason

06/11/1788 William Grayson

06/12/1788 Patrick Henry

06/13/1788 William Grayson

06/13/1788 John Tyler

06/14/1788 Edmund Pendleton

06/17/1788 Edmund Randolph

06/21/1788 Alexander Hamilton (notes of John

McKesson)

06/21/1788 Melancton Smith (notes of John

McKesson)
12a

Entity Corruption (continued)

06/21/1788 Alexander Hamilton (notes of John

McKesson)

06/21/1788 Melancton Smith (notes of John

McKesson)

06/21/1788 Alexander Hamilton (notes of John

McKesson)

06/23/1788 John Jay (notes of John McKesson)

06/23/1788 Robert Livingston (notes of John

McKesson)

06/24/1788 Richard Harison (notes of John

McKesson)

06/24/1788 John Lansing (notes of Francis Childs)

06/24/1788 Edmund Randolph

06/24/1788 Robert Livingston (notes of John

McKesson)

06/24/1788 Gilbert Livingston (notes of John

McKesson)

06/25/1788 George Clinton (notes of John McKesson)

06/25/1788 James Innes

06/27/1788 Melancton Smith (notes of John

McKesson)

06/27/1788 Robert Livingston (notes of John

McKesson)

06/30/1788 Samuel Jones (notes of John McKesson)
13a

Entity Corruption (continued)

07/01/1788 Timothy Bloodworth

07/02/1788 Gilbert Livingston (notes of John

McKesson)

07/02/1788 Alexander Hamilton (notes of John

McKesson)

07/03/1788 Nathan Dane

07/05/1788 Samuel Jones (notes of Richard Harison)

07/07/1788 Samuel Jones (notes of Richard Harison)

07/25/1788 William Davie

07/26/1788 William Davie

07/30/1788 William Lenoir

06/01/1789 Brutus III

06/08/1789 Brutus IV

06/08/1789 Brutus IV

07/16/1789 Henry Gibbs

08/19/1789 James Madison

01/18/1798 Albert Gallatin

01/23/1798 William Findley

12/24/1799 James Madison

01/23/1800 Abraham Baldwin

12/25/1802 Gouverneur Morris

02/24/1815 Gouverneur Morris

03/20/1816 Rufus King
14a

Individual Corruption

10/02/1778 George Mason

05/23/1783 Daniel Carroll

05/30/1783 George Mason

06/04/1787 Pierce Butler (notes of Rufus King)

06/06/1787 Elbridge Gerry (notes of Yates and King)

06/06/1787 James Madison

06/18/1787 Alexander Hamilton (notes of James

Madison)

06/23/1787 George Mason (notes of Robert Yates)

07/18/1787 James Madison

07/19/1787 Gouverneur Morris (notes of James

Madison)

07/19/1787 Hugh Williamson (notes of James

Madison)

07/20/1787 George Mason (notes of James Madison)

07/20/1787 Gouverneur Morris (notes of James

Madison)

07/20/1787 Gouverneur Morris (notes of James

Madison)

07/20/1787 James Madison

08/08/1787 George Mason (notes of James Madison)

08/09/1787 James Wilson (notes of James McHenry)

08/23/1787 Nathaniel Gorham

09/03/1787 George Mason (notes of James Madison)
15a

Individual Corruption (continued)

09/06/1787 Alexander Hamilton

09/07/1787 Pierce Butler (notes of James Madison)

09/12/1787 Elbridge Gerry (notes of James Madison)

09/12/1787 Pennsylvania Gazette

10/17/1787 A Democratic Federalist

10/18/1787 A Citizen of Philadelphia - Remarks

11/01/1787 An Old Whig V

11/02/1787 Alexander Hamilton

11/20/1787 Thomas Lee Shippen

11/22/1787 James Madison

11/28/1787 Federal Republican - Review of the

Constitution

11/29/1787 James McHenry

11/29/1787 Luther Martin

11/29/1787 Luther Martin

12/03/1787 A Landholder V

12/03/1787 John Smilie (notes of James Wilson)

12/04/1787 James Wilson (notes of Thomas Lloyd)

12/04/1787 James Wilson (notes of Thomas Lloyd)

12/10/1787 Thomas McKean (notes of Thomas Lloyd)

12/11/1787 James Wilson (notes of Thomas Lloyd)

12/14/1787 Alexander Hamilton
16a

Individual Corruption (continued)

12/14/1787 Alexander Hamilton

12/14/1787 Alexander Hamilton

12/18/1787 Minority dissent of the Pennsylvania

Convention

12/24/1787 Poplicola - Boston Gazette

01/05/1788 Samuel Osgood

01/09/1788 Tamony - Virginia Independent Chronicle

01/12/1788 James Madison

01/16/1788 Charles Pinckney

01/16/1788 John Rutledge

01/21/1788 Boston Gazette and the Country Journal

01/21/1788 Martin Kingsley (notes of Theophilus

Parson)

01/23/1788 Philadelphiensis VIII

01/31/1788 Aristides - Remarks on the Proposed Plan

01/31/1788 Aristides - Remarks on the Proposed Plan

01/31/1788 Aristides - Remarks on the Proposed Plan

02/02/1788 Mercy Warren

02/06/1788 Samuel Stillman

02/13/1788 James Madison

02/13/1788 James Madison

02/20/1788 Marcus I - Norfolk and Portsmouth

Journal
17a

Individual Corruption (continued)

02/26/1788 Centinel XVI

03/08/1788 Alexander Hamilton

03/08/1788 Alexander Hamilton

03/12/1788 Alexander Hamilton

03/18/1788 Alexander Hamilton

03/19/1788 Alexander Hamilton

03/20/1788 Brutus XV

03/21/1788 Alexander Hamilton

03/26/1788 Alexander Hamilton

04/01/1788 Alexander Hamilton

04/15/1788 John Dickinson

04/28/1788 George Washington

05/01/1788 Address of minority of Maryland

Convention

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican
18a

Individual Corruption (continued)

05/02/1788 Federal Farmer - Letters to the

Republican

05/02/1788 Federal Farmer - Letters to the

Republican

06/05/1788 Patrick Henry

06/07/1788 Edmund Randolph

06/07/1788 Patrick Henry

06/07/1788 Francis Corvin

06/09/1788 Patrick Henry

06/09/1788 Patrick Henry

06/10/1788 John Marshall

06/10/1788 James Monroe

06/10/1788 James Monroe

06/11/1788 George Mason

06/11/1788 James Madison

06/12/1788 William Grayson

06/12/1788 Patrick Henry

06/13/1788 George Mason

06/13/1788 Edmund Randolph

06/13/1788 Patrick Henry

06/13/1788 Patrick Henry

06/13/1788 William Grayson

06/14/1788 Patrick Henry
19a

Individual Corruption (continued)

06/17/1788 Edmund Randolph

06/17/1788 Edmund Randolph

06/18/1788 James Monroe

06/18/1788 James Monroe

06/20/1788 Melancton Smith (notes of John

McKesson)

06/21/1788 Melancton Smith (notes of John

McKesson)

06/21/1788 William Grayson

06/21/1788 John Williams (notes of John McKesson)

06/23/1788 John Jay (notes of John McKesson)

06/23/1788 Robert Livingston (notes of John

McKesson)

06/23/1788 Richard Harison (notes of John

McKesson)

06/24/1788 John Lansing (notes of Francis Childs)

06/24/1788 Alexander Hamilton (notes of Francis

Childs)

06/25/1788 Melancton Smith (notes of John

McKesson)

06/25/1788 Robert Livingston (notes of John

McKesson)

06/27/1788 Alexander Hamilton (notes of John

McKesson)
20a

Individual Corruption (continued)

07/02/1788 John Lansing (notes of John McKesson)

07/02/1788 Richard Harison (notes of John

McKesson)

07/02/1788 John Lansing (notes of John McKesson)

07/02/1788 Alexander Hamilton (notes of John

McKesson)

07/02/1788 George Clinton (notes of John McKesson)

07/03/1788 Nathan Dane

07/05/1788 Alexander Hamilton

07/05/1788 Alexander Hamilton

07/05/1788 Alexander Hamilton

07/05/1788 Alexander Hamilton

07/25/1788 James Iredell

07/28/1788 Timothy Bloodworth

07/28/1788 Samuel Spencer

07/28/1788 James Iredell

07/28/1788 James Iredell

07/28/1788 James Iredell

07/30/1788 William Lenoir

06/08/1789 Brutus IV

07/05/1789 Cato V

08/13/1789 Fisher Ames

08/19/1789 Roger Sherman
21a

Individual Corruption (continued)

12/21/1798 James Madison

02/21/1805 Joseph Hopkinson

03/01/1821 William Smith

08/23/1823 James Madison

03/18/1824 Rufus King

11/17/1830 James Madison

Improper Dependence — Explicit

07/19/1787 Gouverneur Morris (notes of James

Madison)

09/08/1787 Gouverneur Morris (notes of James

Madison)

03/12/1788 Alexander Hamilton

Improper Dependence — Implicit

07/17/1787 Gouverneur Morris

07/20/1787 George Mason (notes of James Madison)

07/20/1787 Gouverneur Morris (notes of James

Madison)

08/24/1787 Gouverneur Morris (notes of James

Madison)
22a

Improper Dependence — Implicit (continued)

09/04/1787 Gouverneur Morris (notes of James

Madison)

09/29/1787 Curtius

10/05/1787 Centinel I

11/02/1787 Alexander Hamilton

11/22/1787 James Madison

11/29/1787 Luther Martin

12/04/1787 James Wilson (notes of Thomas Lloyd)

12/10/1787 Thomas McKean (notes of Thomas Lloyd)

12/11/1787 James Wilson (notes of Thomas Lloyd)

12/18/1787 Minority dissent of the Pennsylvania

Convention

12/24/1787 Timothy Pickering

01/16/1788 Charles Pinckney

03/21/1788 Alexander Hamilton

04/28/1788 George Washington

06/05/1788 James Madison

06/24/1788 Richard Harison (notes of John

McKesson)

07/26/1788 William Davie

07/28/1788 James Iredell

06/01/1789 Brutus III

06/08/1789 Brutus IV
23a

Improper Dependence — Implicit (continued)

06/08/1789 Brutus IV

03/20/1816 Rufus King

Quid-Pro-Quo Corruption

08/08/1787 George Mason (notes of James Madison)

11/29/1787 Luther Martin

01/21/1788 Boston Gazette and the Country Journal

06/13/1788 George Mason

07/25/1788 James Iredell