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And not just the Criminal Code. Since Buckley v. Valeo (1976) it has been clear that Congress has the power to do more than just criminalize quid pro quo bribery. It also has the power to ban contributions that might raise the suspicion of quid pro quo bribery. Buckley held, and no decision has ever doubted, that Congress has the power to ban large contributions to a campaign, at least when it is reasonable for people to wonder whether those large contributions are really just disguised bribes. As the Court said in Buckley:

Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers, the Court found that the danger to “fair and effective government” posed by partisan political conduct on the part of federal employees charged with administering the law was a sufficiently important concern to justify broad restrictions on the employees’ right of partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of improper influence “is also critical… if confidence in the system of representative Government is not to be eroded to a disastrous extent.”3

Thus, even to avoid just the public’s perception that members may be selling their office, Congress has the power to limit the extent to which one person can signal his support (through contributions) for a political candidate.

This is not an insignificant power. The liberty to contribute to the campaign of another is an important free speech liberty. To be able to say, “I support Mr. Smith,” not only in words, but also with your money, is to be able to show just how much you support Mr. Smith. That liberty is the freedom to signal intensity, in a way that’s credible and real. No government should have the power to remove that liberty. At least not completely.

Yet despite the importance of that liberty, the Supreme Court has upheld Congress’s power to limit it so as to avoid the mere impression that something more than simple praise is going on. So important is it to our political system that the people not reasonably believe corruption is the game that Congress has the power to restrict this political speech.

Call this type 1 corruption. As I’ve described, the law regulating type 1 corruption permits Congress to block it (through bribery and illegal influence statutes), and to block contributions that raise a reasonable suspicion of it.

But if there’s a type 1 corruption, there is also type 2. And thirteen chapters into this book, this second sense should already be clear.

Here’s an example to refresh the recollection: think about the independence of a judiciary. The job of a judge is to follow the law. Some say that in Japan, judges follow more than the law.4 Japanese judges, these scholars argue, are sensitive not only to what the law says, but also to whether a particular decision is likely to upset the government. They pay attention to this extrajudicial concern because (at least these scholars claim) the government controls the promotion of judges on the basis of their “behavior.” And so, if you’re a Japanese judge and don’t want to end up in some regional court in the countryside, you need to be certain not to anger those who decide where you’ll serve by deciding a case in a way that goes against their (fairly transparent) interests.

I don’t know whether these charges are correct—they likely are, given the integrity of the source, but many (in Japan at least) deny it. But imagine they were correct, because if they were, they’d provide a perfect example of the second type of corruption I intend to flag here. One dependency, upon the law, is in tension with a second dependency, upon the will of the government. Or, again, the independence of the judges, the freedom to decide cases dependent only upon the law, is weakened because