The Foreign Emoluments Clause: Article I, Section 9, Clause 8

What is a bribe, what is a gift? In one culture, a gift to a public official will be considered a bribe. In another culture, the same gift might be treated as a generous expression of appreciation. Gifts can be one of the best parts of society: they create bonds and love and warmth in a non-transactional way. But gifts can also be dangerous, creating ties that lead to unfairness and preferences, instead of equal treatment under the law. Part of the job of building a political society is identifying and separating that which is corrupt from that which is not corrupt. Societies separate and sort “corrupt” and “non-corrupt” differently. In short: whether an offering is treated as corrupt and bad or generous and valuable depends upon cultural and political context, and on how we write our laws.  

As the history of the Emoluments Clause shows, the debate about the difference between which gifts are corrupt and which gifts are societally valuable made it into the Constitutional Convention. The early Americans made the radical choice, defying international convention.

The Emoluments Clause is remarkable for its stark departure from European diplomatic culture at the time of our Founding. The Framers chose to make a commitment to preventing corruption even though it complicated diplomacy between the fledgling United States and European nations. That choice alone is evidence of the Framers’ commitment to the independence of its public officials.

But when the Emoluments Clause alone is considered in the broader context of the Constitution, it becomes evident the Constitution contains within it a structural commitment to fighting corruption. Put simply, fighting corruption was a central reason for the Constitution. That matters for how we understand the Constitution’s meaning, and the one Clause, combined with the dozens of other clauses reflecting a strong anti-corruption principle, reflects back on each of those clauses and on the entire document itself, helping create a lens through which to understand what the best interpretation of the Constitution should be.

Just as a car is designed to go forward—and therefore any effort to understand a piece in the car assumes that function—the Constitution was designed to combat corruption, and therefore any effort to understand a piece in the document should fit with that function.

What is the evidence? There are nearly two dozen features of the original American Constitution that were designed to combat corruption. These clauses include the veto power, designed to limit the corrupting power of the Presidency; the Census, designed to keep Congressional districts from becoming “rotten”; the residency requirements for representatives, designed to keep rich adventurers from buying congressional seats, and the rules regarding transparency, to make sure there was a check on representatives dipping into the public till. One delegate to the Constitutional Convention called the provision to prevent public office from being sold or traded for political power the “corner-stone” of the new Constitution.

But also, during the Constitutional Convention and afterwards, the Framers talked about corruption more than almost anything—the word “corruption,” is written in his elegant handwriting fifty-four times in Madison’s famous notebook from the summer of 1787. The problems of corruption and bribery were the hot topic of the hot summer—they arose more often than even factions or violence. As Alexander Hamilton said in The Federalist No. 68, describing the work of writing the Constitution: “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”

Perhaps this Clause alone stands as a somewhat small clause, forcing one to sort out gifts and bribes in a particular context, but when it is placed in the larger puzzle of the Constitution, it is part of a pattern that shows that American Constitution was designed in order to fight corruption. 

In 1966, Congress enacted the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342. The 1966 Act provides elected and appointed officials and employees of the United States government with concrete guidance in regard to the receipt of gifts from foreign governments. Although there have been a few exceptional cases, primarily relating to President Obama’s Nobel Prize and federal employees’ working for foreign government universities, in general, over the last half century, there has been little need for the judiciary or others to expound on the Constitution’s Foreign Emoluments Clause; there has been little need because in most cases the propriety of foreign gifts is now tested by a detailed, modern federal statute, rather than by the more than 200-year-old and obscure Foreign Emoluments Clause.

Recently, the Foreign Emoluments Clause has enjoyed a surprising intellectual revival. This revival did not come about in response to a scandal or controversy connected to any specific foreign gifts. Instead, the Clause was the heart of a concerted intellectual effort, initiated by two prominent legal academics, Professors Lawrence Lessig and Zephyr Teachout, to rewrite the history of the Philadelphia Convention and our understanding of the Framers’ original intentions. As the new view has it, this Clause, in conjunction with other clauses, was part of the Framers’ anti-corruption project and that collectively these clauses gave rise to an implicit structural nontextual anti-corruption constitutional principle.

Other nontextual constitutional principles—such as separation of powers and federalism—have long been recognized, and such principles carry considerable weight, both in judicial decision-making and in scholarship. If an anti-corruption principle of similar weight were judicially recognized, then this principle—according to its intellectual proponents—would permit Congress to regulate contributions to congressional (and presidential) election campaigns, notwithstanding competing First Amendment concerns relating to freedom of association and free expression. Indeed, the new scholarship, and its focus on the Framers’ anti-corruption concerns, were cited favorably by the four dissenting Supreme Court Justices in Citizens United v. Federal Election Commission (2010) (Stevens, J.). But in his concurrence, Justice Scalia rejected the dissent’s position, in part, because the purported anti-corruption principle leaves “no limit to the Government’s censorship power.”

I think the new scholarship’s focus on the Framers’ deep concern in regard to bribery, divided loyalties, and corruption is entirely correct. The problem for the new scholarship is that the Framers’ abstract corruption-related concerns are not our law—the text of the Constitution is our law.

When turning to the Foreign Emoluments Clause’s Office . . . under the United States language, the new scholarship must confront a difficult interpretive question: does the Clause’s Office-related language apply to elected federal positions: e.g., members of Congress and the Presidency? If there are significant gaps within the reach of the Clause, that is, if the scope of the Clause’s Office-language reaches only appointed, as opposed to elected, federal positions, then it becomes difficult, if not impossible, to make the argument that the newly discovered nontextual anti-corruption constitutional principle founded on this Clause (and on other similarly worded clauses) extends or should extend to elected positions. The new scholarship’s nontextual anti-corruption principle cannot or ought not extend beyond the actual language of the Clause, particularly where, as here, the Framers could have easily added language (or used other suitable and more general language) making the Foreign Emoluments Clause squarely applicable to some or all elected positions.

Traditionally, precedents established by President George Washington and his administration carry great weight. President George Washington accepted and kept two diplomatic gifts, but he neither asked for nor received congressional consent. Washington’s conduct was widely reported in the press. So it would seem to indicate that he, his administration, Congress, and the public did not believe that the Clause applied to the presidency.

This interpretation is confirmed by Secretary Hamilton’s list. Hamilton was asked by the Senate to produce a financial statement listing all persons holding Office . . . under the United States and their salaries. Members of Congress were not on the list, nor was the President. With all due respect to Professor Lessig’s and Professor Teachout’s revised, modern understanding of the history and scope of the Constitution’s Foreign Emoluments Clause, Washington’s understanding, Hamilton’s understanding, and their eighteenth century contemporaries understanding must count for more. Because the original public meaning of the Foreign Emoluments Clause never embraced state or federal elected positions, any nontextual anti-corruption constitutional principle, to the extent one can be inferred from the Constitution’s structure and the Framers’ intent, cannot or, at least, should not reach elected positions. Thus, if Congress intends to regulate contributions to federal election campaigns, it cannot rely on the Foreign Emoluments Clause as a source of authority to do so.