Jeffrey Rosen is Wrong to Buy into Larry Lessig’s History on the Original Meaning of Corruption

Rosen says that if Clarence Thomas were a true originalist, he would allow for campaign finance regulation. Here, he buys into Larry Lessig’s arguments about the original meaning of corruption (“dependence corruption”) to the founding fathers.

I’ve been debating Lessig about “dependence corruption” for some time; see for example this Election Law Journal piece and the Harvard Law Review piece.

On the originalism point specifically, here’s what I wrote in ELJ (footnotes omitted):

Last year, the Montana Supreme Court tried to buck the U.S. Supreme Court’s decision in Citizens United by holding that the state of Montana provided enough evidence that independent corporate political spending could corrupt the state’s political process to justify corporate spending limits.70 While the case was pending before the Supreme Court, Lessig was alone in predicting that the Supreme Court would take the case and affirm the lower court, with his betting on Justice Kennedy switching sides from his Citizens United vote.71 The rest of us in the field predicted what actually happened:72 in American Tradition Partnership (ATP) v. Bullock,73 the U.S. Supreme Court smacked down the Montana Supreme Court in a 5–4 summary reversal in which all the Justices in the Citizens United majority reaffirmed the soundness of that precedent.

But Lessig was undeterred by the ATP smackdown. As late as January 2013, months after the Montana case, he was predicting that an ‘‘originalist’’ Justice (but not Justice Scalia, for whom he clerked) could well reverse course on Citizens United in  a future case.74 Lessig believes, following the work of Professor Zephyr Teachout,75 that ‘‘dependence corruption’’ is a form of corruption that would have been recognizable and accepted by the Framers as a legitimate basis to limit spending in elections.76

I leave to others the question whether or not the Lessig/Teachout interpretation of ‘‘corruption’’ to include concepts of political equality is consistent with originalist thinking.77 I will note however that in Federalist No. 52, the phrase ‘‘dependent upon the people alone’’ appears in a passage explaining why the Constitution set the qualifications for suffrage pertaining to voting for members of the U.S. House the same as the qualifications for voting for the state legislature. Publius states that allowing the state legislature the discretion to set the rules for voting for Congress ‘‘would have rendered too dependent on the State Governments, that branch of the federal government which ought to be dependent on the people alone.’’78 The language here has everything to do with federalism and the federal-state balance, and nothing to do with improper influence by those with money or other benefits over the Congress. Later in the pamphlet, Publius explains that biennial elections insure that Congress will be properly dependent on the people: ‘‘Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.’’79 There is no hint in this Federalist Paper about worries of monied classes influencing the people in their votes for Congress.

Regardless of the soundness of the originalist debate, the idea that the current Supreme Court will change course thanks to an undiscovered originalist argument is a pipe dream. Justice Thomas has been the Justice most hostile to campaign finance regulation in his time on the Court, leading the way toward deregulation,80 with Justice Alito closely following suit.81 Justice Kennedy has never wavered from his dissents in Austin, in which he said that the Michigan law limiting corporate spending in elections to PACs ‘‘is the rawest form of censorship,’’82 and in McConnell, in which he first declared that ingratiation and access are not corruption83—a point he made into a majority opinion in Citizens United.84 And Chief Justice Roberts has yet tovote to uphold a campaign finance limit while on the Court; his opinions have lamented FEC regulation as speech suppression, declaring ‘‘enough is enough.’’85

This Supreme Court majority won’t budge on this question despite original understandings of the meaning of ‘‘corruption,’’ and arguing that it will gives supporters false hope.

See also Bruce Edward Cain, Is Dependence Corruption the Solution to America’s Campaign Finance Problems?, Cal. L. Rev. (forthcoming 2013), draft available,< http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2267187 ; Guy-Uriel E. Charles, Corruption’s Temptation, Cal. L. Rev. (Forthcoming 2013), draft available, < http://ssrn.com/abstract=2272189> .

 

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