What’s puzzling about Rick Hasen’s position on the originalist argument for why “corruption” means more than “quid pro quo” corruption is that he uses language like this — “New @RosenJeffrey piece channeling @Lessig on originalism and campaign finance is wrong” — when what he means is — “it won’t work.” He has no real response to the claim that in fact the framers used the word “corruption” in the way I (and others like Teachout) say. His only response — in fine — is that the conservatives on the court aren’t consistent enough to be moved by an originalist argument to a non-conservative end.
This feels both cynical and destructive of the ends I know Hasen and I share. I get that he wishes for a time when the Supreme Court says “it’s perfectly constitutional to pursue perfect equality in the political speech market.” I don’t support that position; I’m pretty confident Kagan won’t either; so it will be a long time till a Court could be constructed that would embrace it.
But given we both support aggregate limits, I don’t get why he’s so invested in denying an argument which at the very least would mark the originalists as both wrong and inconsistent if indeed they rejected it?
Not to mention, the possible good if at least one followed it.
I strongly disagree that I have no response to the argument that this is a good originalist argument. My article and post argues this is a bad originalist argument.
Whether you like originalism or not, I don’t think this is a strong originalist argument.
It is true that I also don’t think that this argument will sway the originalists on the Court, who I believe or originalists of convenience—but that was not my primary point.
So why am I “so invested” in this fight? Because I think it is a distraction from the kinds of arguments which are (1) forthright and (2) can actually move the ball forward. Dependence corruption gives people false hope that conservatives on the Court will be swayed by a gloss on original meaning.
Time to take on political equality and corruption (as understood by the Court) head on, and make the best arguments under these approaches.