Professor Rick Hasen accuses our client, Harvard Professor Lawrence Lessig, of practicing “bad originalis[m]” in urging the Justices of the Supreme Court, in McCutcheon v. FEC, to hold that the federal aggregate contribution limits combat corruption, as the Framers of the Constitution understood that term. This is a serious charge. Hasen is one of the leading lights of election law, and his arguments deserve close consideration. But Hasen is not an originalist, and his arguments about what is “good” and what is “bad” originalism, and his account of the Constitution’s text and history, all fall flat.
Sam Bagenstos: “[CAC's] argument isn’t an appeal to the kind of originalism conservative justices say they practice.”
For more on the problems with the dependence corruption originalism argument of Lessig and Teachout, see Bruce Edward Cain, Is Dependence Corruption the Solution to America’s Campaign Finance Problems?, Cal. L. Rev. (forthcoming 2013); Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle; The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout (both in Northwestern Law Review Colloquy)