Josh Blackman blogs.
I guess the way I would think of it is similar to Josh’s: would the Framers have considered it to be an “abridgement” of “freedom of speech” to limit campaign spending (or contributions)? Maybe in CAC’s view I’m asking the wrong originalist question, though I am focusing on the “key words and phrases” in the First Amendment. Could be—as they say, I’m no originalist.
I just found it curious that Larry has built his edifice around the construct of “dependence corruption” from Federalist No. 52, but the kind of “dependence corruption” described in that pamphlet has nothing to do with the kind of institutional skewing of politics towards donors which concerns Larry and CAC. Further, the last part of CAC’s post seems to be about traditional (quid pro quo) corruption, which Lessig in Republic, Lost says he’s not concerned with. From my HLR review:
82 If the people are not corrupt, how is the system corrupt? Lessig explains:
[Dependence corruption is] a corruption practiced by decent people, people we shouldrespect, people working extremely hard to do what they believe is right, yet decent people working with a system that has evolved the most elaborate and costly bending of democratic government in our history. . . . This corruption has two elements . . . . The first element is bad governance, which means simply that our government doesn’t track the expressed will of the people, whether on the Left or on the Right. . . . The second element is lost trust: when democracy seems a charade, we lose faith in its process. . . .Participation thus declines, especially among the sensible middle. Policy gets driven by the extremists at both ends. (pp. 8–9)
I guess I’m just confused about the scope of both the originalist argument and its connection to the First Amendment.