Why does it matter what the founders thought about “corruption,” a term SCOTUS introduced into jurisprudence in the 1970s?

September 30th, 2013

Putting aside Larry Lessig’s cool Tumblr, which lists every single time the founding generation used the word “corruption,” I have to ask, what is the originalist value of this material? The entire jurisprudence of campaign finance law is a product of the 20th century.

McCutcheon’s brief provides a sketch of the corruption doctrine:

“[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.” FEC v. National Conservative PAC, 470 U.S. 480, 496-97 (1985) (“NCPAC”). “Corruption” is limited: “Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Id. at 497. Citizens United again limited “corruption” to quidpro-quo corruption, rejecting influence, access, gratitude, and leveling-the-playing-field as cognizable corruption. 130 S. Ct. at 909-12.

But, Lessig challenges in his CAC brief, McCutechon is applying a modern-day version of “corruption.”

Appellant McCutcheon and the Republican National Committee (collectively “McCutcheon”) contend that the federal aggregate contribution limits impose substantial burdens on First Amendment freedoms and cannot be justified by any constitutionally legitimate interest, and in particular, by the interest in avoiding corruption. McCutcheon Br. at 34-48. McCutcheon’s argument, however, depends upon a modern understanding of the term “corruption,” in sharp conflict with the term’s original meaning. The Framers viewed corruption as one of the greatest threats to government. They considered anti-corruption measures essential to an enduring republican system of government.

Under what mode of originalism are the founders views of something like “corruption” relevant to a term the Court invented during the Ford administration. What, if instead of using the word “corruption,” the Court used a different word. Maybe “influence?” Would a different Tumblr be appropriate? This isn’t about original meaning, or original intent, as far as I can tell.

This is the closest the brief gets to explaining the salience of this history:

Anti-corruption principles are a core element of the Constitution’s text, history, and structure, with overlapping constitutional provisions designed to serve as a bulwark against insidious corruption.

Elsewhere, the brief tries to connect the founding era to the Buckley-jurisprudence in this manner:

 On the contrary, the generous limits here ensure the kind of robust electoral debate the Framers viewed as critical, while also striking out at the kind of dependence corruption the Framers wrote the Constitution to prevent.

I gather they would contend that the First Amendment permits speech, subject to the corruption rationale identified in Buckley. Thus, to give context to this exception–which the Supreme Court labelled “corruption–we have to look to the generation of those who ratified the First Amendment. Is this right?

I would understand if Lessig researched what the founders thought about the “freedom of speech” (there is 1.5 pages on the First Amendment, but it doesn’t cite any founders), or even on elections, but focusing on a single word, “corruption,” to elaborate a theory on what the founders thought about campaign finance law, as applied to doctrine that emerged 40 years ago seems anachronistic.