More on Lessig, Rosen, Originalism, and McCutcheon

October 11th, 2013

Larry Lessig replies to Rick Hasen’s critique of his originalist CAC brief, arguing that Rick did not provide any refutation of his history.

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?

Rick replies, and calls his position a “bad originalist argument.”

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.

Rick’s position seems to be the majority position on the Election Law List Serve.

And Jeff Rosen joins the fray, with a piece in the New Republic titled Clarence Thomas Does Not Share the Founding Fathers’ View of Corruption. Jeff makes the same interpretive move Lessig does, and posits that how the Founders understood the term “corruption” should influence how the Court applies the “corruption” element identified during the Burger Court.

And a brief filed in McCutcheon, but ignored by the justices in the argument, suggests that this definition is inconsistent with the original understanding of the Framers of the Constitution.  … Solicitor General Donald Verrilli, unfortunately, was not able to challenge the conservative justices to live up to their own originalist principles by embracing this broader definition of corruption: to do so would have been to emphasize that Justice Kennedy’s definition of corruption in the Citizens United Case was inconsistent with the original understanding of the Framers. But no group, liberal or conservative, has challenged Lessig’s exercise in liberal originalism.

Jeff also cites to a Podcast with my good friend Ilya Shapiro who concedes the history.

On the contrary, in a recent podcast debate hosted by the National Constitution Center, Ilya Shapiro of the CATO Institute conceded to David Gans of the Constitutional Accountability Center that CAC and Lessig’s historical account of “dependence corruption” was historically accurate.

As he did in CATO’s brief, Shapiro went on to argue, however, that times have changed, and that new technologies for disclosing the identity of campaign contributors are a better way of avoiding “dependence corruption” than direct limits on contributions or expenditures.

But so what?  I’ve argued here and here why this argument makes no sense from an originalist perspective. I am a fan of originalism, but only to the extent that we are asking what words or documents meant at the time they were written. Neither Lessig, nor the CAC brief makes any effort to explain why this history is relevant beyond painting a broad picture of how corruption should be viewed.

Update: Ilya Shapiro writes in:

Wasn’t much of a concession. The History is accurate but irrelevant. Completely agree with your statement of so what.