I’ve blogged at some length about Larry Lessig’s CAC brief in McCutcheon, which offers an “originalist” approach to resolve the case–specifically, explaining what the founding generation thought of the term “corruption” to give meaning to a phrase introduced into the jurisprudence by the Burger Court. In my first post, I ventured at a guess why this history is relevant (I don’t think it is):

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 came across a post by Lessig on his TUMBLR, titled More on an “originalist” understanding of “corruption,” which basically reflects my hypothesis:

The fundamental question for a judge is always this: What sanctions the Court in its overturning an act of Congress? The easy and obvious reply in these cases is the First Amendment — as interpreted by the Court. According to that interpretation, the regulation of “corruption” escapes the ordinary restriction against speech regulation. So the important question is what “corruption” means.

I’m with Larry for the first three sentences, but he loses me with the last. The important question is what “freedom of speech” means. That is the constitutional provision that “sanctions the Court in its overturning an act of Congress.” Certainly “corruption” has been interpreted by the Court as an exception to the First Amendment’s restriction on speech regulation. But there is absolutely nothing in Buckley and its progeny to explain how the Court viewed “corruption” in terms of its 18th Century meaning.

Further, I don’t agree with his point that incorporating the original understanding would be consistent with these precedents:

Reading “corruption” as the Framers would have would not force the Court to reverse any decision it has already made. It would not, for example, undermineCitizens United. So again, the consistent originalist is not constrained to ignore the Framers view. Which is again why s/he should follow them — if consistency is the charge.

To the extent that Larry thinks the Court should look to that history (and that is a perfectly plausible point),  it would require departing from how the Court defined it in Buckley et al.

Let’s use another “originalism” example. Under Ohio v. Roberts, the confrontation clause (which hasn’t changed in two centuries) was viewed to only require confrontation for statements lacking an “indicia of reliability.” Imagine an originalist brief authored by CAC that catalogued every single example of the word “reliability” used by the founding generation, totally apart from the context of the right of confrontation, to suggest that reliable evidence was only that offered by a witness in court (I’m making this up). So, the brief would argue that the original understanding of “reliability” requires that more testimony be made in person, with the right of confrontation (I’m making this up). This would be absurd. The word “reliability” is one the Ohio v. Roberts court used. Not the framers of the 6th Amendment.

Instead, in Crawford v. Washington, Justice Scalia unearthed the history of the confrontation clause (whether you agree with it or not) to require that so-called “testimonial” evidence be subject to confrontation. He got rid of the “reliability” standard. This is originalism.

Focusing on the word “corruption” has as much salience as focusing on the word “reliability.” Zero.

The Court is free to select a new understanding of “corruption” that the Framers understood.

So a Court must pick among that range. And the obvious question then is “on what basis?” Should it be the personal political preferences of the judges that determine which conception of “corruption” should count? The political preferences of whatever justice drafted the corruption related bit of Buckley v. Valeo (and it’s not clear from this brilliant essay by Rick Hasen who that was). Or should it be the conception of “corruption” the Framers would have embraced?

I can’t see how a principled originalist picks any conception other than the Framers’ — again, given the radically different implications each different conception would entail.

But this would require, like in Crawford, a departure from precedent. I’ll wait for a response on this point before I blog again.