Lessig Blog Archives

Thursday, at Brookline’s Lawrence School, something that should be happening at every school everywhere: a focus on healthy food. 

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Twitter / matthewstoller: The reformers (@lessig) have …:

Matt Stoller, arbiter of all things lib, thinks me “intellectual[ly dis]honest” because I am quoted as saying: 

if we had a clean system for funding elections, some sort of public funding system, then I’d have no problem with earmarks

when before I have written:

Earmarks are a cancer: Not because they consume a large part of the budget — they don’t; not because we shouldn’t be spending money — we should. But because they feed the system of corruption that is the way Washington work.

Twitter, of course, is the wrong forum to be charging people with dishonesty, so who knows really what the Great Stoller really thinks. But there is neither anything “dishonest” nor even wrong in the position: earmarks would be relatively harmless in a system of publicly financed elections but in a system of privately financed elections, they are the the mother’s milk of corruption. Anyone who doubts that should (finally get around to) read(ing) Robert Kaiser’s amazingly good So Damn Much Money. 

Maybe my “dishonesty” comes from the fact that earmarks have been (largely) removed yet corruption still flourishes. But of course, I have never suggested that the only reform that Congress needs is the elimination of earmarks. And it is the whole thrust of everything that I argue in Lesterland that given the current rules, the corruption has only morphed to even more congressional dysfunction.

Or put more simply: the business model of corruption has shifted from the one Kaiser described (with earmarks at the center) to dysfunction (which is what Lesterland and Mann and Ornstein describe). And I still believe that that corruption won’t be eliminated till we have reform like Sarbanes’ legislation, or the American Anti-Corruption Act. 

Honestly, Matt. (And Matt, honestly!)

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Josh Blackman has an interesting piece following up on my point about the original meaning of “corruption” as applied to McCutcheon. On these pages (pages?), I had written: 

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.

Josh replies, “I’m with Larry for the first three sentences, but he loses me with the last.” For him, the “important question” is not what “corruption” means; the important question is “what ‘freedom of speech’ means.”

Former co-clerk Mike Ramsey (aka, Miker) piles on in his own blog post. After quoting Blackman, Ramsey writes: 

 the question isn’t the eighteenth-century meaning of “corruption”; it’s the eighteenth-century meaning of “abridging the freedom of speech.”  In Buckley v. Valeo, the modern Supreme Court said that concerns over corruption might justify restrictions on speech.  But that did not purport to be an originalist holding.  To make an originalist care about the eighteenth-century meaning of corruption, you have to show that in the eighteenth century concerns about corruption justified speech restrictions.  Lessig has not done that.

It’s certainly true that Buckley isn’t an originalist opinion. But my question is how an originalist should apply the precedent s/he (ok, he) finds. 

The most conservative (small c) approach would be to embrace the test Buckley offers, but interpret its scope according to the values the Framers would have brought to the question. That’s what I did, and I’ll note that I’ve not yet seen an argument refuting the conclusion that I and Teachout and Brugman and others have advanced: That they were at least as focused on what I’ve called institutional corruption as upon the individual corruptions of a quid pro quo.

Of course, ala Crawford, it’s perfectly possible for an originalist to reject the who Buckley framework, and return to the question of how the Framers would have applied “abridging the freedom of speech” to the corruption regulations at issue in McCutcheon.

But I don’t see how that perspective supports the petitioner in McCutcheon. The Framers had a famously small conception of the restrictive scope of the First Amendment. As Robert Bork wrote about it, 

The framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject.

These were the guys that gave us the Alien and Sedition Act, and used government money to fund explicitly partisan newspapers (don’t tell the originalists who decided Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett).

Bork, of course, worked hard to construct a theory of free speech that might flow from a neutral view of “the freedom of speech.” He restricted that theory to political speech only — plainly triggered by the regulation in McCutcheon, at least if you embrace the Warren Court decision to protect symbolic speech (and of course, not too much). But unless one adopts a Black-ian absolutist position (“no law” means “no law”) — which Bork, who believed First Amendment “law should have been built on Justice Sanford’s majority opinions in Gitlow and Whitney,” did not — there still remains the question of what exceptions to the protection of “freedom of [political] speech [and symbolic acts like contributions]” will be allowed. 

It’s conceivable, of course, that an originalist would say “no corruption-based exception at all.” Again, given the understanding given by Teachout, that seems a plain misreading of them. But again again, in my view, if an originalist says “corruption” is a proper exception, I don’t see how an “honest originalist” avoids cabining his conception of “corruption” in light of the Framers’ values. 

Because again, if he doesn’t, then how can he justify the particular theory of “corruption” that he embraces? As Deborah Hellman nicely demonstrates, different theories imply radically different campaign finance regimes.

How does an originalist justify picking among those different theories unless he grounds it on framing values?  

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Twitter / rickhasen: New @RosenJeffrey piece …:

What’s puzzling about Rick Hasen’s position on the originalist argument for why “corruption” means more than “quid pro quo” corruption is that he uses language like this — “New @RosenJeffrey piece channeling @Lessig on originalism and campaign finance is wrong” — when what he means is — “it won’t work.” He has no real response to the claim that in fact the framers used the word “corruption” in the way I (and others like Teachout) say. 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?

Not to mention, the possible good if at least one followed it. 

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“Rather than advancing the one argument that the five originalists on the Court might be able to hear, the government insists on standing with an argument that all five conservatives on the Court have already rejected.”

– On the argument in McCutcheon v. FEC, see this in the Atlantic. 
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I’m going to release a free print/ebook version of my book, Lesterland. I’d be grateful for clever ideas for the cover design. If you’re a designer and interested in helping, I’d be grateful. Designers should be paid, but I’m hopeful gratitude and acknowledgment might be enough for this free version of the book. Email me at comments at lessig.org. And thanks in advance. 

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Big thanks to Tumby.me for building a search engine for our “Corruption, Originally” site — remember, the Tumblr site with all the framing references to the term “corruption,” which establishes at a minimum that the Framers meant more by “corruption” than “quid pro quo” corruption. I’m grateful for the pro bono help by Tumby. 

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In The Daily Beast, I lamented a certain political innovation of the GOP (fearful the Dems would then copy it and it would become SOP). Some have questioned whether indeed there is any innovation here. But I was careful in crafting my essay to make the turns necessary to distinguish this example from past examples. 

In my view, the elements in the current game are first a grave threat (“the likely default on United States debt [which] could be catastrophic”) and second, the “forc[ing of] changes in existing law when it can’t with honesty say that it represents a majority”

These two parts work together: Maybe grave threats are fine in the name of an obvious or clear majority; maybe minority holdouts are fine when they don’t risk grave threats (It’s one thing to pretend to fire a handgun; it’s quite a different thing to pretend to fire a handgun on a jet 30,000 in the air.) My claim is that these two together are an “innovation.” 

That is different from saying that “non-budget items have never been attached to the debt ceiling.” And it’s obvious different from saying we’ve never had a shut down. Indeed, since 1976 those have been quite common.

The “innovation” is not the shut down, or even the demand: It is demand like this (without a claim to majority support) threatening a harm like this (default). 

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The Grenade in the McCutcheon Briefs:

The great Trevor Potter (aka, Colbert’s superpac lawyer), has a fantastic post about a potential bomb (ok, “grenade”) in the middle of the briefs in the McCutcheon case. 

The question in that case is whether aggregate limits on contributions are constitutional (I.e., do you have a constitutional right to give more than ~$125k to federal candidates every year). But in deciding that question, petitioners have asked the Court to revisit the standard of review that applies to limitations on “contributions.”

Therein lies the bomb: In Buckley (1976), the Court held that while limits on expenditures had to be evaluated under “strict scrutiny,” limits on contributions got “less rigorous” scrutiny. In McCutcheon, the petitioners (and Senator McConnell, who will also be arguing in the case) are asking the Court to apply the same standard to contributions and expenditures.

What that means is that any limitations on contributions will be much much harder to uphold. And in the context of this Court, what “much much harder” means is impossible: Contributions will be unlimited just as expenditures are now unlimited. 

Mark one more for the Lesters. 

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I’m serving on the advisory board of the Voice of the People project, which is developing innovative (and scientifically valid) ways to allow “Members of Congress to hear from a representative sample of their constituents on key issues facing Congress.” 

The project launches on October 3, at the National Press Club in DC (10am), with an event that will include Michael N. Castle, former Governor and U.S. Representative (R-DE), Byron Dorgan, former U.S. Senator (D-ND), Bill Frenzel, former U.S. Representative (R-MN), and Martin Frost, former U.S. Representative (D-TX). 

From the press release: 

Americans believe, as did the Founders, that the common sense of the people can help break through polarization and gridlock, find common ground and lead to government that better serves the common good.  As public confidence in government has reached historic lows and gridlock continues to engulf Congress, VOP seeks to give “We the People” a greater voice in government decision-making.

Feels like a good time to be experimenting… 

 

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