Monday, July 29, 2013

CAC, Lawrence Lessig File Brief in McCutcheon v. FEC Urging New Look at Framers’ Understanding of Corruption

David Gans

Three years ago, in Citizens United v. FEC, the Supreme Court shocked the nation by ruling that the Constitution gives corporations the right to spend unlimited sums of money on electoral advocacy.   The five-Justice conservative majority in Citizens United treated spending money as speech and corporations as a part of “We the People,” while sharply limiting the government’s interest in preventing corruption to cases of quid pro quo corruption.  On October 8 – the second day of the upcoming Term – the Supreme Court will hear McCutcheon v. FEC, a hugely important sequel to Citizens United that concerns the constitutionality of federal aggregate limits on campaign contributions.  Contribution regulations of exactly this sort were upheld by the Court in Buckley v. Valeo.  Nevertheless, seizing on Citizens United’s narrow definition of corruption, McCutcheon argues that current federal aggregate contribution laws, which limit an individual to a total of $123,200 in campaign contributions to candidates and parties per election cycle, cannot be justified by the government’s anti-corruption interest. 

Last week, CAC filed an amicus brief in McCutcheon v. FEC on behalf of Harvard Law Professor Lawrence Lessig, which presents to the Court path-breaking research – involving review of every Founding-era discussion of corruption in debates over the Constitution – on the Framers’ understanding of corruption.  This research – which has never before been presented to the Supreme Court – shows that the Framers’ understood corruption in institutional terms:  their chief concern was preventing the nation’s new institutions of government from developing an “improper  dependence” on outside forces, whether those forces were foreign princes overseas or powerful factions located closer to home.  Having seen, for example, the English Parliament corrupted by its dependence on the King, the Framers crafted the Constitution to avoid such improper dependencies.  In the case of the House of Representatives, in particular, they sought to create a representative form of government “dependent on the people alone,” in the words of James Madison.   Throughout the Constitution, the Framers created prophylactic protections to prevent improper dependence.  The touchstone of corruption for the Framers was “improper dependence,” not “quid pro quo corruption.”  

Our brief proves this point as an empirical matter.  The Appendix to the brief – a companion to the online interactive database – collects every use of the term “corruption” in the Framing-era documents on the adoption and ratification of the Constitution .  Of the 325 usages identified, in more than half – 57% of cases – the Framers were discussing corruption of institutions, not individuals.   By contrast, discussion of quid pro quo corruption was rare – only six instances, all of them focused on corruption of individuals.  Thus, while the Framers understood that corruption could arise from acts of quid pro quo corruption by officeholders, their main concern was corruption predicated on an improper, conflicting dependence.  In at least 29 instances, the Framers spoke of corruption in exactly this way – five times the frequency of discussion of quid pro quo corruption.  This is powerful Framing-era evidence that, contrary to what the conservative majority in Citizens United claimed, the government’s interest in preventing corruption cannot properly be limited to quid pro quo corruption of individual officeholders.    

Under this constitutionally-faithful understanding of corruption, the federal aggregate contribution limits challenged by McCutcheon are plainly constitutional.  The aggregate limits play a necessary role in securing a government free from corrupting dependence on high dollar donors.  By preventing massive hard money contributions to candidates and their political parties, the aggregate limits aim to prevent the very sort of improper dependence on outside forces that the Framers wrote the Constitution to check. 

In Citizens United, the Court’s conservative majority limited the government’s anti-corruption interest to quid pro quo corruption without any basis in the Constitution for doing so.  As CAC’s brief in McCutcheon makes clear, this incomplete, wholly modern definition of corruption is badly out of step with the Framers’ views.  We hope the Court takes the text and history presented in our brief to heart and uses its ruling in McCutcheon to move the law back toward first principles, rather than compound the errors of Citizens United. 

P.S.  This morning, Bob Bauer criticized our brief, arguing that the brief fails to offer anything more than “mood music” in defense of the aggregate contribution limits.  We like to think of it more as a “Founders’ chorus,” but what’s critical is that Bauer does not question the force or accuracy of the text and history in the brief.   Rather, Bauer thinks our brief slighted what he sees as the key issue – whether aggregate contribution limits are, in fact, restrictions on expenditures.  This strikes us as an easy one: the statute is a limit on hard money political contributions to candidates and parties.  Under both text and history and the Court’s precedents from Buckley to Citizens United, contributions of this sort fall squarely within the power of the government to prevent corruption.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in McCutcheon.  This post is cross-posted at Text and History


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Prof. Teachout has also wrote various articles on this subject.

I am certainly part of the nation, and was decidedly unshocked. Perhaps you could bring yourself to admit that a substantial potion of the nation not only wasn't shocked, but approved of the decision? Including, for instance, the ACLU?

Indeed, if anything shocked me, it was the government arguing that it could ban books.

The government can "ban books" in various ways, including for copyright reasons, if a CIA agent wants to write a tell all memoir, obscenity and so forth.

To focus on the hypo raised (and the position rejected on reargument):

"Mr. Stewart: --I'm not saying it could be banned.

I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC."

[oral argument transcript]

To balance things out, "shocked the nation" is exaggerated. Your advocacy here is reasonable but "the nation" has various opinions on these subjects and probably doesn't as a whole pay enough attention to be as a whole "shocked" at most anything the USSC does.

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American law funnels the vast majority of publishing, setting aside handcrafting books as a not terribly common hobby, through corporations. To say that you can ban books if they are published by corporations is to say that you can ban books. Find a copy of Das Kapital, The Wealth of Nations, or even a Bible, which was not published by a corporation.

Just as to say you can censor newspapers if they are published by corporations is to say you can censor newspapers.

And so, you are simply repeating an aspiring censor's excuse for rendering the 1st amendment toothless. Which is what the Court recognized, and they quite properly reacted very badly to that argument.

"Mr. Stewart: --I'm not saying it could be banned.

I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC."

Brett skipped over a few words when referencing "if they are published by corporations." The case also was not about "all books," but in a certain context.

So, corporations could pay for the writing of books even campaign related but had to use PACs.

Even this limited application (raised as a hypo) was changed by the government on re-argument.

Without wishing to diminish in any way the power of corporations, the fact is some books are available without their help:

Das Kapital

The Wealth of Nations

The Bible (KJV)

It remains true that a small number of booksellers (Amazon, B&N) control what is generally available. And censorship does not mean no copy gets to any person; it means fewer copies, marginalization.

I'm going to read the rest you the post, but it starts off badly, with the falsehood that the Citizens United decision "shocked the nation."

I challenge anyone to come up with any evidence of widespread dismay across the nation on a par with the reaction to, e.g., the Kelo decision on eminent domain. Some precincts on the Left got excited about it, and president Obama expressed his displeasure in a SOTU speech, but "the nation" didn't care much about it.

"the Kelo decision on eminent domain"

The same principle applies. Some people were excited, but ultimately, not much "shock" that resulted in much change occurred.

And, on that front, states could have before Kelo had stricter rules, and still can, but repeatedly even when they were fairly libertarian, the states did not block "economic takings."

I've downloaded Jack Balkin's recent article on the new originalism and the uses of history which I hope to read over the next several days; it's 91 pages but with my continuing eyesight problem I'll work my way through it without reading all the footnotes (which I hate to do especially with Jack's writing style). I mention this because of the uses of history in the meaning of corruption in the early days that the CAC brief focuses on. From Jack's abstract, it seems that he views history more significant with constitutional construction than with interpretation, that the new originalism distinguishes. I'll be on the lookout for any references by Jack to "law office history." Perhaps less of a focus on history for interpretation suggests a textualist approach, whereas construction comes into play when the original meaning/understanding is not clear. Jack's article may be a demonstration that the new originalism continues to evolve.

Bauer thinks our brief slighted what he sees as the key issue – whether aggregate contribution limits are, in fact, restrictions on expenditures. This strikes us as an easy oneLeague of Legends Account

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