[EL] Lessig Article

[Marty Lederman]

In addition to the substantive point Sam makes about how the originalist
meaning of "corruption" is neither here nor there; . . . and the point Josh
Blackmun makes that, in the health-care case, as in so many others, the SG
was spot-on in virtually every tactical judgment he made, including in
choosing not to stress the weak originalist arguments that many academics
were urging upon him; . . . and the point that this very "appeal to
Scalia's integrity" argument went over like the proverbial lead balloon in
Larry's own *Eldred* argument; . . .

I'd like offer two other correctives to particular passages in Larry's
article:

*First*, the idea that it "[did]n’t even occur to Obama’s solicitor general
to suggest a politically conservative argument," and that this "may reflect
a limit in the imagination of the Obama lawyers," is absurd.  Like many
others, I know from long experience that OSG, and Don Verrilli in
particular, considers every possible argument very carefully, and makes a
considered judgment about how much weight, if any, to give them in briefs
and at argument.  One might not always agree with the SG’s conclusions, but
that hardly means he didn’t give an argument his full consideration.  That
the SG did not press Larry's originalist argument here presumably only
indicates that he concluded that it would not have improved the
government's case in the slightest.  For what it's worth, I agree . . .
although in truth my assessment is not worth much, since the SG's tactical
judgment on such matters is invariably better than mine; indeed, it's as
unerring as virtually any SCOTUS advocate I've ever known.

*Second*, Larry writes that the SG "never did explain" why, "if each
individual contribution within the aggregate falls below the legal limit,
how does adding them all up somehow render them corrupt?" "The closest the
government came to answering" the question, he writes, was "a single
passage buried in the middle of the argument," about how without aggregate
limits, fewer than 500 people "can fund the whole shooting match, [with] a
very real risk that the government will be run of, by, and for those 500
people.”

This simply ignores the heart of the SG’s argument.  The SG started his
argument with the following:

Now, the Appellants in this case have tried to present the case as though
the issue were whether there were some corrupting potential in giving
contribution to the nineteenth candidate after someone has already
contributed to -- the maximum to the eighteenth. But that is not what this
case is about.  The Appellants are not arguing that the aggregate limit is
drawn in the wrong place. They are arguing that there can be no aggregate
limit because the base contribution limits do all the work. And so what
that means is that . . . you're taking the lid off the aggregate
contribution limit and . . . that means that an individual can contribute
every two years up to $3.6 million to candidates for a party, party
national committees and state committees.

He picked up on this same theme shortly thereafter:

It's a problem analogous to the one that was at issue with soft money in
McConnell, which is [that] the very fact of delivering the $3.6 million
check to the whoever it is--the Speaker of the House, the Senate Majority
Leader, whoever it is who solicits that check—the very fact of delivering
that check creates the inherent opportunity for quid pro quo corruption,
exactly the kind of risk that the Court identified in Buckley, wholly apart
from where that money goes after it's delivered.

At which point Justice Alito interrupted to say that he didn’t understand
how that could be corrupting, since it’s not obvious that the money will go
“from the person who wants to corrupt to the person who is going to be
corrupted.  And unless the money can make it from A to B, I don't see where
the quid pro quo argument is.”  In other words, exactly the argument to
which Larry Lessig says the SG offered no response.

But here’s how the SG responded:

I think that the way these joint fundraising committees work is you hand
over a single check to a candidate who solicits it. Now, it could be any
candidate who sets up a joint fundraising committee, says give to me and
give to the rest of my team. And . . . so the handing over the check to
that candidate . . . creates a significant risk of indebtedness on the part
of that candidate, even though a lot of the money is flowing through to
others.

In addition, the party leaders are often going to be the ones who solicit
those contributions, and they're going to have a particular indebtedness to
candidates because, of course, their power, their authority, depends on the
party retaining or gaining a majority in the legislature, and so
*they're*going to feel a particular sense of indebtedness, that this
person is
helping not only them, but everybody in these massive amounts.

At which point Alito interrupted again.  Instead of waiting to hear Alito’s
question, however, the SG asked the Chief if he could continue on to make
his third point, and the Chief agreed (thereby putting Justice Alito on
hold):

And then the third point . . . is that every candidate in the party is
going to be affected by this, because every candidate is going to get a
slice of the money and every candidate is  going to know that this person
who wrote the multimillion dollar check has helped not only the candidate,
but the whole team, and that creates a particular sense of indebtedness.  And,
of course, . . . every officeholder in the party is likely to be leaned on
by the party leadership to deliver legislation to the people who are
buttering their bread.

Far from the absence of any explanation, then, that’s about as elaborate
and detailed account as one gets at oral argument these days . . . and,
more importantly, it appeared to resonate with the Justice who is most
likely to be “in play,” if any of them is.  “I agree with you on the
aggregation,” said the Chief.  And later:

CHIEF JUSTICE ROBERTS:  I appreciate the argument you are making about the
3-point-whatever million-dollar check and the need for the aggregate limits
to address that.  I understand that point.
I don’t meant to suggest that the SG “won” the case with this argument.  It’d
be awfully hazardous to predict what the outcome will be.  The Chief, in
particular, seems especially troubled by the inability of a donor to cut
separate checks to many candidates, and so he will probably declare the
aggregate limit unconstitutional as applied to that situation.  (Indeed, he
asked several questions about how one might structure an aggregate limit
law that did not affect that scenario.)  But it sure didn’t *sound *as if
he were keen on striking down aggregate limits altogether, let alone
inclined to say that contributions do not corrupt, or that the
*Buckley*standard of review should be jettisoned.
And that’s largely because the SG’s specific argument about corruption
appeared to resonate with the Chief.

I'll leave it to Sam to explain what all of this has to do with the Golden
Notebook.   ;-)


On Fri, Oct 11, 2013 at 6:45 AM, Sam Bagenstos <sbagen at gmail.com> wrote:

> I'm not unsympathetic to Larry's substantive point here, but I have to
> admit I don't get the criticism of Verrilli or the suggestion that an
> originalist like Justice Scalia would have to agree with Larry's argument.
>  Am I right that the word "corruption" appears in the constitutional text
> only in Article III defining the proper scope of punishments for treason?
>  So the fact that in the founding era, or even in debates over the
> Constitution, lots of folks used the word "corruption" in Larry's sense
> does not imply anything to a textualist-originalist, right?  Because it's
> not like we're interpreting the word "corruption" in a constitutional
> provision.  What am I missing?
>
> (I want to bracket whether it's good to be a textualist-originalist or
> whether Justice Scalia is a consistent one, and just meet Larry's argument
> on its own terms.)
>
>
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