[EL] Lessing Article
Rick Hasen
rhasen at law.uci.edu
Fri Oct 11 09:44:32 PDT 2013
I don't think you are missing anything Sam. I have a brief discussion
of this point in my new ELJ piece in my debate with Larry on "dependence
corruption:"
Last year, the Montana Supreme Court tried to buck the U.S. Supreme
Court’s decision in Citizens United by holding that the state of
Montana provided enough evidence that independent corporate
political spending could corrupt the state’s political process to
justify corporate spending limits.70 While the case was pending
before the Supreme Court, Lessig was alone in predicting that the
Supreme Court would take the case and affirm the lower court, with
his betting on Justice Kennedy switching sides from his Citizens
United vote.71 The rest of us in the field predicted what actually
happened:72 in American Tradition Partnership (ATP) v. Bullock,73
the U.S. Supreme Court smacked down the Montana Supreme Court in a
5–4 summary reversal in which all the Justices in the Citizens
United majority reaffirmed the soundness of that precedent.
But Lessig was undeterred by the ATP smackdown. As late as January
2013, months after the Montana case, he was predicting that an
‘‘originalist’’ Justice (but not Justice Scalia, for whom he
clerked) could well reverse course on Citizens United in a
future case.74 Lessig believes, following the work of Professor
Zephyr Teachout,75 that ‘‘dependence corruption’’ is a form of
corruption that would have been recognizable and accepted by the
Framers as a legitimate basis to limit spending in elections.76
I leave to others the question whether or not the Lessig/Teachout
interpretation of ‘‘corruption’’ to include concepts of political
equality is consistent with originalist thinking.77 I will note
however that in Federalist No. 52, the phrase ‘‘dependent upon the
people alone’’ appears in a passage explaining why the Constitution
set the qualifications for suffrage pertaining to voting for members
of the U.S. House the same as the qualifications for voting for the
state legislature. Publius states that allowing the state
legislature the discretion to set the rules for voting for Congress
‘‘would have rendered too dependent on the State Governments, that
branch of the federal government which ought to be dependent on the
people alone.’’78 The language here has everything to do with
federalism and the federal-state balance, and nothing to do with
improper influence by those with money or other benefits over the
Congress. Later in the pamphlet, Publius explains that biennial
elections insure that Congress will be properly dependent on the
people: ‘‘Frequent elections are unquestionably the only policy by
which this dependence and sympathy can be effectually secured.’’79
There is no hint in this Federalist Paper about worries of monied
classes influencing the people in their votes for Congress.
Regardless of the soundness of the originalist debate, the idea that
the current Supreme Court will change course thanks to an
undiscovered originalist argument is a pipe dream. Justice Thomas
has been the Justice most hostile to campaign finance regulation in
his time on the Court, leading the way toward deregulation,80 with
Justice Alito closely following suit.81 Justice Kennedy has never
wavered from his dissents in Austin, in which he said that the
Michigan law limiting corporate spending in elections to PACs ‘‘is
the rawest form of censorship,’’82 and in McConnell, in which he
first declared that ingratiation and access are not corruption83—a
point he made into a majority opinion in Citizens United.84 And
Chief Justice Roberts has yet tovote to uphold a campaign finance
limit while on the Court; his opinions have lamented FEC regulation
as speech suppression, declaring ‘‘enough is enough.’’85
This Supreme Court majority won’t budge on this question despite
original understandings of the meaning of ‘‘corruption,’’ and
arguing that it will gives supporters false hope.
Footnotes omitted. See also Bruce Edward Cain, Is Dependence Corruption
the Solution to America’s Campaign Finance Problems?, Cal. L. Rev.
(forthcoming 2013), draft available,<
http://papers.ssrn.com/sol3/papers.cfm?abstract_id =
2267187 >; Guy-Uriel E. Charles, Corruption’s Temptation, Cal. L. Rev.
(Forthcoming 2013), draft available, < http://ssrn.com/abstract =
2272189 > .
On 10/11/13 3:45 AM, Sam Bagenstos 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.)
>
> Sent from my iPad
>
> On Oct 11, 2013, at 12:10 AM, Rick Hasen <rhasen at law.uci.edu
> <mailto:rhasen at law.uci.edu>> wrote:
>
>>
>> “Enough is enough. I want my government back; The supreme court’s
>> campaign finance rulings have made Congress responsive to rich
>> funders, not the public.” <http://electionlawblog.org/?p=55900>
>>
>> Posted on October 10, 2013 9:07 pm
>> <http://electionlawblog.org/?p=55900>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> Zephyr Teachout /Guardian/ oped.
>> <http://www.theguardian.com/commentisfree/2013/oct/10/government-shutdown-supreme-court-citizens-united>
>>
>> <share_save_171_16.png>
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55900&title=%E2%80%9CEnough%20is%20enough.%20I%20want%20my%20government%20back%3B%20The%20supreme%20court%E2%80%99s%20campaign%20finance%20rulings%20have%20made%20Congress%20responsive%20to%20rich%20funders%2C%20not%20the%20public.%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10>,
>> Supreme Court <http://electionlawblog.org/?cat=29>
>>
>>
>> More on How Gerrymandering Did Not Cause the Shutdown
>> <http://electionlawblog.org/?p=55898>
>>
>> Posted on October 10, 2013 9:05 pm
>> <http://electionlawblog.org/?p=55898>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> Seth Masket
>> <http://mischiefsoffaction.blogspot.com/2013/10/the-complicated-relationship-between.html>
>>
>> McCarthy, Poole, and Rosenthal
>> <http://mobile.bloomberg.com/news/2013-10-09/gerrymandering-didn-t-cause-the-shutdown.html>
>>
>> <share_save_171_16.png>
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55898&title=More%20on%20How%20Gerrymandering%20Did%20Not%20Cause%20the%20Shutdown&description=>
>> Posted in redistricting <http://electionlawblog.org/?cat=6>
>>
>>
>> Jess Bravin Has Must-Read Interview with Justice Kennedy
>> <http://electionlawblog.org/?p=55896>
>>
>> Posted on October 10, 2013 3:45 pm
>> <http://electionlawblog.org/?p=55896>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> Part I <http://t.co/9SHqVozCkJ> andII. <http://t.co/icXJaSWa0v>
>>
>> I wonder whether his comments about gender and ethnic diversity on
>> the Supreme Court promoting the Court’s legitimacy will have any
>> effect in his thinking in affirmative action cases.
>>
>> <share_save_171_16.png>
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55896&title=Jess%20Bravin%20Has%20Must-Read%20Interview%20with%20Justice%20Kennedy&description=>
>> Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>>
>>
>> Colbert Takes on Controversial Tom Emmer Campaign Ad, Quotes
>> Campaign Legal Center <http://electionlawblog.org/?p=55893>
>>
>> Posted on October 10, 2013 3:03 pm
>> <http://electionlawblog.org/?p=55893>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> Watch.
>> <http://www.colbertnation.com/the-colbert-report-videos/429657/october-09-2013/tom-emmer-s-controversial-ad>
>>
>> <share_save_171_16.png>
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55893&title=Colbert%20Takes%20on%20Controversial%20Tom%20Emmer%20Campaign%20Ad%2C%20Quotes%20Campaign%20Legal%20Center&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10>,
>> election law "humor" <http://electionlawblog.org/?cat=52>
>>
>>
>> “Fantasyland at the Supreme Court: It’s time to reassert the
>> primacy of political speech in the First Amendment.”
>> <http://electionlawblog.org/?p=55890>
>>
>> Posted on October 10, 2013 2:38 pm
>> <http://electionlawblog.org/?p=55890>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> Brad Smith
>> <http://www.nationalreview.com/article/360805/fantasyland-supreme-court-bradley-smith>
>> on the /McCutcheon /oral argument.
>>
>> I expect a string of articles from conservatives to try to insure
>> that Chief Justice Roberts <http://electionlawblog.org/?p=55849> does
>> not “go wobbly
>> <http://articles.latimes.com/2012/may/23/news/la-ol-roberts-supreme-health-20120523>”
>> on campaign finance reform too.
>>
>> <share_save_171_16.png>
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55890&title=%E2%80%9CFantasyland%20at%20the%20Supreme%20Court%3A%20It%E2%80%99s%20time%20to%20reassert%20the%20primacy%20of%20political%20speech%20in%20the%20First%20Amendment.%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10>,
>> Supreme Court <http://electionlawblog.org/?cat=29>
>>
>>
>> “Obama’s Lawyer Should Have Used Originalism to Sway Originalist
>> Justices; If he had met a conservative Court on its own ground,
>> the solicitor general could have notched a victory for
>> liberalism—and helped safeguard campaign-finance protections.”
>> <http://electionlawblog.org/?p=55886>
>>
>> Posted on October 10, 2013 12:17 pm
>> <http://electionlawblog.org/?p=55886>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> Larry Lessig writes
>> <http://www.theatlantic.com/politics/archive/2013/10/obamas-lawyer-should-have-used-originalism-to-sway-originalist-justices/280462/>
>> for the Atlantic.
>>
>> I’ve expressed my deep
>> <http://www.harvardlawreview.org/issues/126/december12/Book_Review_9410.php>
>> skepticism
>> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2220851> of this
>> position.
>>
>> Larry submitted an amicus brief with CAC on this. Surely Justice
>> Scalia is familiar with the arguments. If he was swayed even the
>> slightest by the argument, it was not evident at oral argument.
>>
>> UPDATE: Josh Blackman comments.
>> <http://joshblackman.com/blog/2013/10/10/solicitor-general-verrilli-criticized-again-for-not-making-originalist-argument/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+JoshBlackmansBlog+%28Josh+Blackman%27s+Blog%29>
>>
>> <share_save_171_16.png>
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55886&title=%E2%80%9CObama%E2%80%99s%20Lawyer%20Should%20Have%20Used%20Originalism%20to%20Sway%20Originalist%20Justices%3B%20If%20he%20had%20met%20a%20conservative%20Court%20on%20its%20own%20ground%2C%20the%20solicitor%20general%20could%20have%20notched%20a%20victory%20for%20liberalism%E2%80%94and%20helped%20safeguard%20campaign-finance%20protections.%E2%80%9D&description=>
>> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>>
>>
>> “Chesterfield registrar delays purge of voter rolls”
>> <http://electionlawblog.org/?p=55884>
>>
>> Posted on October 10, 2013 11:51 am
>> <http://electionlawblog.org/?p=55884>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> The latest
>> <http://www.timesdispatch.com/news/local/chesterfield/chesterfield-registrar-delays-purge-of-voter-rolls/article_162e36b5-0be7-5dc8-af9f-48876a167b43.html>
>> from Virginia.
>>
>> <share_save_171_16.png>
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55884&title=%E2%80%9CChesterfield%20registrar%20delays%20purge%20of%20voter%20rolls%E2%80%9D&description=>
>> Posted in election administration
>> <http://electionlawblog.org/?cat=18>, The Voting Wars
>> <http://electionlawblog.org/?cat=60>
>>
>>
>> “Minimum Give the Maximum: Supreme Court could unleash
>> mega-donors with McCutcheon ruling”
>> <http://electionlawblog.org/?p=55882>
>>
>> Posted on October 10, 2013 11:50 am
>> <http://electionlawblog.org/?p=55882>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> National Institute on Money in State Politicspress release.
>> <http://www.followthemoney.org/press/ReportView.phtml?r=500>
>>
>> <share_save_171_16.png>
>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55882&title=%E2%80%9CMinimum%20Give%20the%20Maximum%3A%20Supreme%20Court%20could%20unleash%20mega-donors%20with%20McCutcheon%20ruling%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> hhttp://www.law.uci.edu/faculty/full-time/hasen/
>> http://electionlawblog.org
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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