[EL] Lessing Are
Rick Hasen
rhasen at law.uci.edu
Fri Oct 11 10:21:16 PDT 2013
I discuss a similar point in both the Election Law Journal piece
<http://online.liebertpub.com/doi/abs/10.1089/elj.2013.1234> and the
Harvard Law Review piece
<http://www.harvardlawreview.org/issues/126/december12/Book_Review_9410.php>.
I argue that the voucher program he endorses (based in part on a voucher
proposal I made in 1996) would make politicians "dependent" on simply a
different set of donors, in ways which could actually increase political
polarization.
On 10/11/13 10:16 AM, Bill Maurer wrote:
>
> Doesn’t Professor Lessig’s concept of “dependence corruption” also
> assume that large donors have the same, or very similar, interests?
> In other words, the presumption is that Congress becomes dependent on
> a single entity, large-money contributors. But large-money
> contributors have vastly different interests, even if one were to
> assume that contributors make contributions solely to further their
> business interests alone. And, of course, they don’t—large
> contributors make contributions for a wide variety of ideologically
> heartfelt reasons, including support for same-sex marriage,
> environmentalism, and the belief in the wisdom of free market
> principles (to name just a few). Wouldn’t large contributions from a
> range of ideologically diverse contributors (or even from contributors
> with diverse economic interests) lessen “dependence corruption,” not
> increase it?
>
> Bill
>
> *From:*law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of
> *Rick Hasen
> *Sent:* Friday, October 11, 2013 9:45 AM
> *To:* Sam Bagenstos
> *Cc:* law-election at UCI.edu
> *Subject:* Re: [EL] Lessing Article
>
> 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 > <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>
>
> Posted incampaign 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 inredistricting <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 inSupreme 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 incampaign 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 incampaign 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%20>
>
> Posted inUncategorized <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 inelection 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 incampaign 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 <mailto: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 <mailto:rhasen at law.uci.edu>
> hhttp://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
--
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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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