[EL] Lessing Article
Rick Hasen
rhasen at law.uci.edu
Fri Oct 11 11:42:53 PDT 2013
Lessig on Hasen on Rosen on Lessig on Dependence Corruption
<http://electionlawblog.org/?p=55923>
Posted on October 11, 2013 11:20 am
<http://electionlawblog.org/?p=55923>by Rick Hasen
<http://electionlawblog.org/?author=3>
Larry responds
<http://lessig.tumblr.com/post/63746705807/twitter-rickhasen-new-rosenjeffrey-piece>
to my most recent post <http://electionlawblog.org/?p=55919>:
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.
I strongly disagree that I have no response to the argument that this is
a good originalist argument. My article and post
<http://electionlawblog.org/?p=55919>argues this is a /bad/ originalist
argument.
Whether you like originalism or not, I don’t think this is a strong
originalist argument.
It is true that I also don’t think that this argument will sway the
originalists on the Court, who I believe or originalists of
convenience—but that was not my primary point.
So why am I “so invested” in this fight? Because I think it is a
distraction from the kinds of arguments which are (1) forthright and (2)
can actually move the ball forward. Dependence corruption gives people
false hope that conservatives on the Court will be swayed by a gloss on
original meaning.
Time to take on political equality and corruption (as understood by the
Court) head on, and make the best arguments under these approaches.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D55923&title=Lessig%20on%20Hasen%20on%20Rosen%20on%20Lessig%20on%20Dependence%20Corruption&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
On 10/11/13 9:44 AM, Rick Hasen wrote:
> 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
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> <mailto:Law-election at department-lists.uci.edu>
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> --
> 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
--
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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