July 29, 2013 · Lessig
Inspired by the work of Zephyr Teachout and Zach Brugman, and aided by the work of two research assistants, Dennis Courtney and Zach D’Amico, the lawyers at the Constitutional Accountability Center and I have submitted this amicus brief to the Supreme Court for the upcoming McCutcheon v. F.E.C..
The basic question the brief addresses is this: What would the framers of the Constitution have understood the word “corruption” to mean? This question is important since at least 5 justices on the Supreme Court are “originalists,” and the Court has held that the meaning of “corruption” determines how far Congress may go to address the issue of “campaign finance reform.”
To answer that question, Dennis Courtney and Zach D’Amico gathered every use of the term “corruption” from documents at the founding. They then each coded the uses. The basic questions they asked were first whether the term “corruption” was being predicated of an institution, or an individual; second, whether the use was discussing “quid pro quo” corruption; and third, whether it described “improper dependence” as a kind of corruption.
The results were striking. A significant majority of the times the Framers use the term “corruption,” corruption is predicated of an entity, not an individual (57%). Every instance of “quid pro quo” corruption is describing individual corruption, not entity corruption. And for the significant number of cases in which the Framers are discussing “improper dependence” as a kind of corruption, they are describing entity corruption (67%) not individual corruption (33%).
These numbers make it hard to believe that the Framers of our Constitution would have used the term “corruption” to refer to “quid pro quo” corruption alone. Or put more sharply, these number suggest that only a non-originalist could support the idea that “corruption” refers to “quid pro quo” corruption alone.
You can see the original research at the tumblr blog, oCorruption.tumblr.com.
(Original post on Tumblr)