September 25, 2013 · Lessig
On Thursday, Senator Elizabeth Warren and I will participate in an event hosted by the Constitutional Accountability Center (livestream here) to discuss a brief I submitted in a corruption (aka “campaign finance”) case that the Supreme Court will hear on October 8: McCutcheon v. F.E.C.
At the center of the brief is a Tumblr — the first time a Tumblr has been used in an argument in a Supreme Court brief.
The basic argument of the brief is that the Framers of the Constitution used the word “corruption” in a different, more inclusive way, than we do today. The Tumblr captures 325 such uses collected from the framing context, and tags to help demonstrate this more inclusive meaning.
The upshot of the collection is that the Framers meant more by “corruption” than simple “quid pro quo” (this for that) corruption. In particular, their main focus (or most common usage) was institutional corruption. And one prominent example of the institutional corruption they were concerned about was an institution developing an improper dependence. Like — to pick just one totally random example — a Congress developing a dependence upon its funders, rather than the dependence the framers intended — “on the People alone.”
This research should be significant to the “originalists” on the Supreme Court (the 5 conservatives) at least. They say they interpret the Constitution by looking to its original meaning. If they look to the original meaning of “corruption,” they would see that they have no legitimate sanction for restricting the meaning of “corruption” to “quid pro quo” corruption alone (as some recent cases suggest at least some believe). And if they did not restrict it to “quid pro quo” corruption alone, then the regulation in McCutcheon, which limits aggregate contributions, could be justified: it’s purpose is to limit dependence upon large donors; that purpose is a perfect valid “anti-corruption” purpose, at least in the view of the Framers.
(Original post on Tumblr)