October 15, 2013  ·  Lessig  · Reblogged from  Tumblr

Josh Blackman has an interesting piece following up on my point about the original meaning of “corruption” as applied to McCutcheon. On these pages (pages?), I had written: 

The fundamental question for a judge is always this: What sanctions the Court in its overturning an act of Congress? The easy and obvious reply in these cases is the First Amendment — as interpreted by the Court. According to that interpretation, the regulation of “corruption” escapes the ordinary restriction against speech regulation. So the important question is what “corruption” means.

Josh replies, “I’m with Larry for the first three sentences, but he loses me with the last.” For him, the “important question” is not what “corruption” means; the important question is “what ‘freedom of speech’ means.”

Former co-clerk Mike Ramsey (aka, Miker) piles on in his own blog post. After quoting Blackman, Ramsey writes: 

 the question isn’t the eighteenth-century meaning of “corruption”; it’s the eighteenth-century meaning of “abridging the freedom of speech.”  In Buckley v. Valeo, the modern Supreme Court said that concerns over corruption might justify restrictions on speech.  But that did not purport to be an originalist holding.  To make an originalist care about the eighteenth-century meaning of corruption, you have to show that in the eighteenth century concerns about corruption justified speech restrictions.  Lessig has not done that.

It’s certainly true that Buckley isn’t an originalist opinion. But my question is how an originalist should apply the precedent s/he (ok, he) finds. 

The most conservative (small c) approach would be to embrace the test Buckley offers, but interpret its scope according to the values the Framers would have brought to the question. That’s what I did, and I’ll note that I’ve not yet seen an argument refuting the conclusion that I and Teachout and Brugman and others have advanced: That they were at least as focused on what I’ve called institutional corruption as upon the individual corruptions of a quid pro quo.

Of course, ala Crawford, it’s perfectly possible for an originalist to reject the who Buckley framework, and return to the question of how the Framers would have applied “abridging the freedom of speech” to the corruption regulations at issue in McCutcheon.

But I don’t see how that perspective supports the petitioner in McCutcheon. The Framers had a famously small conception of the restrictive scope of the First Amendment. As Robert Bork wrote about it

The framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject.

These were the guys that gave us the Alien and Sedition Act, and used government money to fund explicitly partisan newspapers (don’t tell the originalists who decided Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett).

Bork, of course, worked hard to construct a theory of free speech that might flow from a neutral view of “the freedom of speech.” He restricted that theory to political speech only — plainly triggered by the regulation in McCutcheon, at least if you embrace the Warren Court decision to protect symbolic speech (and of course, not too much). But unless one adopts a Black-ian absolutist position (“no law” means “no law”) — which Bork, who believed First Amendment “law should have been built on Justice Sanford’s majority opinions in Gitlow and Whitney,” did not — there still remains the question of what exceptions to the protection of “freedom of [political] speech [and symbolic acts like contributions]” will be allowed. 

It’s conceivable, of course, that an originalist would say “no corruption-based exception at all.” Again, given the understanding given by Teachout, that seems a plain misreading of them. But again again, in my view, if an originalist says “corruption” is a proper exception, I don’t see how an “honest originalist” avoids cabining his conception of “corruption” in light of the Framers’ values. 

Because again, if he doesn’t, then how can he justify the particular theory of “corruption” that he embraces? As Deborah Hellman nicely demonstrates, different theories imply radically different campaign finance regimes.

How does an originalist justify picking among those different theories unless he grounds it on framing values?  

(Original post on Tumblr)