October 7, 2013  ·  Lessig  · Reblogged from  Tumblr

Big thanks to Tumby.me for building a search engine for our “Corruption, Originally” site — remember, the Tumblr site with all the framing references to the term “corruption,” which establishes at a minimum that the Framers meant more by “corruption” than “quid pro quo” corruption. I’m grateful for the pro bono help by Tumby. 

(Original post on Tumblr)

October 4, 2013  ·  Lessig  · Reblogged from  Tumblr

In The Daily Beast, I lamented a certain political innovation of the GOP (fearful the Dems would then copy it and it would become SOP). Some have questioned whether indeed there is any innovation here. But I was careful in crafting my essay to make the turns necessary to distinguish this example from past examples. 

In my view, the elements in the current game are first a grave threat (“the likely default on United States debt [which] could be catastrophic”) and second, the “forc[ing of] changes in existing law when it can’t with honesty say that it represents a majority”

These two parts work together: Maybe grave threats are fine in the name of an obvious or clear majority; maybe minority holdouts are fine when they don’t risk grave threats (It’s one thing to pretend to fire a handgun; it’s quite a different thing to pretend to fire a handgun on a jet 30,000 in the air.) My claim is that these two together are an “innovation.” 

That is different from saying that “non-budget items have never been attached to the debt ceiling.” And it’s obvious different from saying we’ve never had a shut down. Indeed, since 1976 those have been quite common.

The “innovation” is not the shut down, or even the demand: It is demand like this (without a claim to majority support) threatening a harm like this (default). 

(Original post on Tumblr)

October 3, 2013  ·  Lessig  · Reblogged from  Tumblr

The Grenade in the McCutcheon Briefs:

The great Trevor Potter (aka, Colbert’s superpac lawyer), has a fantastic post about a potential bomb (ok, “grenade”) in the middle of the briefs in the McCutcheon case. 

The question in that case is whether aggregate limits on contributions are constitutional (I.e., do you have a constitutional right to give more than ~$125k to federal candidates every year). But in deciding that question, petitioners have asked the Court to revisit the standard of review that applies to limitations on “contributions.”

Therein lies the bomb: In Buckley (1976), the Court held that while limits on expenditures had to be evaluated under “strict scrutiny,” limits on contributions got “less rigorous” scrutiny. In McCutcheon, the petitioners (and Senator McConnell, who will also be arguing in the case) are asking the Court to apply the same standard to contributions and expenditures.

What that means is that any limitations on contributions will be much much harder to uphold. And in the context of this Court, what “much much harder” means is impossible: Contributions will be unlimited just as expenditures are now unlimited. 

Mark one more for the Lesters

(Original post on Tumblr)

October 3, 2013  ·  Lessig  · Reblogged from  Tumblr

The Grenade in the McCutcheon Briefs:

The great Trevor Potter (aka, Colbert’s superpac lawyer), has a fantastic post about a potential bomb (ok, “grenade”) in the middle of the briefs in the McCutcheon case. 

The question in that case is whether aggregate limits on contributions are constitutional (I.e., do you have a constitutional right to give more than ~$125k to federal candidates every year). But in deciding that question, petitioners have asked the Court to revisit the standard of review that applies to limitations on “contributions.”

Therein lies the bomb: In Buckley (1976), the Court held that while limits on expenditures had to be evaluated under “strict scrutiny,” limits on contributions got “less rigorous” scrutiny. In McCutcheon, the petitioners (and Senator McConnell, who will also be arguing in the case) are asking the Court to apply the same standard to contributions and expenditures.

What that means is that any limitations on contributions will be much much harder to uphold. And in the context of this Court, what “much much harder” means is impossible: Contributions will be unlimited just as expenditures are now unlimited. 

Mark one more for the Lesters

(Original post on Tumblr)

October 2, 2013  ·  Lessig  · Reblogged from  Tumblr

I’m serving on the advisory board of the Voice of the People project, which is developing innovative (and scientifically valid) ways to allow “Members of Congress to hear from a representative sample of their constituents on key issues facing Congress.” 

The project launches on October 3, at the National Press Club in DC (10am), with an event that will include Michael N. Castle, former Governor and U.S. Representative (R-DE), Byron Dorgan, former U.S. Senator (D-ND), Bill Frenzel, former U.S. Representative (R-MN), and Martin Frost, former U.S. Representative (D-TX). 

From the press release: 

Americans believe, as did the Founders, that the common sense of the people can help break through polarization and gridlock, find common ground and lead to government that better serves the common good.  As public confidence in government has reached historic lows and gridlock continues to engulf Congress, VOP seeks to give “We the People” a greater voice in government decision-making.

Feels like a good time to be experimenting… 

 

(Original post on Tumblr)

October 1, 2013  ·  Lessig  · Reblogged from  Tumblr

Ed_in_LA has a nice comment to my piece in The Beast about the original meaning of “corruption.” The basic thrust of his point is that originalism is about how judges read the Framers’ texts. And the word “corruption” (like “democracy,” or “separation of powers,” or “federalism”) doesn’t appear in any founding text (except “corruption of blood”). 

I don’t believe this fair and true point changes the point I am making. 

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.

But obviously, the term “corruption” can mean many things. See, for example, this brilliant paper by Deborah Hellman at the University of Virginia mapping a range of possible conceptions of “corruption,” and the very different (and sometimes contradictory) implications that range would have for the scope of legitimate campaign finance regulations.

So a Court must pick among that range. And the obvious question then is “on what basis?” Should it be the personal political preferences of the judges that determine which conception of “corruption” should count? The political preferences of whatever justice drafted the corruption related bit of Buckley v. Valeo (and it’s not clear from this brilliant essay by Rick Hasen who that was). Or should it be the conception of “corruption” the Framers would have embraced? 

I can’t see how a principled originalist picks any conception other than the Framers’ — again, given the radically different implications each different conception would entail. No doubt the choice is artificial — in the sense that the First Amendment was not originally intended to (or at least applied to) limit Congress through judicial restrictions. But once we get over that innovation, the consistent originalist is committed, in my view, to interpreting the contours of any exception according to the best interpretation of how they would have understood that exception. (Properly translated, of course. But that qualification doesn’t apply here.) 

One possible response is precedent: Since Buckley, the Court has pointed to “corruption” as “quid pro quo” corruption (sort of, and except for Austin). But even that doesn’t save the narrow conception because the Court has never addressed the question whether “quid pro quo corruption is the only conception of corruption” relevant to First Amendment analysis. Why would it? The relevant question in each case before was simply whether “corruption” (ordinarily quid pro quo) would reach the behavior regulated in that particular case.

Reading “corruption” as the Framers would have would not force the Court to reverse any decision it has already made. It would not, for example, undermine Citizens United. So again, the consistent originalist is not constrained to ignore the Framers view. Which is again why s/he should follow them — if consistency is the charge. 

(Original post on Tumblr)