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.
(Original post on Tumblr)