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)