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)

  • john gutta

    Dr. Lessig,

    I read your book, Republic,Lost, that I bought at your talk in Haverhill a few days ago. Both the book and talk were so good that I also read One Way Forward, and joined some of the organizations that you recommended.
    I totally agree that the first step in restoring our Republic must be to end the influence of money in our lawmaking process, but I do not believe that any of the currently proposed amendments ( including yours in One Way Forward ) will do that. Why? Because all of them allow millions in “gifts” ( payoffs for ‘service’ ) during “life after Congress”. Consequently we desperately need the mock conventions that you suggested ( a brilliant idea ) to write a loophole free amendment which includes entirely public funding of campaigns, commensurate pay, and mandatory retirements for life on generous government pensions.
    Some will argue that mandatory retirement from moneymaking is too much to ask of retired lawmakers. I disagree. Laws are the soul of a nation, and so lawmaking is the most important job in a nation. If millions of soldiers can sacrifice their lives to protect our land, surely a few thousand retired lawmakers can sacrifice moneymaking to protect its soul.

    with hope,
    John Gutta

    P.S. please read my book, For a Fair America, available on Amazon.