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08/01/2013

Lessig/CAC Brief in McCutcheon v. FEC
Michael Ramsey

At Balkinization, David Gans: CAC, Lawrence Lessig File Brief in McCutcheon v. FEC Urging New Look at Framers’ Understanding of Corruption.  From the description of the brief:

... On October 8 – the second day of the upcoming Term – the Supreme Court will hear McCutcheon v. FEC, a hugely important sequel to Citizens United that concerns the constitutionality of federal aggregate limits on campaign contributions.  ...  McCutcheon argues that current federal aggregate contribution laws, which limit an individual to a total of $123,200 in campaign contributions to candidates and parties per election cycle, cannot be justified by the government’s anti-corruption interest. 

Last week, CAC [the Constitutional Accountability Center] filed an amicus brief in McCutcheon v. FEC on behalf of Harvard Law Professor Lawrence Lessig, which presents to the Court path-breaking research – involving review of every Founding-era discussion of corruption in debates over the Constitution – on the Framers’ understanding of corruption.  This research – which has never before been presented to the Supreme Court – shows that the Framers’ understood corruption in institutional terms:  their chief concern was preventing the nation’s new institutions of government from developing an “improper  dependence” on outside forces, whether those forces were foreign princes overseas or powerful factions located closer to home.  Having seen, for example, the English Parliament corrupted by its dependence on the King, the Framers crafted the Constitution to avoid such improper dependencies.  In the case of the House of Representatives, in particular, they sought to create a representative form of government “dependent on the people alone,” in the words of James Madison.   Throughout the Constitution, the Framers created prophylactic protections to prevent improper dependence.  The touchstone of corruption for the Framers was “improper dependence,” not “quid pro quo corruption.” 

Professor Lessig comments on the brief here.  Further thoughts from Elizabeth Wydra of CAC here.

Bob Bauer has skeptical thoughts here.  From his conclusion:

The Appendix to the brief, a “catalogue” of references to “corruption” in the Constitutional debate, reveals the problem. It runs for over 20 pages, Lessig Br. at 1a-23a, citing all Founding Era “instances of ‘corruption’ usage, grouped by type of corruption referenced, date, and speaker.” Id. at 4a. This catalogue is not without interest and it is a testament to Professor Lessig’s deep commitment to his concern over money in politics. The puzzle is how the Court can use this information to establish, in Professor Lessig’s words, the “necessary” and “essential” role of the aggregate limits. Id. at 29, 30. Professor Lessig has proven that he has the will to make this case, but this brief does not show the way.