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10/10/2013

More on McCutcheon, Speech and Corruption
Michael Ramsey

Regarding this post on Larry Lessig's "corruption" brief in McCutcheon v. FEC, Josh Blackman writes:

The "corruption" rationale is a product of the 20th century. Why would would it matter what the framers thought about a term introduced into the jurisprudence by the Burger Court? Even if we can ascertain what the founding generation thought about the word "corruption" by chronicling all the times it was used, how would that inform the Buckley inquiry?

He adds:

I'm not even sure what brand of originalism it is. It's like some form of reverse-textualism.

Professor Blackman has more at this post:  Why does it matter what the founders thought about “corruption,” a term SCOTUS introduced into jurisprudence in the 1970s?, which concludes:

I would understand if Lessig researched what the founders thought about the “freedom of speech” (there is 1.5 pages on the First Amendment [in the brief], but it doesn’t cite any founders), or even on elections, but focusing on a single word, “corruption,” to elaborate a theory on what the founders thought about campaign finance law, as applied to doctrine that emerged 40 years ago seems anachronistic.

Also on McCutcheon, Andrew Hyman writes:

You wrote: "while the contribution may be used by the recipient to convey a message, it might not be, and in any event the contributor does not know what the message will be."

What if the contributor has received a specific promise about what the message will be, and the promise is kept?

A fair hypothetical question, especially to a law professor.  I think in that case the outcome might well be different.  Or to put it even more sharply, what if the contributor made a campaign movie and gave it to the campaign?  An as-applied challenge should perhaps succeed.  But this would be a fairly narrow exception, and much less than McCutcheon is seeking.