Originalists Making It Up Again: ‘McCutcheon’ and ‘Corruption’

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The Supreme Court’s decision in McCutcheon v. FEC is predicated on a “mistake,” writes Lawrence Lessig, a constitutional law scholar and professor at Harvard, at The Daily Beast. That “mistake” is the conservative justices’ faux-originalist interpretation of “corruption” as a quid pro quo exchange, between a donor and a politician, of money for policy favors. Lessig looked at how the framers of the Constitution actually used the word:

Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution to

try to map

how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

So how is that framing usage relevant to the decision in

McCutcheon

?

The justices on the Court leading the charge to restrict the meaning of “corruption” to quid pro quo corruption alone are the conservatives. Those same conservatives — Justice Scalia and Justice Thomas most prominently, but Chief Justice Roberts as well — are also the justices who have told us again and again that the method they use to interpret the constitution is “originalism.” Read the Constitution, they have told us, not how we would read it, but how the Framers would have read it. That’s the only “principled,” as we’ve been lectured again and again, way to interpret the document. And on the basis of that method, the Court has struck down acts of Congress repeatedly, and likewise, upheld acts of Congress repeatedly. If the Framers would have done it, an originalist argues, then we should too.

But where is the originalism when it comes to the meaning of the word “corruption?” If the originalists on the Court believe the Framers would have permitted laws regulating the freedom of speech if those laws targeted “corruption,” why would an originalist use an understanding of the term from a 1976 per curium opinion (Buckley v. Valeo) rather than an understanding of the Framers — corruption as in “improper dependence” — made manifest by the Framers again and again?

Read Lessig’s post in full at:

Edited April 4, 2014 by Porterhouse