Lawrence Lessig's Blog, page 8

Design help?

I’m going to release a free print/ebook version of my book, Lesterland. I’d be grateful for clever ideas for the cover design. If you’re a designer and interested in helping, I’d be grateful. Designers should be paid, but I’m hopeful gratitude and acknowledgment might be enough for this free version of the book. Email me at comments at lessig.org. And thanks in advance. 

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Our "Corruption, Originally" site has a search engine — thanks to Tumby.me

Big thanks to Tumby.me for building a search engine for our “Corruption, Originally” site — remember, the Tumblr site with all the framing references to the term “corruption,” which establishes at a minimum that the Framers meant more by “corruption” than “quid pro quo” corruption. I’m grateful for the pro bono help by Tumby. 

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On the meaning of a political "innovation"

In The Daily Beast, I lamented a certain political innovation of the GOP (fearful the Dems would then copy it and it would become SOP). Some have questioned whether indeed there is any innovation here. But I was careful in crafting my essay to make the turns necessary to distinguish this example from past examples. 

In my view, the elements in the current game are first a grave threat (“the likely default on United States debt [which] could be catastrophic”) and second, the “forc[ing of] changes in existing law when it can’t with honesty say that it represents a majority”

These two parts work together: Maybe grave threats are fine in the name of an obvious or clear majority; maybe minority holdouts are fine when they don’t risk grave threats (It’s one thing to pretend to fire a handgun; it’s quite a different thing to pretend to fire a handgun on a jet 30,000 in the air.) My claim is that these two together are an “innovation.” 

That is different from saying that “non-budget items have never been attached to the debt ceiling.” And it’s obvious different from saying we’ve never had a shut down. Indeed, since 1976 those have been quite common.

The “innovation” is not the shut down, or even the demand: It is demand like this (without a claim to majority support) threatening a harm like this (default). 

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The Grenade in the McCutcheon Briefs

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. 

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The Voice of the People

I’m serving on the advisory board of the Voice of the People project, which is developing innovative (and scientifically valid) ways to allow “Members of Congress to hear from a representative sample of their constituents on key issues facing Congress.” 

The project launches on October 3, at the National Press Club in DC (10am), with an event that will include Michael N. Castle, former Governor and U.S. Representative (R-DE), Byron Dorgan, former U.S. Senator (D-ND), Bill Frenzel, former U.S. Representative (R-MN), and Martin Frost, former U.S. Representative (D-TX). 

From the press release: 

Americans believe, as did the Founders, that the common sense of the people can help break through polarization and gridlock, find common ground and lead to government that better serves the common good.  As public confidence in government has reached historic lows and gridlock continues to engulf Congress, VOP seeks to give “We the People” a greater voice in government decision-making.

Feels like a good time to be experimenting… 

 

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More on an "originalist" understanding of "corruption"

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. 

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There will be live streaming of Constitutional Accountability…

There will be live streaming of Constitutional Accountability Center event Thursday, September 26, at 12pm, discussing McCutcheon v. FEC & the first Tumblr in the Supreme Court. 

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the definition of insanity is doing the same thing…

So a fair and frequent question I get from my friends when I describe my optimistic view about the conservative Supreme Court justices is: “How can you be so naive?”

It’s a fair question, as this faith has led me to many errors. I had faith in Bush v. Gore. And in Eldred v. Reno. And in the Obamacare case (the result was consistent if not the reasoning). And in Golan v. Holder.

In each case, I was wrong. Some say because I read the “originalism” wrongly. Some say because I have too much faith in the “originalists.”

But regardless, here I go again: As I have written, in my view, a committed originalist would find it difficult to interpret the term “corruption” to refer to “quid pro quo” corruption alone. 

So we’ll see. 

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Speaking at HLS Thursday, 26 September, David Stockman is a…

Speaking at HLS Thursday, 26 September, David Stockman is a former congressman, former budget director (for Reagan), and a current author (The Great Deformation). The book is a powerful, angry book, which has angered many on the left and right. But there is an important truth woven throughout, and though the book is not architected to please anyone, we’ll be working hard at the lecture to surface this important truth. #Rootstrikers of all kinds welcome. 

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Tumblr goes to the Supreme Court

On Thursday, Senator Elizabeth Warren and I will participate in an event hosted by the Constitutional Accountability Center (livestream here) to discuss a brief I submitted in a corruption (aka “campaign finance”) case that the Supreme Court will hear on October 8: McCutcheon v. F.E.C.

At the center of the brief is a Tumblr — the first time a Tumblr has been used in an argument in a Supreme Court brief.

The basic argument of the brief is that the Framers of the Constitution used the word “corruption” in a different, more inclusive way, than we do today. The Tumblr captures 325 such uses collected from the framing context, and tags to help demonstrate this more inclusive meaning. 

The upshot of the collection is that the Framers meant more by “corruption” than simple “quid pro quo” (this for that) corruption. In particular, their main focus (or most common usage) was institutional corruption. And one prominent example of the institutional corruption they were concerned about was an institution developing an improper dependence. Like — to pick just one totally random example — a Congress developing a dependence upon its funders, rather than the dependence the framers intended — “on the People alone.”

This research should be significant to the “originalists” on the Supreme Court (the 5 conservatives) at least. They say they interpret the Constitution by looking to its original meaning. If they look to the original meaning of “corruption,” they would see that they have no legitimate sanction for restricting the meaning of “corruption” to “quid pro quo” corruption alone (as some recent cases suggest at least some believe). And if they did not restrict it to “quid pro quo” corruption alone, then the regulation in McCutcheon, which limits aggregate contributions, could be justified: it’s purpose is to limit dependence upon large donors; that purpose is a perfect valid “anti-corruption” purpose, at least in the view of the Framers. 

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