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Rick Hasen’s Faulty Originalism
October 12, 2013
Professor Rick Hasen accuses our client, Harvard Professor Lawrence Lessig, of practicing “bad originalis[m]” in urging the Justices of the Supreme Court, in McCutcheon v. FEC, to hold that the federal aggregate contribution limits combat corruption, as the Framers of the Constitution understood that term. This is a serious charge. Hasen is one of the leading lights of election law, and his arguments deserve close consideration. But Hasen is not an originalist, and his arguments about what is “good” and what is “bad” originalism, and his account of the Constitution’s text and history, all fall flat.
Bad originalism consists mainly of attempts to have a séance with the Framers in an attempt to figure out, for example, what they would have thought about violent video games. Original intent originalism or, as we call it, “Borkian originalism,” has been thoroughly discredited by critics ranging from Paul Brest to Jeff Powell to Antonin Scalia, as explained in this CAC report written by Professor Jim Ryan. Originalism, properly understood and practiced, looks to the original meaning of key words and phrases to inform judicial decision makers of what these words meant at the time the Constitution was written. While the term “corruption” appears in only one rather obscure part of the Constitution, it was a central motivating concern of the Framers, as explained most thoroughly in the work of Professor Zephyr Teachout. Having seen the English system of government beset by corruption, the Framers sought to design a system of government in which “corruption was more effectually guarded against . . . than in any other that had ever been formed.” Given that the modern Court has made corruption a central concept in its campaign finance jurisprudence, it makes perfect sense to examine that term, not in a vacuum, but in light of its original meaning, which is Professor Lessig’s great contribution to this debate. His work is first-rate originalist scholarship, whether or not the Court’s conservative wing is swayed.
On the specifics of Hasen’s arguments, Hasen first contends that Professor Lessig’s argument takes out of context Madison’s critically important statement, in Federalist 52, that the Framers of the Constitution designed the House of Representatives to be “dependent on the people alone.” In Hasen’s view, Madison’s statement has nothing to do with corruption. Hasen misses the forest for the trees. The evidence that the Framers understood corruption in terms of improper dependence is overwhelming. As the text and history laid out in our brief and the accompanying interactive database shows, 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. To that end, the Framers created numerous prophylactic protections throughout the Constitution to prevent improper dependence -- including rules about the receipt of foreign gifts, the appointment of members of Congress to executive offices, and eligibility requirements for elective office. In short, concerns about “dependence corruption” are at the very root of the Constitution’s text and history. Hasen does not even try to counter the mass of evidence laid out in our brief that makes this clear.
Second, Hasen contends that there is no evidence that the Framers were concerned about “improper influence by those with money or other benefits over the Congress.” Once again, Hasen has simply failed to give the evidence presented in our brief its proper due. The Framers were gravely concerned, as Alexander Hamilton observed in Federalist 22, that “[i]n republics, persons elevated from the mass of the community by the suffrages of their fellow citizens to stations of great preeminence and power may find compensations for betraying their trust.” The wealthy, the Framers understood, were the prime source of these illicit “compensations.” Indeed, the text and history of the Constitution show that the Framers were aware that wealthy men would try to purchase elective office, fearing the ways in which “Rich men . . . may employ with success means of corruption” in order to “get into Public councils.” The Constitution’s text was designed to prevent such efforts to frustrate our representative democracy, one “not for the rich more than the poor,” in the immortal words of James Madison. In case new forms of corruption might be introduced, the Framers had the wisdom to give Congress broad powers to regulate the time, place, and manner of federal elections to ensure the integrity of our system of government.
Rick Hasen clearly prefers his own non-originalist arguments for correcting the grievous errors of Citizens United, as his long running debates with Professor Lessig reflect.
He is, of course, entitled to those views. But he has no tenable constitutional arguments against Professor Lessig’s powerful originalist case for regulating money in politics. In trying to undercut Professor Lessig’s arguments, Professor Hasen harms the very cause he champions.