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The Great Debate

The framers on campaign finance law — via Tumblr

By Elizabeth B. Wydra
July 29, 2013

How our nation’s founding fathers would feel about Tumblr is as impossible for the Supreme Court to know as how James Madison would have felt about violent video games. But fortunately there’s a new Tumblr blog available to help the justices understand how the framers of the Constitution felt about “corruption” in politics.

The blog, created by Harvard Law professor Lawrence Lessig, examines all the writings of the founding fathers’ and aggregates every mention of “corruption” to get an overview of their opinion. The answer could prove important to the court’s ultimate ruling in the latest post-Citizens United challenge to campaign finance laws.

The Supreme Court, in its controversial Citizens United decision, ruled that corporations have the right to spend without limit on ads and other political activity to support a particular candidate or party. The result was $1.5 billion in outside spending during the 2012 presidential election.

But the court could take this one step further in a new case, casting aside a key limit on direct contributions to candidates and allowing individual high-dollar donors to play an extraordinarily outsized role in elections by giving multimillion-dollar contributions directly to campaigns. This would mark the first time the Supreme Court declared a federal contribution limit unconstitutional, and make it even harder for most Americans to be heard by their elected officials.

The Supreme Court, on the second day of its new term in October, is due to hear McCutcheon v. Federal Election Commission, a case that challenges the overall limit — $123,000 — that one person can give over a two-year election cycle. The challengers’ argument is that, as long as the $2,600 cap on donations to a single candidate’s campaign is in place, there is no constitutional rationale for limiting the total amount: each candidate will still receive only $2,600, so there is no greater risk of corruption simply because one donor can now contribute to many more candidates.

Removing the aggregate donations ceiling would allow a single donor to give the maximum amount to more candidates — as well as to political parties. The Republican National Committee, along with Shaun McCutcheon, an Alabama businessman and conservative activist, brought the lawsuit.

The problem is that the lawsuit’s underlying premise argues that the only permissible target of federal campaign laws is individual corruption — the sort of quid pro quo campaign activities that barrel across the line separating political donations from bribery. But, as Harvard’s Lessig observed, our nation’s founders viewed both individuals (“Aaron Burr is corrupt”) and institutions (“Parliament is corrupt”) as capable of succumbing to improper influence that would harm the nation.

So Lessig had two of his research assistants scour online databases of framing texts to gather every use of the term “corruption.” The team coded the different usages to show whether the term was used in reference to an individual or an institution, and then whether it was used with regard to “quid pro quo” corruption or an “improper dependence” kind of corruption. (The latter means that individuals or institutions are dependent on special interests or on public or private money — basically, dependent on anything or anyone other than the voters, on which officials and public institutions are “properly” dependent.)

Lessig’s results are striking. As he explains on his “Corruption, originally” Tumblr blog, the significant majority (57 percent) of the framers’ use of “corruption” was in reference to an entity or institution — not an individual. For the significant number of cases in which the framers discussed “improper dependence” as a kind of corruption, they were describing entity corruption (67 percent) not individual corruption (33 percent).

And the “quid pro quo” corruption, which the challengers of today’s campaign finance law argue is the only legitimate target of regulation? Of the 325 uses of the word “corruption” in the debates around the ratification of the Constitution, only five were discussing quid pro quo corruption.

The framers were clearly concerned about institutional corruption. They wrote into the Constitution specific structural safeguards — ranging from bans on foreign gifts to requirements for regular elections. Subsequent constitutional amendments added anti-corruption protections — ensuring that senators were elected by the people, not state legislatures, and expanding the pool of voters with women and African-Americans to make democracy even more inclusive.

When Congress passed the campaign finance law now being challenged in the Supreme Court, it used the broad anti-corruption rationale that was at the heart of these efforts — and of central concern to the Constitution’s framers.

Opponents of campaign finance laws, spurred on by the court’s ruling in the Citizens United case, have pushed their modern, narrow understanding of individual, quid pro quo political corruption as the only legitimate target of government regulation.

But, as Lessig’s research shows, this limited understanding of the appropriate targets of anti-corruption laws is at odds with history. By preventing massive hard-money contributions to candidates and their political parties, the aggregate limits aim to prevent the very sort of improper dependence on outside forces that the framers wrote the Constitution to check.

Lessig’s interactive treasure trove of founding-era material used technology unimaginable to Madison or Benjamin Franklin — but it contains the key to understanding how the framers of our Constitution understood political corruption and what sort of corruption they wanted the federal government to fight against. Justices who profess to be faithful to the Constitution’s original meaning cannot ignore these findings.

Just as anti-corruption principles shaped the design of the Constitution, the court should uphold the power of the federal government to establish aggregate limits on campaign contributions to combat corruption.

 

PHOTO (Top): Scene at the Signing of the Constitution of the United States by Howard Chandler Christy. Courtesy House of Representatives

Photo (Insert): The Supreme Court in Washington. REUTERS

Comments
6 comments so far | RSS Comments RSS

Exactly how can anyone rely on a thoroughly corrupt system, including many Supreme Court Justices, to reform the corruption that put them in power? It simply is not going to happen.

Like cancer, corruption spreads, and kills — people, businesses and nations.

Posted by usagadfly | Report as abusive
 

There is no reasonable logic the conservative wing of this court cannot ignore or misinterpret to suit their purpose. Alito, Thomas, and Scalia are a disgrace to the history and purpose of the Supreme Court.

Posted by jswain23 | Report as abusive
 

What we surmise the “founding fathers” may have “felt” is largely irrelevant except to the extent those feelings found their ways into the words of the Constitution. It’s what they said and not what they that matters. How can you know what a group of people subjectively “felt”? How do you address the feelings of group members who did not leave any records of their opinions on the subject? All we know is what they said. We do not know what they felt. In some cases, contemporary writings may shed light on the way language was being used, but those cases are rare.

In addition, it may be — indeed, it may often be — that the words enacted in the Constitution lead, when applied to modern problems, to results with which the “founding fathers” would have been uncomfortable. If we are also uncomfortable with those results, there is a process for amending the Constitution. That’s the mechanism for addressing issues for which the Constitution does not provide clear guidance. If there is not sufficient consensus to amend the Constitution, that’s the answer.

Turning to the regulation of political financial donations, there is every reason to believe — and Lessig’s research project is consistent with this — that the “founding fathers” did not trust political “factions” and would have been against the establishment of political parties that we accept as the norm today. On the other hand, there is not reason to believe that they would have seen any need to limit the amount an individual should be permitted to donate to a political candidate, or to limit the amount a political candidate should accept in contributions, or even to require political financial donations to be disclosed. On the other hand, it is virtually certain that they would have been strongly opposed to any use of taxpayers’ money to finance political campaigns. Indeed, public financing of political campaigns is part of the establishment of the two dominant political parties, which the “founding fathers” did not “intend” and to which is appears very likely the majority of them would have been opposed.

Posted by Bob9999 | Report as abusive
 

It’s nice to wonder what the founding fathers thought so long ago. I’m a history buff too. But today we have vastly different problems then they ever faced. I would support a constitutional amendment on campaign finance reform (and term limits). I do not believe that any institution should be allowed to contribute. Only individual citizens. A limit of like 5% of the average American income would be about right. You should be able to give to as many candidates as you want following that limit. I would also support federal funding of presidential campaigns (sorry Bob9999) as the expense to reach all Americans is to great. Again, a common sense limit of say $10 per tax payer. That’s a $2.50 a year contribution I would be willing to make.
I truly believe that without campaign finance reform and term limits for congress and SCOTUS, NOTHING will ever change in Washington. We need a referendum vote as the politicians most certainly will not do it.

Posted by tmc | Report as abusive
 

@tmc – I didn’t say I wouldn’t support Federal funding of presidential campaigns. I take no position on that (but, since I disagree with both parties, I would prefer not to pay for their upkeep). I said the “founding fathers” wouldn’t have supported it. The point of my comment — and let me put it more bluntly — is that it is complete nonsense from a Constitutional point of view to muse about what the “founding fathers” would have done (which of them, by the way?). We have the words they put into the Constitution — those are the only ones they agreed about, with other writings being footnotes — as well as amendments and various court decisions on whether one statute or another is consistent with the Constitution. If we have an idea and think it is a good one, but we determine it is not consistent with the Constitution, we can amend the Constitution. It’s as simple as that. If the votes are not in all of the right places to amend the Constitution, that’s the answer. We can expect opinions to change over the course of a generation, and one generation is actually a pretty fast pace for Constitutional change.

Posted by Bob9999 | Report as abusive
 

Conservatives are always looking for Original Intent to steer their rulings to the right. Here is one way to throw it back in their face.

Posted by Andvari | Report as abusive
 

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