Corporate Accountability

CAC, Lawrence Lessig File Brief in McCutcheon v. FEC Urging New Look at Framers’ Understanding of Corruption

Three years ago, in Citizens United v. FEC, the Supreme Court shocked the nation by ruling that the Constitution gives corporations the right to spend unlimited sums of money on electoral advocacy.   The five-Justice conservative majority in Citizens United treated spending money as speech and corporations as a part of “We the People,” while sharply limiting the government’s interest in preventing corruption to cases of quid pro quo corruption.  On October 8 – the second day of the upcoming Term – the Supreme Court will hear McCutcheon v. FEC, a hugely important sequel to Citizens United that concerns the constitutionality of federal aggregate limits on campaign contributions.  Contribution regulations of exactly this sort were upheld by the Court in Buckley v. Valeo.  Nevertheless, seizing on Citizens United’s narrow definition of corruption, McCutcheon argues that current federal aggregate contribution laws, which limit an individual to a total of $123,200 in campaign contributions to candidates and parties per election cycle, cannot be justified by the government’s anti-corruption interest.

Last week, CAC filed an amicus brief in McCutcheon v. FEC on behalf of Harvard Law Professor Lawrence Lessig, which presents to the Court path-breaking research – involving review of every Founding-era discussion of corruption in debates over the Constitution – on the Framers’ understanding of corruption.  This research – which has never before been presented to the Supreme Court – shows that 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.  In the case of the House of Representatives, in particular, they sought to create a representative form of government “dependent on the people alone,” in the words of James Madison.   Throughout the Constitution, the Framers created prophylactic protections to prevent improper dependence.  The touchstone of corruption for the Framers was “improper dependence,” not “quid pro quo corruption.”

Our brief proves this point as an empirical matter.  The Appendix to the brief – a companion to the online interactive database http://ocorruption.tumblr.com – collects every use of the term “corruption” in the Framing-era documents on the adoption and ratification of the Constitution .  Of the 325 usages identified, in more than half – 57% of cases – the Framers were discussing corruption of institutions, not individuals.   By contrast, discussion of quid pro quo corruption was rare – only six instances, all of them focused on corruption of individuals.  Thus, while the Framers understood that corruption could arise from acts of quid pro quo corruption by officeholders, their main concern was corruption predicated on an improper, conflicting dependence.  In at least 29 instances, the Framers spoke of corruption in exactly this way – five times the frequency of discussion of quid pro quo corruption.  This is powerful Framing-era evidence that, contrary to what the conservative majority in Citizens United claimed, the government’s interest in preventing corruption cannot properly be limited to quid pro quo corruption of individual officeholders.

Under this constitutionally-faithful understanding of corruption, the federal aggregate contribution limits challenged by McCutcheon are plainly constitutional.  The aggregate limits play a necessary role in securing a government free from corrupting dependence on high dollar donors.  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.

In Citizens United, the Court’s conservative majority limited the government’s anti-corruption interest to quid pro quo corruption without any basis in the Constitution for doing so.  As CAC’s brief in McCutcheon makes clear, this incomplete, wholly modern definition of corruption is badly out of step with the Framers’ views.  We hope the Court takes the text and history presented in our brief to heart and uses its ruling in McCutcheon to move the law back toward first principles, rather than compound the errors of Citizens United.

P.S.  This morning, Bob Bauer criticized our brief, arguing that the brief fails to offer anything more than “mood music” in defense of the aggregate contribution limits.  We like to think of it more as a “Founders’ chorus,” but what’s critical is that Bauer does not question the force or accuracy of the text and history in the brief.   Rather, Bauer thinks our brief slighted what he sees as the key issue – whether aggregate contribution limits are, in fact, restrictions on expenditures.  This strikes us as an easy one: the statute is a limit on hard money political contributions to candidates and parties.  Under both text and history and the Court’s precedents from Buckley to Citizens United, contributions of this sort fall squarely within the power of the government to prevent corruption.

This article is cross-posted on Balkinization.

This article has been reprinted in the following publications

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