Corporate Accountability

The Right’s Living Constitution: Brad Smith Edition

In a recent post about McCutcheon v. FEC, the upcoming sequel to Citizens United, Brad Smith suggests that somehow our amicus brief, filed on behalf of Harvard Law Professor Lawrence Lessig, which is originalist to the core, reveals us to be “living constitutionalists.”   Pot, meet kettle. 

Smith — like the conservative majority in Citizens United — asserts that the only kind of corruption that counts is quid pro quo corruption of individual officeholders.  He treats us to a lengthy exegesis of Supreme Court rulings, which, he says, demand this conclusion.  While he claims to favor “historical or textual approaches” to the Constitution, he offers none in support of his view of corruption. 

In contrast, our brief, featuring Professor Lessig’s pathbreaking scholarship, surveys every Framing-era use of corruption in debates over the ratification of the Constitution and analyzes in detail the Federalist Papers as well as debates at the Constitutional Convention, and shows that the touchstone of corruption for the Framers was “improper dependence,” not “quid pro quo corruption.” 

We think the evidence laid out in our brief speaks for itself.   When the Framers spoke of corruption, they rarely invoked quid pro quo corruption, and never limited corruption in the manner Smith claims. Out of 325 different discussions of corruption collected in the Appendix to the brief – a companion to the online interactive database –  only six discussed quid pro quo corruption of individual officeholders.   Far more common was concern over the corruption of institutions.  Of the 325 usages identified, in more than half – 57% of cases – the Framers were discussing corruption of institutions, not individuals.   Thus, while the Framers understood that corruption could arise from acts of quid pro quo corruption by officeholders, they were far more concerned with institutional 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 demolishes the argument that only quid pro quo corruption matters.  

Smith maintains that “McCutcheon’s case is strong,” but that’s simply not true under the Constitution’s text and 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.  If anyone is a living constitutionalist here, it is Brad Smith.