Corporate Accountability

The framers on campaign finance law — via Tumblr

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.


This piece also appeared in at least the following outlets:


* The Bakersfield Californian (online)