David Gans has posted a reply to my recent piece on the meaning of corruption in campaign finance law, again asserting that “dependence” corruption, the “corruption of institutions,” is the justification for laws limiting political participation.
Gans’ reply is off-base is a variety of ways. He simply reads my whole post incorrectly, and then reasserts his “dependency corruption” theory. I’ll use bullet points:
- Gans says that I accuse the brief filed by he and Larry Lessig in McCutcheon v. FEC as one that “reveals us to be ‘living constitutionalists.’” Actually, no, I don’t. I voice no opinion on their brief in that regard. I do note that most supporters of campaign finance reform tend to favor the idea of a “living constitution,” but note that really they are in a “formalistic rut.” But that’s a general observation, not one directed at David and Larry, whose brief I discuss only in passing a full 16 paragraphs later, in a paragraph that begins (to set it off from what has gone on before) “Meanwhile… .” It is interesting to me that David seems to bridle at that label, which I use as self-descriptive of many supporters of reform, and not as a derogatory term.
- Gans then asserts that I “claim[] to favor ‘historical or textual approaches’ to the Constitution.” But that’s actually not true. I don’t claim that anywhere in the article. Again, I merely note that most proponents of the free speech side in the campaign finance debate “tend to take historical or textual approaches to interpretation.” My own approach is something of a blending of all these approaches, with a heavy dose of what I call “structuralism” – the constitution should be read as a document creating a working, functioning government, with certain powers (i.e. to coin money), structures (3 branches!; Congressmen are elected every two years, etc.) and obligations (congress must keep a journal of its affairs).
- He concludes his post, “If anyone is a living constitutionalist here, it is Brad Smith.” One can almost hear the triumphant cry of “touche.” Except that while I don’t really consider myself a “living constitutionalist,” I don’t really think of that as an insult either. Obviously the constitution adapts to changes in society. What is an “unreasonable search” in an era of modern technology must involve some extrapolation from principle, not rote reading of the original document. And as for what Gans seems to want to imply, again, my descriptions were simply that – empirical, not normative descriptions of where people tend to fall.
- Gans seems to open with these three assertions because, I think, a) he thinks that I am attempting to discredit the reform camp by suggesting that they are hypocritical, which I was not; or b) he is attempting to discredit my arguments by suggesting that I am being hypocritical; which I don’t think I am (see preceding bullet); or c) some of both; or perhaps d) (and this would surprise me a bit) he really hates the idea of being a believer in the “living constitution” and considers it an insult (it was not intended to be). In any case, these opening observations of mine in what was a very long post were merely ironic observations. That is because…
- The thrust of my post is that you cannot simply reduce Buckley v. Valeo to “contributions can be limited/expenditures cannot be limited.” The case is more complex than that, and more importantly, it is much less formalistic, and much more functional, than simply applying labels. Buckley has reasons for treating some types of political activity (which, as a semantic short cut, we can usually label “contributions,”) differently from others (which, as a semantic short cut, we can usually label “expenditures”). What is important is that we not let the generic labels become guiding forces in and of themselves, over the purpose of the distinctions made in Buckley. Too often the reform community – and, I note, the FEC – have applied a formalistic version of Buckley to anything they can call a “contribution.” This, I argue, has really contributed to messing up campaign finance law.
- The functional angle of Buckley, as I explain in detail, is the opportunity for quid pro quo corruption. Gans does not dispute anything here in my description and interpretation of Buckley. Rather, he complains that “the touchstone of corruption for the Framers was ‘improper dependence,’ not ‘quid pro quo corruption.’” That’s all fine, but it’s not Buckley, and so doesn’t have much to do with the body of what I wrote.
- I do, however, at the end of my lengthy post, note that Gans and Professor Lessig “claim that the Founders would have favored campaign finance restrictions because they opposed what Lessig calls ‘dependence corruption.'” So I think I got the theory of Gans/Lessig brief in McCutcheon correct (see preceding bullet).
- I don’t deal with the Gans/Lessig argument (the post was long enough!) other than to say that it is “a type of corruption which, it appears, is merely asserted rather than actually observed.” I add that “We [royal we? – but I’m probably speaking for most folks in the pro-speech camp] tend to think that there isn’t much to that line of attack.”
- I conclude with: “But the question in McCutcheon, unless the Court wishes to renounce Buckley’s approach, is whether or not the aggregate limits are necessary to prevent quid pro quo exchanges.” Which seems exactly right, at least as a response to the Gans/Lessig brief, since that brief essentially calls for renouncing Buckley’s approach in favor of a much broader definition of “corruption.”
- My post also argues that reformers would do well to quit trying to shoehorn Buckley’s assumptions, which, after nearly 38 years, we should see have been remarkably durable (especially given all the ink spilled, including by yours truly, suggesting that the case should be overruled in whole or in part) into a paradigm that those assumptions simply do not fit. If this were done, I believe it might be possible to develop a much more coherent, understandable law, one that could, in some ways, even offer what the reform camp would view as “improvements.” Some of these “reform improvements” would probably make me chafe, but at least a discussion could begin toward some settlement and accommodation.
So in a sense, Gans seems to take my post too personally. But if I actually were to engage on the merits on the Gans/Lessig theory of corruption, I would offer more or less the following critiques, which I merely summarize here – this is not a full argument:
- I do not find their exhaustive research convincing for the theory they propound. First, by focusing on individual uses of the word “corruption,” they again make a formalistic mistake. The exercise is useful, definitely, but just as “contributions” and “expenditures” are labels for certain principles, so can be “corruption.” We don’t always use it in the same way.
- There really isn’t much argument (at least not from me) that the founders were very concerned about the corruption of institutions. But if you want to rely on the Founders (and I think that is relevant, though not entirely determinative), the question is, what did they do about it, and what would they do today? I think that mainly what they did was create a government of limited powers; a federalist system; a bi-cameral legislature elected from different constituencies; frequent elections to the lower house; three independent branches of government; and some transparency requirement in government (that “journal” thing I mentioned above). Most of these safeguards against corruption have, unfortunately, been significantly eroded. What they did not do is restrict political speech and participation. In fact, they specifically protected those, using language so strong – “no law” – that most observers and certainly most reformers argue that it can’t possibly mean what it says.
- Buckley doesn’t attempt to transport the framers use of the word “corruption” to modern times. Rather, it considers the structure, language, and values of the Constitution, and attempts to determine if restrictions on political participation can be justified consistent with that document. Buckley never says anything along the lines of “the framers suggested that ‘corruption’ or its appearance could justify restrictions on political participation.” Rather, they argue that a particular definition of “corruption” – quid pro quo – can justify some restrictions on political participation. The question is not what the framers meant by corruption. To the extent that the framers matter (and again, I think they do), the question is, what alleged solutions to the problem does the constitution allow.
- And this is where the Gans/Lessig approach comes up short. There is really no evidence, and they certainly do not present any, suggesting that the Founders intended for their solution to be a permissible one to the broad problem of corruption. I won’t attempt here to match their exhaustive list of 325 discussions of “corruption,” but will cite just one, which I think largely summarizes the Framers views. It’s the classic Federalist #10: “there are two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence… It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less a folly to abolish liberty, which is essential to political life, … than it would be to wish the annihilation of air, which is essential to animal life.” Notice that #10 is the first of Madison’s contributions to the Federalist Papers, and the first to begin dealing with the subject of domestic governance. (The first nine papers, by Jay and Hamilton, argue for the union as a bulwark against foreign and domestic wars.) What essentially follows #10 are a lengthy series of papers dealing, as often as not, with the question of controlling faction, instilling virtue in government, and preventing institutional corruption – through the types of powers, checks and balances I listed above, but never through limiting political speech and association.
Of course, the Federalist Papers are not the Constitution, and they are not the only thing the Founders had to say about the Constitution and government. But when we look at the whole record (including the influential arguments of those who opposed the Constitution), I think that the Lessig/Gans theory that some vague “dependence corruption” justifies broad limits on political participation falls apart. It’s not that their research is wrong. It’s tempting to say it is beside the point, but that’s not quite right either. It’s more that they simply ignore all the evidence and reason that suggests that their proposed solution is not justified by the Constitution.
But let’s get back to Buckley and McCutcheon. My criticism of Gans/Lessig is not that they are “living constitutionalists.” It is that they refuse to grapple with Buckley on its own terms, and that their premise (the Founders were concerned about institutional corruption more than quid pro quo issues) does not justify their conclusion (that, therefore, lots of regulation of political speech and association is constitutionally permissible). My criticism of Gans/Lessig is that they are taking a wooden approach to labels, rather than looking at principles and powers. I accuse them of excessive formalism, the very opposite of what Gans takes to be my criticism, and it’s a particularly odd formalism because “corruption” isn’t even used in the Constitution.
I’ll close with the same as Wednesday’s post:
“[T]he question in McCutcheon, unless the Court wishes to renounce Buckley’s approach, is whether or not the aggregate limits are necessary to prevent quid pro quo exchanges. McCutcheon’s case is strong. It’s hard to see how a candidate is corrupted by a $2600 contribution given to someone else’s campaign.
“It’s also hard to imagine, though, that the Founders would really have favored a government bureaucracy policing political spending, or favored such constraints at all. As the late Senator Eugene McCarthy used to say:
“‘They didn’t end the Declaration of Independence with a pledge of ‘Our Lives, Our Sacred Honor, and Our Fortunes Up to $1000 per Election.’”
(Update, 11:35 a.m., Aug. 2): My colleague Allen Dickerson, Director of Litigation for CCP, makes the following observation:
“The word ‘corruption’ occurs once in the Constitution, that I can find, and never in the context Lessig is arguing. Just for fun, the one occurrence is in Article III, which states: ‘but no Attainder of Treason shall work Corruption of Blood.’”
