Lessig- Originalists Making It Up Again: McCutcheon and ‘Corruption’
by Lawrence Lessig
At the core of the disaster that is the Supreme Court’s McCutcheon v. FEC decision lies a mistake. A strategic mistake, made by the government. In this mistake, we can see all that’s wrong with modern American constitutional law.
From the first moment that this case arose, it has been obvious to everyone that the decision would turn on the meaning of the word “corruption.” Congress has the power to regulate campaign contributions only if it is doing so to regulate “corruption.” So the central question raised by McCutcheon was this: Is a law limiting aggregate contributions a law designed to limit “corruption?”
The answer to that question obviously turns on the meaning of the word. If “corruption” means just quid pro quo—the stuff regulated by bribery laws—then it was clear to everyone that it would be tough going for the government to defend aggregate limits.
The reason was pretty obvious. The Court has upheld limits on individual contributions to avoid quid pro quo corruption or the “appearance of corruption.” But the Court has also said that those individual limits can’t be set too low, or else the limit would have no connection to corruption or the “appearance of corruption.” So a contribution limit of $500, for example, would plainly fail the Court’s quid pro quo rationale, since none would think that a contribution of $500 bespeaks quid pro quo corruption.
So what if someone wanted to give $500 to every Democratic candidate running for Congress?
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http://www.thedailybeast.com/articles/2014/04/02/originalists-making-it-up-again-mccutcheon-and-corruption.html
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