As the Supreme Court once again prepares to examine money in elections, the justices should consider what the framers of the Constitution thought about corruption.
And what the framers thought has been gleaned by a Harvard law professor and two of his students from each use of the word "corruption" in the founding records—325 recorded uses—and presented in an amicus brief supporting the government in McCutcheon and Republican National Committee v. Federal Election Commission.
The McCutcheon case challenges the federal limits on the amount of money that a donor may contribute to federal candidates and political action and political party committees during a two-year period. The challengers contend the limits violate the First Amendment and can no longer be justified as necessary to prevent corruption or the appearance of corruption.
Three years ago in Citizens United v. Federal Election Commission, a five-justice majority struck down the federal ban on independent campaign expenditures after finding they did not lead to corruption or the appearance of corruption. The majority narrowly viewed corruption in that context as quid pro quo corruption.
"I've always been struck by the fact that the Supreme Court has approached this issue of corruption completely ahistorically," Harvard's Lawrence Lessig said. "The Burger Court in Buckley v. Valeo gave us a framework around which the court has analyzed campaign finance reform, but that framework didn’t purport to say what corruption would have been historically.
"That’s significant. Five justices claim to be originalists. And if they are keen to understand what the nature of corruption is that would justify Congress' regulations to protect against corruption, it would seem they should at least ask the question what the framers understood corruption to mean."
And so Lessig and his two students set out to answer that question. "I said, 'Let's go find every instance of the word's usage and let's code it and see what the usages were to get a sense of what they would have thought about regulations to prevent corruption.' "
What they discovered was that while the Framers understood quid quo pro corruption, that was not the type of corruption that most concerned them.
"They were much more concerned about corruption of an institution, and when they tried to decide how an institution might be corrupted, they focused on how the institution would develop dependency," said Lessig, author of Republic Lost: How Money Corrupts Congress—And A Plan To Stop It. "Improper dependency is the way to understand how an institution might become corrupted. Dependence on the people alone is proper dependency."
Using online databases of the framing texts, Lessig and his students isolated 325 recorded uses of the word "corruption" to describe an individual or an institution. Fifty-six percent (183) referred to corruption of an entity, while 44 percent (142) spoke of corruption of an individual. There were five mentions of "quid pro quo" corruption and 29 mentions of "improper dependence" corruption. All "quid pro quo" usages referred to individual corruption. On the other hand, only nine of 29 (31 percent) references to "improper dependence" corruption located that corruption in an individual, with 20 of those 29 (69 percent) references speaking of corruption of an entity.
(Their methodology is explained in the amicus brief. An online, interactive database, located at http://ocorruption.tumblr.com, contains the full quotes as well as links to the original source so that the quote may be viewed in context.)
"If one classifies references by the branch of government that is hosting the corruption, most usages discuss corruption of the legislative branch," Lessig's amicus brief states. "Of these, about half, but fewer than half, refer to 'individual' corruption."
An originalist, he said, should allow regulations designed to avoid improper dependency because it is a way to avoid corruption.
In his amicus brief, filed on his behalf by the Constitutional Accountability Center's Elizabeth Wydra, Lessig argues:
"Without aggregate limits, huge hard money contributions of the sort federal campaign finance laws were designed to prevent would likely return. The result would be increased dependence on an even tinier group of donors willing to bankroll campaigns. McCutcheon’s argument turns the Constitution, which was designed to prevent such improper dependence, on its head."
Lessig believes his argument is consistent with Citizens United and the court's other campaign-finance precedents.
"I don’t think the court has been asked and has answered the question whether corruption is only quid pro quo corruption," he said. "If Citizens United is read to say the only corruption is quid pro quo corruption, then my argument is inconsistent. But originalists should not say that."
Contact Marcia Coyle at firstname.lastname@example.org.