“Dependence Corruption” Before the Supreme Court

July 29, 2013
posted by Bob Bauer

Among the briefs being filed with the Supreme Court in the pending test of aggregate contribution limits, McCutcheon v. FEC, Docket No. 12-536 (U.S. 2013), Professor Lawrence Lessig’s will draw its fair share of attention. Brief for Professor Lawrence Lessig as Amicus Curiae Supporting Appellee, McCutcheon, Docket No. 12-536. In supporting these limits, he has introduced the Court to his “dependence corruption” theory of regulation. His choice to do so, in this case and in this way, may have been unwise, because whatever may be the theory’s utility or power in other contexts, it does not show especially well in this one.

First, it is not clear from the brief how dependence corruption can contribute to the resolution of the case before the Court. Corruption dependence comes across as a sort of background presumption that can be invoked in favor of regulating political contributions. The government’s interest in preventing corruption is “broad” and “deeply rooted in the Constitution’s text, history, and structure,” Lessig Br. at 4, 20, and it bolsters and provides “strong” support for the challenged limits. Id. at 21, 29. How so? The brief never turns that corner. It might be said that Lessig’s theory is mood music that reinforces a judicial disposition to uphold limits. But as an aid to legal analysis and decision, it doesn’t rise much beyond its appeals to “history,” “structure,” “text” and “broad interest.”

Second, even as Lessig assures the Court that his theory is consistent with Buckley and its progeny, he does not engage with a central question forced by Buckley jurisprudence. Are the aggregate limits contribution or expenditure limits? This is a threshold and, under his analysis, a dispositive question: if the two year cap is a contribution limit, he stands of a chance of winning, but if it is an expenditure limit, the chance vanishes. The brief he files passes silently over the issue, assuming (apparently) that any mechanism for enforcing a contribution limit is itself a contribution limit.

The brief’s subordination of conventional legal analysis to the elaboration of the theory of corruption dependence is also in evident in his treatment of the subsidiary set of aggregate limits within the total two-year cap of $123,200—i.e. of this sum, no more than $48,600 may be contributed to all federal candidates, with the balance allocated between party and non-party committees. Professor Lessig’s treatment of this issue is none at all: he says nothing at all about this second, subsidiary set of aggregate limits but refers to the McCain-Feingold amendments, which included these limits, as “simply an updated version” of the law since Buckley. Id. at 29. Yet these limits are very much before the Court. The question they raise is why, within the overall limit, a donor is denied the opportunity to allocate as she chooses the sums legally available to parties, other political committees and candidates. Professor Lessig seems to believe that, with no additional analysis required, Congress’s broad authority to regulate contributions simply translates into justification of these limits.

The brief perhaps omits discussion of these limits because its theory would not advance the case for them. If a donor wishes to spend up to the limit allowed by the law, the government requires a certain distribution of funds. If the government-directed distribution does not suit the donor, she is unable to make full use of the limit. It is hard to see here an anti-corruption interest in this configuration of the limits, and certainly nothing driven by “dependence corruption” concerns.

Third, Lessig’s jurisprudence, which is anchored in the contribution/expenditure distinction, travels a peculiar direction. He does not wholly oppose the decision in Citizens United, which he has characterized elsewhere as in part legitimately protective of free speech—of the right of a nonprofit corporation to market a political film. Lawrence Lessing, A Reply to Professor Hasen, 126 Harvard Law Review Forum (I) 61 (2012)(unlimited nonprofit corporate spending to promote a political film is is “an instance of protected speech”). He is unhappy with Citizens United’s role in the rise of super PACs, chiefly bothered by the inability of donors to contribute to them without limit. Id. All told, his theory leaves him defending corporate independent spending while arguing, in this case, for tighter limits on individual giving to political parties and candidates.

Maybe Lessig’s presentation suffers, too, from his insistence that the theory he advocates is “perfectly consistent” with Buckley and Citizens United. Lessig Br. at 3. It is not at all obvious that the first of these claims is true, and the second is a bit of a mystery, since Lessig has elsewhere referred to Citizens United as an “embarrassment” and a “real problem” that has “created a new, and even more virulent instance of precisely the corruption I’ve described.” Lawrence Lessig, Lesterland: The Corruption of Congress and How to End It (Kindle Single) Kindle Locations 510, 524, 618 (2013). The more profound shortcoming is that if he is seeking to work within the jurisprudence established by these cases, he has not come up with a doctrinal innovation or analytical device that will help to decide cases, preferably convincingly.

The Appendix to the brief, a “catalogue” of references to “corruption” in the Constitutional debate, reveals the problem. It runs for over 20 pages, Lessig Br. at 1a-23a, citing all Founding Era “instances of ‘corruption’ usage, grouped by type of corruption referenced, date, and speaker.” Id. at 4a. This catalogue is not without interest and it is a testament to Professor Lessig’s deep commitment to his concern over money in politics. The puzzle is how the Court can use this information to establish, in Professor Lessig’s words, the “necessary” and “essential” role of the aggregate limits. Id. at 29, 30. Professor Lessig has proven that he has the will to make this case, but this brief does not show the way.

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