Back and forth go the arguments over alternatives to the current Court’s campaign finance jurisprudence.   The scholarship it produces can be interesting, and the passions behind it lively, but the question always remains whether constitutional theory can result in manageable guidance to the Court.  This key question is one that Larry Lessig and others advancing an originalist anti-corruption theory of jurisprudence have had difficulty answering.  Without this answer, their work encourages hard-core opponents of any regulation to believe, or to claim, that  the alternative to Buckley—and to the current Court’s gloss on Buckley—is effectively limitless government authority to restrict spending on politics. 

The opportunity for this claim is presented clearly in the most recent writing of one of the proponents of the Anti-Corruption Principle, Zephyr Teachout.   In a recent piece, she argues that we have to recognize broader constitutional “purposes” as a guide to judicial decision-making. Zephyr Teachout, Constitutional Purpose and the Anti-Corruption Principle, Northwestern University Law Review Colloquy (January 22, 2014), available at

The purposes she has in mind are variously described in her article—“general” purposes, “central” purposes, “substantial” purposes, or “global” purposes.  Id. at 3, 4, 15, 16.  Teachout insists, as does Lessig, that the anti-corruption purpose is found throughout the Constitution—in the Foreign Emolument and Incompatibility Clauses, for example.  While others have called her historical analysis into question, she asks in this latest piece that even those who dispute that there is “overwhelming” evidence of an anti-corruption purpose at least consider that some such “purpose”—if it could be established—could help courts decide campaign finance cases.

They might consider it, but it is highly unlikely that, having done so, they would come over to her side.  For it is still very hard to see how this “purpose,” should one accept it for the sake of argument, could aid a court in deciding cases. In the McCutcheon case, the brief filed on behalf of Professor Lessig urged the Court to take the anti-corruption principle or purpose into account in resolving the constitutionality of the aggregate individual contribution limit—but it failed to show how this could be done with any rigor.

The brief did suggest, however, the way the theory could function more loosely, as a thumb jammed onto the scales. The case for retaining the limit in McCutcheon has been built on hypotheticals about the corruption just around the corner if the aggregate limit is eliminated. With only this to go on, the  anti-corruption principle or purpose seems intended to settle any doubt in favor of regulation.  Question: Is there is any imaginable risk of corruption?  Answer:  If so, the founders were concerned with corruption—it is a “global purpose” of the Constitution—and the Court should sustain regulatory restrictions.  When in doubt….

The trouble is that campaign finance issues—the ones that are most consequential and divisive—are complex and implicate deep sensitivities about political speech and association.  There is always doubt.  The “principle” Teachout espouses seeks to dilute that doubt, or drain it of significance, by introducing into adjudications a fluid presumption based on a highly controversial claim about the central “purpose” of the Constitution.

This is not an objection to provocative scholarship, and perhaps over time, the search by Lessig,  Teachout and others for a new jurisprudential vision may bear fruit. In the meantime, however, Lessig and Teachout are engaged scholars, active on behalf of reform proposals, in the course of which they advocate for the theories they embrace.  When they argue for these projects, they are making their case for the best policy, but also, and explicitly, supporting that case that appeals to the Anti-Corruption Principle. See, e.g., Adam Smith, PCAF Board Member Zephyr Teachout Submits Testimony to NY Moreland Commission, Public Campaign Action Fund (Sept. 17, 2013), (citing founders’ deep concern about corruption). The members of their audience who are undecided or skeptical could imagine they are being invited to sign onto a regulatory future shaped by an indeterminate conception of constitutional “purpose.” Not too many who had doubts in the first place will find them answered by this theory.

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