In a Washington Post piece, Rick Hasen argues that if the aggregate individual contribution limits fall in the McCutcheon case, the results could be both good and bad.  To the good: parties could raise and spend more freely, and therefore would be strengthened when more vigorous parties are needed to temper polarization and alleviate governing gridlock.  To the bad: “more” corruption would result from expanded large donor influence over the political process.  Rick wishes that the two goals, clean but also functional politics, could be achieved in tandem, but with the Supreme Court’s  limitation on Congress’s authority to prevent corruption, he is convinced that we might have to accept more corruption in return for possibly better government.

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. 

Consider this program to—

RESHAPE AMERICAN POLITICS

Represent.Us is not just building a movement in support of the [American Anti-Corruption] Act, we’re going to use our collective power to stand against those who stand for corruption. If it becomes law, the Act will completely reshape American politics and policy-making and give people a voice.

This is a bold claim that the sponsors of the American Anti-Corruption Act have made. Perhaps “bold” is the wrong word; “audacious” might be more accurate. The sponsors declare that the adoption of their proposal will “completely” reshape American politics and that it will be “completely transformative” in giving the people a voice in their government.

A scan of recent days’ writing reveals two lines of argument about the Supreme Court’s failings in campaign finance. One holds that the Court’s understanding of politics is weak and leaves it helpless to grasp, in practical terms, the issues presented. It is suggested that Congress knows best; its members, also political candidates, are experts in the electoral process. Others argue that there is hope for the Court but it would require an improvement in the arguments it hears, and Professor Lessig and his allies continue to urge that the Justices be pressed on his “originalist” argument for an expansive view of the corruption—“dependence corruption”—that Congress should be empowered to control.

There is more to add in each instance to round out what the proponents of these points of view have chosen to offer.

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.