Why Professor Lessig's “Dependence Corruption” Is Not a Founding-Era Concept

Abstract

Abstract

Professor Lawrence Lessig argues that in deciding McCutcheon v. Federal Election Commission, the Supreme Court should be guided by its prior decision in Buckley v. Valeo. In Buckley, the Court held that the government's interest in preventing actual corruption or the appearance of corruption outweighed competing First Amendment interests, and for that reason the Buckley Court upheld federal statutory campaign contribution limits. To be sure, Buckley was not an “originalist” opinion: the Court did not assert that its “corruption” rationale was part of the Framers' eighteenth century plan. Professor Lessig argues that when deciding the reach of Buckley's corruption rationale, the Court should be guided by the Framers' understanding of “corruption,” as opposed to the modern one announced in Buckley. Lessig's position has been criticized on theoretical grounds: it is neither wholly modern (per Buckley), nor wholly originalist (in any traditional sense). I will leave those abstract methodological concerns to others. Here, what is important to note is that Lessig claims to have identified a stable, unified meaning as to how the Framers (and the public during the Framers' era) understood corruption in relation to the Constitution of 1787–1788: the Constitution of the Framers and Ratifiers. I contest his position: no such unified concept existed in 1787–1788. And if it did exist, Lessig has failed to excavate its details from our long lost past; he has failed to delineate the concept's contours; and he has failed to explain its precise implications for election law and, more importantly, for all (or, indeed, any) of the other areas of law which any such newly resurrected constitutional concept would necessarily impinge on.