Originalists Making It Up Again: McCutcheon and ‘Corruption’
At the core of the disaster that is the Supreme Court’s McCutcheon v. FEC decision lies a mistake. A strategic mistake, made by the government. In this mistake, we can see all that’s wrong with modern American constitutional law.
From the first moment that this case arose, it has been obvious to everyone that the decision would turn on the meaning of the word “corruption.” Congress has the power to regulate campaign contributions only if it is doing so to regulate “corruption.” So the central question raised by McCutcheon was this: Is a law limiting aggregate contributions a law designed to limit “corruption?”
The answer to that question obviously turns on the meaning of the word. If “corruption” means just quid pro quo—the stuff regulated by bribery laws—then it was clear to everyone that it would be tough going for the government to defend aggregate limits.
The reason was pretty obvious. The Court has upheld limits on individual contributions to avoid quid pro quo corruption or the “appearance of corruption.” But the Court has also said that those individual limits can’t be set too low, or else the limit would have no connection to corruption or the “appearance of corruption.” So a contribution limit of $500, for example, would plainly fail the Court’s quid pro quo rationale, since none would think that a contribution of $500 bespeaks quid pro quo corruption.
So what if someone wanted to give $500 to every Democratic candidate running for Congress?
Under the law at issue in McCutcheon, that would not be allowed. $500 given to more than 400 candidates would exceed the limits for aggregate contributions. And thus the crux of the argument Mr. McCutcheon’s lawyers made to the Supreme Court: If it’s not quid pro quo corruption when $500 is given to one candidate, how is it quid pro quo corruption when $500 is given to 400+ candidates?
The answer, obviously, was that it isn’t unless corruption can mean something other than quid pro quo corruption. The only way for the government to win, in other words, was to convince the Court that while corruption certainly includes quid pro quos, it need not be limited to quid pro quos.
The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.
So how is that framing usage relevant to the decision in McCutcheon?
The justices on the Court leading the charge to restrict the meaning of “corruption” to quid pro quo corruption alone are the conservatives. Those same conservatives—Justice Scalia and Justice Thomas most prominently, but Chief Justice Roberts as well—are also the justices who have told us again and again that the method they use to interpret the constitution is “originalism.” Read the Constitution, they have told us, not how we would read it, but how the Framers would have read it. That’s the only “principled,” as we’ve been lectured again and again, way to interpret the document. And on the basis of that method, the Court has struck down acts of Congress repeatedly, and likewise, upheld acts of Congress repeatedly. If the Framers would have done it, an originalist argues, then we should too.
But where is the originalism when it comes to the meaning of the word “corruption?” If the originalists on the Court believe the Framers would have permitted laws regulating the freedom of speech if those laws targeted “corruption,” why would an originalist use an understanding of the term from a 1976 per curiam opinion (Buckley v. Valeo) rather than an understanding of the Framers—corruption as in “improper dependence”—made manifest by the Framers again and again?
Because “improper dependence” is precisely the problem that limits on aggregate contributions are meant to attack. Already we have a system in which Congress is dependent upon the tiniest fraction of the 1% to fund its campaigns. I’ve estimated the number of relevant funders is no more than 150,000 (about the number of Americans named “Lester.”) If aggregate contribution limits are struck, that number will fall dramatically. More will be raised from a smaller number of contributors—maybe as few as 40,000 (about the number of Americans named “Sheldon”). So abolishing aggregate limits will move us from Lesterland to Sheldon City, increasing a dependence on the funders, while conflicting with Madison’s promise of a branch of government “dependent on the people alone.”
That argument may or may not have worked with one of the five conservatives on the Court. There’s no such thing as a slam dunk in law, and this argument depends upon originalism applied not to the Constitution’s text, but to the standard the Court uses to interpret that text.
But the striking fact about McCutcheon is that the government didn’t even try. Originalism is not the language of liberals. It’s beneath them—the weapon of the enemy. So the government’s brief didn’t even hint at the argument that there was no good originalist reason to restrict the meaning of “corruption” to quid pro quo corruption alone. And Justice Breyer in his classically geeky dissent doesn’t even hint at the possible originalist inconsistency—even though the core of his argument is precisely that “corruption” does not mean “quid pro quo corruption” alone.
This is the much bigger pathology that the partisans on the Court have allowed to evolve. Originalism is a method for interpreting our Constitution. It yields conservative results. It yields liberal results. But the most vocal originalists in modern times have been conservatives. And through a carelessness in the application of their own theory, they have allowed the world to believe that originalism is a tool exclusive to the Right.
The liberals have allowed that belief to emerge by acquiescing in conservative inconsistency. So exhausted have they become with the arguments of the other side that they don’t even want to engage.
This is a loss for all of us. Not necessarily because originalism is the theory we all should embrace. But because by giving originalist inconsistency a free ride, the Left has made more likely a whole series of terrible constitutional decisions. McCutcheon is just the latest.