Wednesday, October 23, 2013

Why Professor Lessig’s “dependence corruption” is not a founding-era concept

A recent line of highly original scholarship, first promoted by Professor Zephyr Teachout of Fordham Law in 2009, argued that the Constitution embodied a nontextual anti-corruption principle, inhering in the Constitution’s structure, which (potentially) trumped First Amendment concerns in the elections context. Correct or not, Teachout’s constitutional vision was, broadly speaking, an originalist one.

By contrast, Professor Lawrence Lessig of Harvard Law School argues that in deciding McCutcheon, the Court should be guided by its prior decision in Buckley v. Valeo (1976). 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.


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