Author: Zephyr Teachout

It is axiomatic that the beginning of ideology is perception. If I do not perceive, for example, continuous identity (see Parfitt), then the concept of personal responsibility is at least troubled. If I perceive God to exist–with good intentions–some other beliefs flow from that. If I perceive a difference between acts and omissions, the ideology of “first, do no harm” is sensible; if I perceive no such difference it is not. And, within the realm of law, if I perceive markets and government as opposite, or private and public as distinct, various possible sets of ideologies flow from that. One cannot protect markets from the government if markets are the government, and one cannot protect the public sphere from the private if there is no difference. Some of these kinds of perceptions can be tested for their truthiness–others are neither true not true, just sets of perception categories.

It becomes easy, then, to support ideologies we are skeptical about by using the rhetorical framework which assumes a set of perceptions.

Something I’ve been wondering about recently: the role of the perception of the existence of corporations in ideology. Corporations can be described as existing–as most modern ideologies do–or there is no such thing as corporations, there are merely rights and obligations and liabilities that attach to people due to rules. The collection of rules can be corporate law without having to reify the corporation as a particle of the political and economic imagination. I haven’t fully worked this out yet, but my general, background guess is that the language of “corporations aren’t people,” much like “don’t think like an elephant,” actually creates the personification of corporations, which helps maintain and strengthen the sense of their existence–their inevitable existence–and the strengthening of the set of rights related to individuals because of corporate law.  “Corporations are evil,” or “are profit maximizing”–all do the same thing–they anthropomorphize a set of rules. That anthropomorphizing both condemns and naturalizes at the same time.

Inasmuch as some corporate rules might be socially beneficial, and others not, some de-naturalization of the corporate descriptor seems like it would be useful. In other words, trying to talk about corporate law without reifying corporations might actually do more to open up our imagination about corporate law.

Thoughts?

I have argued in several articles and a forthcoming book that the Anti-Corruption Principle was and is a foundational constitutional principle. Larry Lessig has argued the same in a book, several articles, and a brief before the Supreme Court. He also runs a fascinating tumblr of corruption conversations at the convention. We both show how it motivated the Constitutional convention and was the overwhelming topic of the convention. The founding drafters would judge their own success or failure in terms of the Constitution in terms of whether or not it protected against corruption.  As George Mason said as the Constitutional Convention got under way: “If we do not provide against corruption, our government will soon be at an end.” I am not going to recite the argument here–its a substantial, text and history based argument. However, it leads to treating the Anti-Corruption Principle like federalism or the separation of powers–a fundamental structural part of the Constitution.

There are two general disagreements with this view: First, that I, and or Lessig, don’t characterize the meaning of corruption at the time properly (we have slight differences), and second, that it was not and is not a Constitutional principle. Seth Tillman, and Rob Natelson citing Seth Tillman, have both recently argued that there is no such principle. Tillman sees  a kind of smoking-gun flaw with the argument–the evidence that the word “corruption” was taken out of the impeachment clause as a ground for impeachment.

Tillman writes: “But when the Framers had a chance (actually multiple chances) to give this concept prominence in the Constitution’s actual text, the Framers chose not to do so. It is not as if they forgot to use this term or, instead, used some close synonym; rather, they actively took this term out of the Constitution. So why should we today embrace the corruption concept as one having constitutional scope or dimension?”

I have three responses. First, the absence of the word “corruption”  does no more to the anti-corruption principle than the deliberate choice to exclude “separation of powers” does to the separation of powers principle. Second, the reason the word was taken out is because corruption is ill-suited to bad-intent criminal law statutes, and well-suited to prophylactic statutes or constitutional provisions that don’t reference state of mind. Tillman has a common confusion–he treats the scope of the word corruption as that which can be defined in a criminal-law like statute. Third, Tillman’s particular argument contrasts with his general support for the anti-corruption principle.

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This year, because I wanted to rearrange my money and politics section of the Law of Democracy class to coincide with the oral argument at McCutcheon, I ended up teaching Shelby County v. Holder and Citizens United within a few weeks of each other.  One parallel stood out that I don’t believe has been written about (but if it has, in the comments, please let me know!): in each case, the court expressed a preference for a case-by-case remedy instead of a prophylactic remedy to an acknowledged, systematic problem.

For corrupt interactions between wealthy players and candidates, the Court’s preferred solution is bribery law enforcement over a prophylactic statute.  For race-diluting voting law changes, the Court’s preferred solution is individual lawsuits under Section 2 of the Voting Rights Act.

In each case–racial dilution or corruption–proof is hard to come by, and plausible defenses abound, and it may be that the case-by-case approach leads to uneven politically targeted prosecutions that a prophylactic approach avoids.  In the oral argument at McCutcheon, where some Justices seemed–according to most commentators–surprisingly optimistic about the FEC’s enforcement capabilities, and surprisingly unconcerned about the potential political agenda behind the FEC.

JUSTICE SOTOMAYOR: I’m a little confused,  okay? I’m confused because we’re talking in the  abstract. This decision was based on a motion to  dismiss. And there is a huge colloquy about what  happens and doesn’t happen. We don’t have a record below.

— Oral Argument in McCutcheon v. FEC.

One of the more interesting features of the oral argument yesterday in McCutcheon is that it was, as Sotomayor suggests, an argument about facts in a case that was briefed on the law.  The lead briefs relied on theory, not the life of politics (though amici usefully supplemented the portrait of how politics works).

In a previous article (Facts in Exile) I have argued that the growing abstraction in political law cases has led to more democratically passed laws being struck down, in part because modern Justices don’t have histories with politics (unlike the Justices before Buckley). Yesterday’s argument was a welcome change from that tradition–it was all about political strategies and Justices trying to imagine how it would work, in practice, if all aggregate limits were struck down.

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I’m beginning to think Roberts wanted McConnell at oral argument in order to make his radical views seem like a moderate compromise.

[Updated 3:59 PM. In the comments, commenter Bill Placke found this post objectionable because it didn’t add to an understanding of the issues. In response to his concerns, let me flesh it out — I will still be hasty because of time pressures. Many of us were wondering why McConnell was given time to speak. One would be left wondering after oral argument, given that the Justices were not particularly welcoming of McConnell’s views. The sentence above would give some explanation of a puzzling action. Given Roberts’ past actions (Shelby County and the invention of “equal sovereignty”; Randall v. Sorrell and the impatient “enough is enough”; overturning parts of McConnell in WRTL), combined with his lip service to Stare Decisis (Randall), there is reason to think that Roberts like making big steps with campaign finance but (unlike Scalia or Kennedy) framing them as moderate steps.  In this light, the McConnell invitation makes more sense. It reshapes the argument about aggregate limits. With McConnell present at argument, anything less than reframing contribution limits as subject to strict scrutiny will appear more moderate. – ZT]

From early reports (much easier to follow the Election Law Blog than have me reproduce it all here!), the aggregate limits seem likely to be struck down as unconstitutional, but the McConnell argument that all contributions limits should be subject to strict scrutiny is  less likely to prevail.

I will add my own analysis once I get the transcript this evening.

If any institution is non-essential by design, it is the Supreme Court. But today it will decide a case that could lead to more shutdowns.

The current default threat flowed from Citizens United, which led to SpeechNOW, which led to SuperPACS threatening moderate republicans and directly supporting Cruz. If the Court today decides to get rid of campaign contribution limits (which it could do in multiple ways), the relationship between Cruz and Thiel or Koch and Boehner, can be even more explicitly clientilistic.

There are two kinds of bribery laws: prophylactic bribery laws, like the aggregate contribution limits at issue in McCutcheon v. FEC, and laws that require a corrupt motive, or intent to influence, as an element of the crime.

One thing I’d like to see the Court question McCutcheon on is the problematic nature of the laws that turn on motive. If they are broad, they are deeply chilling — far more so than a clear limit–because they criminalize gifting a thing of value with intent to influence, even in some cases where the thing of value is an otherwise legal campaign contribution. If they are broad, they give enormous power to prosecutors, and juries, and can be used for political leverage. If, on the other hand, they are narrow, they apply only to a small, fumbling bunch of keystone cops who foolishly admit, on paper or with an exaggerated wink, that they are giving their gift because of a particular political action they want to cause or reward.

Motive-based bribery and corruption laws are a weak instrument, as one 19th century casebook called them, with which to fight corruption.

Prophylactic rules–like the Australian Ballot, the Pendleton Act, and contribution caps–don’t cover only corrupt actions, but they clearer, less chilling, and less subject to political manipulation.

McCutcheon argument tomorrow. This case could potentially lead to overturning Buckley v. Valeo, by instituting strict scrutiny for campaign contributions. With strict scrutiny, few campaign contribution limits would survive. Here’s an overview for those of you just starting to pay attention.

The issue in this case is the constitutionality of aggregate spending limits. Does the First Amendment mandate that individuals like Shaun McCutcheon be able to spend more than $123,200 in direct donations to candidates and parties, assuming he is willing to abide by the individual, base limits. Federal law limits the size of individual donations to candidates, national party committees, state and local party committees, and PACs. For instance, an individual can give no more than $2600 to a candidate in any given election. These are base limits. It also limits the total amount an individual can contribute in a two year cycle.  The aggregate limits are currently set at $48,600 for candidates and $74,600 for to non-candidate groups. These are aggregate limits.

This is not about corporate speech, or about entirely independent speech. Federal law does not limit how much an individual can independently spend on a candidate, and since Citizens United and SpeechNOW, individuals can give unlimited amounts to so-called “SuperPACS” which do not donate to candidates or parties but spend independently.

Within the framework set up by Buckley v. Valeo, expenditure limits are strictly scrutinized because they heavily burden First Amendment rights, and contribution limits, while they burden speech rights, constitute a lesser burden and are less strictly scrutinized. Buckley found contribution limits constitutional because they served the governmental interest in fighting corruption and the appearance of corruption. A majority of this Supreme Court, as currently constituted, has stated that only quid pro quo corruption and the appearance of corruption can justify restrictions on political speech. Other governmental interests (such as restricting disproportionate political power or political equality) have been explicitly rejected as justifications.  The scope of what constitutes corruption, however, is still not entirely clear–it appears to be implicit or explicit exchange. (My own view is that the key Justices do not actually know how to make sense of corruption as a concept, being so deeply embedded in an undertheorized public choice political theory–but more on that later.)

There are three basic arguments that aggregate limits are unconstitutional:

(1)    Aggregate limits do not serve the governmental interest in combating quid pro quo corruption or the appearance thereof, and therefore do not survive even the lesser scrutiny given contribution limits

(2)    Aggregate limits,  unlike base limits, are better understood as expenditure limits than contribution limits, and therefore should be subject to strict scrutiny

(3)    A Constitutional distinction between the First Amendment interests in contributions and expenditures is analytically untenable, and therefore contribution limits should be subject to the same strict scrutiny applied to expenditure limits

The key Justices to watch are Alito, Roberts, and Kennedy. While the initial briefing was on narrower grounds, the Court’s invitation to Mitch McConnell to participate in oral argument signals a potentially sweeping decision. McConnell submitted a brief arguing that that contributions limits should be subject to strict scrutiny. I happen to believe this is an area where oral argument can make a difference. I tend to think the more this is discussed abstractly, the better it goes for McCutcheon, and the more grounded in political realities, the better for the FEC.

McCutcheon v. FEC, the case to be argued on Tuesday, concerns the constitutionality of aggregate limits. Only about 1200 people last cycle came close to the aggregate limit threshold (then $117,000): this case will decide whether they will be able to give unlimited millions, directly.

I am on the Public Campaign Action Fund Board. Public Campaign has an important report, profiling the people directly impacted. Here are some of the key facts:

–> Nearly half live in the richest one percent of neighborhoods.
–>Twenty-eight percent come from Wall Street and the financial sector.
–> Only 24 — TOTAL — live in neighborhoods that are majority African American or Hispanic

One thing to watch for in the McCutcheon argument: how do members of the Court see the relevant people in this case? Do they see this as a case about the speech rights of 1200 people, or about the nature of the public’s relationship to public officials? And how do they try to describe the impact on the rest of political society when 1200 people can give millions directly to candidates in order to influence their policies?