Originalism: It’s not just for conservatives anymore

The following essay is part of our online symposium on McCutcheon v. Federal Election Commission.

McCutcheon v. Federal Election Commission, in which the Supreme Court will consider the constitutionality of aggregate limits on campaign contributions to candidates and political parties, presents just the latest challenge for defenders of campaign finance law. They’ve seen the Roberts Court dismantle several pillars of the post-Watergate edifice of election finance regulation, from restrictions on corporate and union electioneering to public financing. Central to these decisions limiting the authority of government to regulate money in elections has been the majority’s opposition to expansive definitions of political corruption, the government interest cited most often by reformers to justify these laws. While agreeing that the avoidance of quid pro quo corruption, akin to bribery of individual lawmakers, is compelling, the Court has been less hospitable to claims that campaign finance laws combat the systematic skewing of the electoral process by moneyed interests or minimize the appearance of corruption.

Amicus Briefs – The Framers’ concerns for corruption

One interesting aspect of McCutcheon is the effort by proponents of campaign finance law to defend those broader understandings of corruption by way of the Framers. Two amicus briefs in particular, one filed by Harvard Law Professor Larry Lessig and the Constitutional Accountability Center (CAC) and another filed by the Brennan Center for Justice, make detailed originalist arguments about how the Founders viewed political corruption and the importance they placed on combatting it in the Constitutional Convention and ratifying debates.  (Disclosure: I am on the board of the Brennan Center and have filed briefs previously with CAC, although I was not involved in any way with either organization’s filings in McCutcheon.) These briefs show that James Madison, Alexander Hamilton, and many other Framers relied on a much broader understanding of corruption than that embraced by the current Court. And they reflect an emerging trend in legal scholarship and litigation: the use of originalist history and tradition to support laws favored by political liberals.

The Lessig/CAC brief builds on Lessig’s scholarly research to argue that elimination of corruption was a “core concern” of the Framers in designing the Constitution. As Hamilton wrote in Federalist 68, “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.” The Framers understood corruption to include not merely bribery of individual lawmakers but also more institutional and systematic forms of undue influence. These broader forms of corruption are captured by the idea of “improper dependence”: the Framers thought that the federal government must only be dependent upon what James Madison in Federalist 39 called “the great body of the people” and “not [on] an inconsiderable proportion or a favored class of it.”

When the Framers discussed corruption at the Constitutional Convention, the Lessig brief argues, they were primarily concerned with corruption of institutions by this sort of improper dependence, not individual lawmakers by quid pro quo deal making. This claim is backed by empirical analysis: of the 325 usages of the term “corruption” in the standard body of Framing-era documents, fifty-seven percent referred to institutional or systematic corruption. Quid pro quo corruption, by contrast, was only used six times.

The Brennan Center brief, quoting legal scholar and Fordham Law Professor Zephyr Teachout, argues that the Framers were “‘obsessed with corruption.’” The Brennan Center brief places a bit more emphasis than the Lessig/CAC brief on the value the Framers placed on avoiding the appearance of corruption. The Framers thought it essential that republican government have what James Wilson called “the confidence of the people.” Public office was a trust, in the Framers’ view, and elected officials were fiduciaries of the people who could be easily overwhelmed by the undue influence of self-interested factions. Avoiding the appearance of corruption, the brief implies, is not the makeweight that some Justices appear to believe it to be. Rather, it was at the very heart of the Framers’ constitution-making project.

Both briefs discuss how the Framers’ concerns for corruption, broadly understood, shaped the text and structure of the Constitution. From various restrictions on lawmakers, such as the Emoluments Clause (barring senators and representatives from serving in executive branch positions), to the division of powers among the three branches, the text serves to reduce the chance that lawmakers will come to be dependent upon anyone but the body of the people. The Brennan Center brief also argues that combatting undue influence and maintaining the people’s faith in government are government interests whose legitimacy has been fortified by longstanding tradition.  Originalists often look to post-Founding tradition to provide an additional gloss on the proper way to understand the Constitution. In this case, the Brennan Center points to the scandals and corruption of the Gilded Age, which sparked the first movement to regulate campaign financing, and Watergate, which inspired the current framework of federal laws on the issue.

The limits of liberal originalism

Originalism as a method of constitutional interpretation is most often associated with judicial conservatives.  Born in reaction to the expansive rulings of the liberal Warren Court, originalism came to prominence in the era of the Reagan Administration, backed most notably by the young scholar, judge, and eventually Justice, Antonin Scalia. In recent years, however, history and tradition have been more readily employed by judicial liberals, including Yale Law School scholars Akhil Amar and Jack Balkin. In the realm of constitutional litigation, CAC has become a prominent voice for historical analysis in a wide variety of controversies, ranging from affirmative action and voting rights to free speech and the right to bear arms.

In some ways, the McCutcheon amici highlight the limits of liberal originalism. If the embrace of history is merely strategic, designed to persuade one member of the Roberts Court’s conservative majority to vote for liberal outcomes (say, upholding aggregate contribution limits), its impact is likely to be quite minimal. None of the Justices is consistent in his or her use and reliance on history, not even Justices Clarence Thomas and Scalia, the most prominent proponents of originalism on the Court. The Justices’ votes on a wide range of significant constitutional issues can’t be explained by history, which one can see by looking no further back than June of this year. Whatever led the Justices to rule the way they did in Fisher v. University of Texas (affirmative action), Shelby County v. Holder (voting rights), and United States v. Windsor (marriage equality), it wasn’t a commitment to the original public meaning of the Constitution. Moreover, the Justices have ruled on numerous campaign finance cases in the past and have well-defined views of what qualifies as a constitutionally permissible motive for government regulation of money in politics. None is likely to be suddenly persuaded by these briefs – or any others – that the Justices have been wrong all these years.

Another problem with originalism, whether conservative or liberal in its orientation, is that skilled judges can always find a way to distinguish or marginalize historical arguments. In McCutcheon, one question that remains unanswered by the history briefs is whether the Framers believed it was constitutionally permissible to combat what they saw as corruption through limitations on First Amendment speech and association. It wouldn’t be surprising to see Justice Scalia write an opinion agreeing with the briefs that the Framers had a broad view of political corruption yet insisting that such corruption was remedied by the Constitution in general and the First Amendment in particular. The way to stop “improper dependence,” he might write, is to prevent elected officials from manipulating political speech and association through campaign finance rules, like aggregate contribution limits. Indeed, some of the Justices seem to believe that campaign finance laws are themselves evidence of corruption: elected officials trying to maximize the power of incumbency and protect themselves from the oversight of “the great body of the people.”

Nonetheless, the liberal embrace of history is still a valuable enterprise. History has long been recognized to be an important tool in understanding and interpreting the Constitution, even if there are other tools that ought to be used as well. Because of the association of originalism with political conservatism, however, history has often been shunned by liberals – to the impoverishment of federal constitutional law.

The Constitution is a profoundly progressive document, designed and amended over the years to guarantee equal citizenship to an ever-larger share of the people. For all its flaws and missteps, the Constitution at the time of the Founding was the most liberal charter of governance the world had ever known; and after the Second Founding of the Reconstruction Era, its progressive promise was expanded considerably. Every constitutional amendment, perhaps with the exception of the abandoned Prohibition Amendment, has been about making our society more equal, more just, more free.

Closing thoughts

For years, liberals have struggled to articulate a constitutional philosophy beyond “living” constitutionalism. Polls show that Americans view evolutionary constitutionalism with a certain suspicion. Thus, it is incumbent upon those who support a progressive view of the Constitution to promote a methodology of constitutional interpretation that will maintain legitimacy in the eyes of the public. Originalism, the McCutcheon amicus briefs suggest, may finally be emerging as one piece of that constitutional method.

Properly understood, history is not something that liberals have to run away and hide from. Indeed, given that the historical meaning of the Constitution was always to expand personal liberty and guarantee a truly republican form of government, it ought to be something liberals embrace.

Adam Winkler is a professor of law at UCLA School of Law.