Corrupt and Unequal, Both

Fordham Law Review, Nov 2015

Rick Hasen has presented the issue of money in politics as if we have to make a choice: it is either a problem of equality or it is a problem of corruption. Hasen’s long and influential career in this field has been a long and patient struggle to convince those on the corruption side of the fight (we liberals, at least, and, in an important sense, we egalitarians too) to resist the temptation to try to pass—by rendering equality arguments as corruption arguments, and to just come out of the closet. Hasen had famously declared that the corruption argument supporting Austin v. Michigan Chamber of Commerce was a fake and that the only basis for justifying the ban on corporate spending in Austin was equality, not corruption. And the U.S. Supreme Court famously (in our circles at least) agreed, in the process of striking down the ban on corporate spending in Austin and everywhere else. Thus, Hasen argues, it is a fool’s errand to fake the corruption argument. We need instead, Hasen has constantly counseled, a bit of egalitarian pride. Be true to ourselves, Hasen tells us, and give up the pretense of corruption talk.

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Corrupt and Unequal, Both

Lawrence Lessig, Corrupt and Unequal, Both Corrupt and Unequal, Both Lawrence Lessig 0 Harvard Law School 0 0 This Symposium is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information , please contact Part of the State and Local Government Law Commons Recommended Citation - Article 4 Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Lawrence Lessig* Rick Hasen has presented the issue of money in politics as if we have to make a choice1: it is either a problem of equality or it is a problem of corruption. Hasen’s long and influential career in this field has been a long and patient struggle to convince those on the corruption side of the fight (we liberals, at least, and, in an important sense, we egalitarians too) to resist the temptation to try to pass—by rendering equality arguments as corruption arguments, and to just come out of the closet. Hasen had famously declared that the corruption argument supporting Austin v. Michigan Chamber of Commerce2 was a fake3 and that the only basis for justifying the ban on corporate spending in Austin was equality, not corruption.4 And the U.S. Supreme Court famously (in our circles at least) agreed,5 in the process of striking down the ban on corporate spending in Austin and everywhere else.6 Thus, Hasen argues, it is a fool’s errand to fake the corruption argument. We need instead, Hasen has constantly counseled, a bit of egalitarian pride. Be true to ourselves, Hasen tells us, and give up the pretense of corruption talk. But as much as I admire Hasen’s persistence and increasing passion— and I have a privileged perspective in this because I have had the pleasure of reading his forthcoming Plutocrats United,7 a book that will certainly mark him as the dean of this field—I think that he has presented us with a false dichotomy. It is not either corruption or equality. It is both. Our current system for funding campaigns is corrupt, but it is corrupt precisely * Roy L. Furman Professor of Law and Leadership, Harvard Law School. This Article is part of a symposium entitled Fighting Corruption in America and Abroad held at Fordham University School of Law. For an overview of the symposium, see Jed Handelsman Shugerman, Foreword: Fighting Corruption in America and Abroad, 84 FORDHAM L. REV. 407 (2015). 1. See generally Richard L. Hasen, Is “Dependence Corruption” Distinct from a Political Equality Argument for Campaign Finance Laws? A Reply to Professor Lessig, 12 ELECTION L.J. 305 (2013). 2. 494 U.S. 652 (1990). 3. See RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V. GORE 112–14 (2003). 4. Id. 5. See Citizens United v. FEC, 558 U.S. 310, 381 (2010) (Roberts, C.J., concurring). 6. See id. at 365 (majority opinion). 7. RICHARD L. HASEN, PLUTOCRATS UNITED (forthcoming 2016). because it violates a certain kind of equality. The violation is not an equality of speech, but an equality of citizenship. Let me begin in familiar territory: Is it corrupt? To get the sense in which the argument that I have made—and that Zephyr Teachout’s brilliant book, Corruption in America,8 does the real work to defend—is an argument about “corruption,” we need to start with a key, analytical point. There is a difference between predicating corruption of an individual and predicating corruption of an entity—not a difference in degree, but a difference in kind. To say that an entity is corrupt is not to say that it is filled with corrupt individuals—it may or may not be. It is perfectly conceivable—conceptually—to imagine a corrupt institution filled with noncorrupt individuals. And it is perfectly conceivable—conceptually—to imagine a noncorrupt institution filled with many corrupt individuals. The reason for this is that the word “corruption” is describing different things when predicated of an institution, rather than of an individual—not necessarily, but conceivably. An institution is a system. To say that a system has been corrupted is to say that it is not functioning as designed; something has interfered with its ability to function as designed. That interference is the corruption. Take a very practical example: the heat in an apartment building. Imagine each apartment has a thermostat. The thermostat reads the temperature in the apartment and then directs heat to the apartment based on that temperature. We could say, in this sense, the system was designed to create a certain dependence. The amount of heat delivered to an apartment is to depend on the reading of the thermostat, and it is to depend exclusively on the reading of the thermostat in that apartment. Or in Madison-speak, we could say, the heat is to “depend on the reading of the thermostat in each apartment alone.”9 But imagine the wires (...truncated)


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Lawrence Lessig. Corrupt and Unequal, Both, Fordham Law Review, 2015, pp. 445, Volume 84, Issue 2,