On Wednesday, I had an oral argument “in” (virtually, unfortunately) the Alaska Supreme Court in our case arguing to uphold the state’s law regulating SuperPACs, Patrick, et al., v. Alaska.
We’ve adopted a different strategy in this case from, say, Lieu v. FEC: Our aim is to argue to the originalists on the United States Supreme Court especially that their theory of constitutional interpretation should lead them to embrace an original understanding of the operative term in their First Amendment test — “corruption”—and that such an understanding would allow the regulation of SuperPACs.
If we get to the United States Supreme Court in this case, this will be the third time I will be arguing to originalists on the Supreme Court that their principles should favor my clients.
The first was Eldred v. Aschroft (2003), where the argument was that the original meaning of the Progress Clause (that copyrights shall be for “limited Times”) forbids the practice of perpetually extending copyright terms. We lost 7–2. The originalists stood silent.
The second was Chiafalo v. Washington (2020), where the argument was that the original meaning of the Presidential Electors Clause means that electors have a constitutional discretion to vote. We lost 9–0. The originalists were excoriated by one of America’s leading originalist scholars, Mike Rappaport.
This would be the third case: If Congress is free to regulate campaign speech to address “corruption,” then the originalists should at least allow regulation of the kinds of “corruption” that the Framers were most focused on — what we call here “institutional corruption.” Such “corruption” should count as a permissible “substantial state interests,” regulable under the First Amendment, just as quid pro quo corruption is.
Obviously, these earlier cases had an effect even though we didn’t “win.” We lost Eldred, but Congress has not tried to extend the term of copyrights again (and so since 2019, we’re celebrating, with help from the Duke Center for the Public Domain, Public Domain Day each January 1). We lost Chiafalo, but that case made clear that electors had to follow the will of the people (“here, We the People rule”), and by implication, legislatures too.
But I’ve not been pressing this third case to lose. Naive as I am, and studiously remain, I genuinely believe that there are enough principled originalists on the Supreme Court (at least 2) to join with the non-originalists (3) to uphold the power of states and Congress to protect the “representative integrity” of our democratic process. That should permit the regulation of institutional — as well as individual, or quid pro quo—corruption. That should permit, given the evidence our expert, Professor Adam Bonica testified to, the regulation of SuperPACs.
For me personally, however, whether I argue this case or not, after spending my life as a liberal originalist (see Fidelity and Constraint (2019)), this third time is either the charm or an out. Someday, we’ll see. When I clerked for Justice Scalia, he promised me (and showed me) originalism was not partisan. (See, e.g., County of Riverside v. McLaughlin (1991)). In the last lunch I had with him, he laughed when I reminded him of that but pointed to all the cases where it seemed that wasn’t true.
You can see the Zoom recording of the argument in the Alaska Supreme Court here. Sign up to receive updates about the progress of the case here. The Alaska Supreme Court does not clear its docket each year (as the United States Supreme Court does), so it’s not clear how long it will take for them to render a decision.
Mr. Chief Justice, may it please this court. My name is Lawrence Lessig, and I represent the Respondents, Donna Patrick, James Barnett, and John Lambert.
This Court asked the parties to answer four questions. Respondents agree with APOC’s answer to the first three. The only real difference between us is question four: Whether 15.13.070’s limits on contributions to independent expenditure groups is constitutional.
To introduce the argument on that question, I’d be grateful for a couple of minutes to present a single example that will frame our argument.
As the Court has explained, the question in these cases is whether the speech the state essays to regulate tends to show that “officials are corrupt.” The focus is on particular people and how the speech affects them.
If the targeted speech does not show that “officials are corrupt,” it is not regulable as “quid pro quo corruption.” Respondents concede that under this standard, contributions to independent expenditure groups do not show that “officials are corrupt.”
But it is clear that since the founding, there has been a second conception of corruption that at least at the founding was more prominent than individual or quid pro quo corruption. That conception we’ve called institutional corruption. And the best example is the example our Framers were obsessed with: the corruption of the British Parliament.
As Professor Rakove testified below (see 12–14), the Framers viewed the British parliament as “corrupt.” But parliament was not corrupt in a quid pro quo sense. It was not corrupt because members engaged in bribery. Maybe they did. Maybe they didn’t. That wasn’t the Framers’ point. Parliament was corrupt because it had allowed an improper dependence to develop within parliament. Rotten boroughs made members dependent upon the Crown when parliament was meant to be dependent upon the people. That improper dependence rendered parliament “corrupt.”
But that “improper dependence” — and here’s the critical point — that improper dependence is not “quid pro quo corruption.” To be dependent is not necessarily to have engaged in any quid pro quo exchange. Dependence does not show “officials are corrupt.” But the Framers certainly expected that the government they were founding would have the power to protect against such institutional corruption, even if it was not “quid pro quo corruption.”
Yet APOC argues that the Supreme Court has now disabled the states and the federal government from regulating against this form of institutional corruption.
Respondents would ask, where? No case addresses directly the Framers’ conception of “corruption.” In no case does the Court explain why it is denying sovereigns like Alaska the power to avoid the improper dependence the Framers were so animated about with respect to the British?
Rather than over-reading federal authority to find that by implication, and sub silentio, the Supreme Court has eliminated this critical aspect of state sovereignty — the power to assure that its institutions of representative democracy are not corrupted — respondents ask this court to read the Supreme Court’s opinions for what they say, in light of what was argued:
The Supreme Court has set the rule for individual corruption. It has neither considered nor rejected a different rule for institutional corruption. Never has the original understanding of “corruption” been presented to the Court. Never has the court opined about why such corruption is unregulable. Especially when this conception was so central to our Framers, this Court should not read the Supreme Court to bar institutional corruption as a “substantial state interest” — at least without substantially more explanation from the Supreme Court.