At Constitution Daily, Seth Barrett Tillman: Why Professor Lessig's "Dependence Corruption" is Not a Founding-Era Concept. An excerpt:
[B]oth Lessig and Teachout agree that they have identified a stable, unified meaning as to how the Framers (and the public during the Framers’ era) understood corruption in relation to the Constitution of 1787-1788: the Constitution of the Framers and Ratifiers.
I contest their position: No such unified concept existed in 1787-1788. (See Tillman, “Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle”(2012).)
And if it did exist, Lessig and Teachout have failed to excavate its details from our long lost past; they have failed to delineate the concept’s contours; and they have failed to explain its precise implications for election law and, more importantly, for all the other areas of law which any such newly resurrected constitutional concept would necessarily impinge on.
In a recent post on McCutcheon, Professor Lessig wrote:
I’ll note that I’ve not yet seen an argument refuting the conclusion that I and Teachout and Brugman and others have advanced.
Well, it sure looks like Professor Tillman has one…
Related: When Josh Blackman and I were posting on this subject last week (see here and here), I neglected to note that Rick Hasen (Election Law Blog) reached some similar conclusions about the "originalistiness" of Lessig's argument from a somewhat different perspective: see here, here, and here. (With rebuttal from David Gans at CAC here.)
Posted at 6:29 AM