Last week, George Will spent his Sunday column in the Washington Post attacking an article I recently wrote in the Cornell Law Review. Of course it is gratifying to have an academic piece be elevated to the public sphere, but unfortunately I don’t actually think Will read my article.
The Cornell article is basically a historical piece, with a contemporary claim. I show how the founding fathers wrestled with the concerns that money would have too much influence in the political sphere. I argue that this "anti-corruption" principle should be honored in contemporary legal cases. In particular, I argue that courts, when considering campaign finance laws, laws regulating lobbying, and other political process cases, should be less eager to strike down laws. Courts should give Congress more deference when laws are passed in order to reduce the corrupting influence of money in politics. I do not argue, as Will insinuates, that we should regulate the content or subject matter of political speech.
There are several reasons I do not think Will read the article beyond the introduction, including this passage:
[Her] standard might license Congress to restrict speech in order to combat: "Unequal access" to the political process; "unfair deployment of wealth"; "undue influence" by this or that group; speech that is "distorting" or lacks "proportionality" or results in "drowned voices" or a "passive" or "dispirited" public or that causes a "loss of political integrity" or creates "moral failings for members of Congress." Such speech might not be constitutionally protected if we properly "refine the meaning of the privilege of political speech."
This just isn’t true. All the words quoted above are found in two places: (1) the table of contents, and (2) a section in which I describe others’ views. In a clearly demarcated 10 page section of the article, I describe–without adopting–how modern Justices have struggled with defining corruption. I explain:
This Part elaborates how the lack of a tie to history has led to chaos in the Court’s political process decisions involving corruption. This Part lays out five different clusters of definitions used in the Supreme Court’s case law on corruption. Each of these clusters understands the problem with corruption–the essence of the threat that it expresses–as different. The clusters can be loosely described as gravitating around these concepts: criminal bribery, inequality, drowned voices, a dispirited public, and a lack of integrity.
In other words, these concepts of corruption (which he falsely ascribed to me) are different each from the other, not only from my own views, or those of the founders. It would be impossible to misunderstand and misquote this if one had read the Article. It appears that he might have simply perused the Table of Contents and Introduction. What I think he might have found, had he read the article, is that it includes a deeply conservative strain that he might be drawn to, even if he rejects the ultimate conclusion.
In my next post, I will respond more directly to Will’s challenge, because we do have a fundamental disagreement about how to think about campaign finance laws, gerrymandering, and other political process laws. It is an important issue for citizens to think about, not just for Supreme Court Justices.