Since the FBI's post-9/11 establishment of a preventative stance toward terrorism has increased the need for intelligence, the agency has turned to the increased use of immigration law to recruit additional confidential informants. Using the threat of immigration consequences-particularly deportation-to produce terrorism intelligence presents novel problems for both the intelligence gathering process and the informants. Informants recruited in this manner who also lack established ties to foreign terrorist organizations have an enormous incentive to fabricate information to fulfill their end of the agreement and avoid deportation. Recruiting informants via immigration law also affords less protection than recruiting them by offering monetary rewards or reductions in sentencing. Furthermore, the FBI's recruitment tactics encourage ethnic and religious profiling, alienating Muslim and Middle Eastern communities. Although Congress created the S-6 visa classification specifically to induce cooperation from informants in terrorism investigations, the visa is rarely used due to its stringent eligibility requirements for informants. In order for law enforcement to successfully use the S-6 visa program and to encourage the trust of and cooperation from informants, legislative overhaul is needed. An S-6 visa program that emphasizes pre-existing ties to terrorist organizations, increases the availability of S-6 visas, and lowers the barriers to the visas' use will produce counterterrorism intelligence that is more reliable and actionable and provide greater protection for civil liberties and to informants themselves.
As important as "that" is "how." It is commonplace to say of the United States Congress that it is "corrupt." But it is critical, if we are to reform that corrupt institution, to say how it is corrupt. In what sense? According to what meaning? For what reasons?
For the United States Congress is not corrupt in any traditional (albeit modern) sense of the term. Congress is not filled with criminals. Its members are not seeking bribes or using their official influence for private gain. In this sense, as Dennis Thompson offers, our Congress is likely the least corrupt Congress in the history of that institution.1 These are not bad souls bending the public weal to private ends. The institution is not corrupt because it is filled with a bunch of corrupt individuals.
Instead Congress is corrupt at the level of the institution. We can presume the individuals within the institution are innocent; the economy of influence that they have allowed to evolve is not. Members of Congress, of course, are ultimately responsible for the influence they have allowed to evolve. But there is a distinction between being responsible and being corrupt: the bartender may well be responsible for the alcoholic's accident; that doesn't make her a drunk.
And that is the objective of this short Essay: to see how an institution can be corrupt even if its members are not. I base the argument on the Brennan Center's Jorde Symposium lecture that I had the honor of presenting at Berkeley Law in January of 2013. But lectures are not (or should not be) essays. So while this Essay draws from that lecture, it reaches beyond it. In particular, it is enriched by the generous and careful criticism of election law maven Rick Hasen. I take the opportunity in this Essay to also reply to him more carefully.2
It is my claim that this "corruption"-what I call "dependence corruption"-should be easy for an originalist to see. Indeed, as this Essay will insist, only a non-originalist could reject it. That fact, if correct, makes the views of the originalists on the Supreme Court about the scope of the term "corruption" all the more puzzling, even as it also makes traditional reformers uncomfortable.
In response to Professor Lawrence Lessig's Jorde Lecture, I suggest that corruption is not the proper conceptual vehicle for thinking about the problems that Professor Lessig wants us to think about. I argue that Professor Lessig's real concern is that, for the vast majority of citizens, wealth presents a significant barrier to political participation in the funding of campaigns. Professor Lessig ought to discuss the wealth problem directly. I conclude with three reasons why the corruption temptation ought to be resisted.
U.S. campaign finance regulation is currently in bad shape. The combination of congressional inaction, regulatory ineffectiveness, and constitutional constraint perpetuates a status quo that no one intended and many deplore. Public financing for presidential elections is effectively dead, while Super PACs and other forms of independent spending are on the rise. The 501(c)(4) nonprofit disclosure rules are very leaky, allowing corporations and others to conceal soft money contributions to Super PACs if they so choose. The Supreme Court has effectively precluded comprehensive campaign finance reform by its rulings, which have thrown out independent and personal expenditure bans,1 limited public finance to opt-in schemes,2 loosened the definition of issue ads,3 and allowed corporations to use unlimited amounts of their treasury monies to fund independent campaigns.4 To borrow from Vladimir Lenin, "[W]hat is to be done?"5
Professor Lawrence Lessig, in his Jorde Symposium Essay, What an Originalist Would Understand "Corruption" to Mean, believes the answer is to reframe the campaign finance problem as "dependence corruption" using originalist logic. Is he right? I have my doubts, as I will explain. In an effort to persuade the Court to reconsider its very narrow construction of permissible campaign finance reform, Professor Lessig is trying to thread the eye of a doctrinal needle. He wants to broaden the Buckley v. Valeo material corruption logic
6 but avoid the Austin v. Michigan Chamber of Commerce equality rationale7 that was overturned in Citizens United v. FEC.8 This is a hard task that he makes even harder by embedding "dependence corruption" in an originalist argument.
In this short commentary, I will examine the merits of this approach from a political science perspective and offer an alternative way to look at the same problem. Lessig's original-intent account rests on too many contestable counterfactual assumptions regarding what the Founders would have thought about conditions and political practices that they could not have imagined in their day. Moreover, the argument that the Constitution's intent was only direct popular sovereignty ignores the Electoral College and U.S. Senate elections, which are based on geography. Nonetheless, I must leave it to constitutional scholars to determine whether his story is plausible enough to convince the Court.9 My focus is on whether dependence corruption is the right principle for regulating campaign finance. As I will explain, I prefer to think that the problem is one of democratic distortion, and that the solution under the current constitutional constraints requires continuing efforts to open up donor participation to all voters, fix the broken disclosure system, and preserve the current system of congestion pricing.10
The fair use doctrine seeks to facilitate socially optimal uses of copyrighted material. As a practical matter, however, cumulative creators, such as documentary filmmakers and many contemporary musicians, are often reluctant to rely on the fair use doctrine because of its inherent uncertainty, the potentially harsh remedies for copyright infringement, and the practical inability to obtain effective preclearance rights. Moreover, copyright owners have no obligation under existing law to respond to a cumulative creator's inquiry. Thus, a familiar refrain in professional creative communities is "if in doubt, leave it out."
In this Article we propose a novel mechanism that would afford a limited, cost-effective process for preclearing works, promote fair negotiation over cumulative uses of copyrighted works, and reduce the exposure of cumulative creators to the inherent risks of relying on copyright's de minimis and/or fair use doctrines. Under this mechanism, a cumulative creator has authority to make a formal offer of settlement to use copyrighted material for a project. If the copyright owner does not respond to the offer, the cumulative creator would be permitted to use the work provisionally by paying the settlement amount into escrow. If the copyright owner rejects the proposed license fee and sues for infringement, the copyright owner will bear the cumulative creator's litigation costs if (1) the court determines that the use of the material qualifies as fair use, or (2) the court determines that the fair use doctrine does not excuse the use but the cumulative creator's offer of settlement (the proposed license fee) exceeds the amount of damages that the court determines to be appropriate. In the former case, the escrow amount is returned to the cumulative creator. In the latter case, the copyright owner receives the infringement award from the escrow account, and the remainder returns to the cumulative creator.
Our fair use fee-shifting proposal encourages copyright owners to take settlement offers seriously and negotiate around the fair use doctrine's inherent uncertainties. In so doing, this mechanism protects the reliance costs of cumulative creators, reduces transaction costs, and discourages holdout behavior. Overall, our mechanism should enrich cultural production by increasing the use of copyrighted content in follow-on works while fostering markets for cumulative creativity and providing fair compensation to copyright owners of underlying works.
NEWS & EVENTS
March 05, 2014What an Originalist Would Understand “Corruption” to Mean
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