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Lawrence Lessig

Lawrence Lessig

Posted: February 15, 2010 06:37 AM

The Democrats' Response to Citizens United: Not (Even Close to) Good Enough

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The Democratic Leadership in Congress announced its response to the Supreme Court's decision in Citizens United last week. Their plan builds upon "talking points" released by the President shortly after his State of the Union, describing his strategy for "cracking down on special interests" in light of the new threat created by the Court. "For too long," the White House wrote, "hardworking folks doing everything they can do to stay afloat have not been heard over the powerful voices of the special interests and their lobbyists in Washington." The Leadership and the President want to do something about this.

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Some numbers will put this issue in perspective. Candidates for Congress raised $1.2 billion in the 2008 campaign cycle. 10% of that came from contributions of $200 or less. In 2009, the Center for Responsive Politics reports, the total spent on lobbying in Washington climbed to the highest level in American history: $3.47 billion in total were spent wooing Congress, with just over $1 billion by the health and financial services sector alone. 1.3% of that total came from organized labor. And having now been liberated by the Supreme Court to spend corporate funds to promote or oppose any political candidate, many fear the skew in these numbers will only increase. If the top 400 American corporations in 2008 spent just 1% of their profits in political campaigns, that would be $6 billions -- 5x the total amount spent in the 2008 cycle, almost 50x the amount contributed in $200 contributions or less.

So against this background of profound distortion in the political speech market, what have the Democrats proposed? A handful of puny measures, none which will come close to addressing this growing corruption of democracy in America -- a democracy less and less dependent, as the Federalist Papers promised, "upon the People," and more and more dependent upon the campaign funders.

The Democratic Leadership's response is a mix of dubious effectiveness and obvious constitutional doubt. Two of the five proposals require more disclosure by corporations of campaign spending; two purport to ban speech from disfavored groups (foreigners, and government contractors); and one aims to regulate the price of television ads for political speech.

But the Supreme Court has already signaled the uncertain power of Congress to control prices in this (in their view at least, increasingly competitive) speech market. And it is unlikely the Court will look favorably at a broad ban on government contractors speaking, especially when that ban is a response to its own ruling. And finally it is completely unclear how foreigners get regulated under the Court's reasoning in Citizens United: the whole point of that Court's rule was that the First Amendment didn't care about who the target of speech regulation was; whether person or not, the government was not allowed to "abridge the freedom of speech." Why that rule would be different when the entity silenced is French rather than corporate is completely obscure.

The White House response is not much better. It first points hopefully in the direction of Congress to "fix the damage done by Citizens United." But that hope, as I've just suggested, is disappointment. It then vaguely proposes to "limit contributions and bundling by lobbyists." But the "talking points" don't begin to explain why the Court will allow lobbyist speech to be regulated so differently from the speech of the rest of us; nor how banning the act of collecting other people's checks to give to Members of Congress will withstand a Supreme Court increasingly blind to anything but the crudest forms of corruption. Finally, the administration sprinkles more disclosure into the mix, promising tough new rules for lobbyists (as if an even clearer report from the brilliant Center for Responsive Politics would magically make Congress more responsive), and for earmarks (as if a URL were corruption's kryptonite). But transparency has increased radically over the past decade. Has responsibility and trust in government?

Most promising in the White House briefing is the mention of the word "public finance system." But the White House is not proposing public financing for congressional elections. It promises only to reform the presidential public financing system. But that begs the obvious question: Does the administration believe the problem in American government is the presidency? Does Obama think "hardworking folks doing everything they can do to stay afloat have not been heard over the powerful voices of the special interests and their lobbyists in Washington" because there's too much private interest controlling his administration?

Both branches of our government have betrayed astonishingly weak leadership in addressing this threat to representative democracy. The institution of Congress is politically bankrupt. The public's trust is at an historic low. Reform from both the Right and the Left gets stalled in this first branch because the machine selling public policy -- the evolved system of lobbying in America -- has almost perfected its power to protect the status quo. Nothing changes regardless of which side is elected because the value of preserving what is is always enough to block that change.

The only way to change this would be a system of small dollar, citizen funded elections. If Members were no longer dependent upon funding by special interests, they could begin to worry about what their constituents want, and not the wants of their funders. The Fair Elections Now Act, co-sponsored by John Larson (D-CT) and Walter Jones (R-NC) (and 133 other co-sponsors) would be a first step to that change. It is the obvious step that anyone serious about curing the pathology that is Washington would take. Yet it remains no where on the list of priorities for the Democrats -- which may ultimately be the reason reformers will need to push for a constitutional convention.

In 1996, Stride Rite founder Arnold Hiatt tried to inspire then President Bill Clinton to make it a priority for the Democrats of that day. Hiatt was then the number-two largest contributor to Democratic candidates He was invited to a White House dinner with 30 other large funders so that the President could try to persuade them to help retire the Party's 1996 campaign debt. Each guest was asked to give the President his or her advice for the next four years. Hiatt was the last to speak.

He began by evoking Franklin Roosevelt, whom Clinton, Hiatt knew, admired greatly. In 1939, Hiatt reminded the assembled funders, Roosevelt worked hard to convince a reluctant nation to enter a war to save democracy. This, Hiatt insisted, was just what Bill Clinton had to do again -- to convince a reluctant nation to enter a war to save democracy. But this war would require no tanks or battleships. It would instead be the war to end private funding of public elections, to enact full funding for congressional elections, so that Americans would no longer believe as the vast majority even then believed that money buys results in Washington. It would be a war against interests that had corrupted the democratic process in America; a war against the very interest sitting in that room with Clinton.

When Hiatt finished, the room was silent. And the only published account of that evening reports a President impatient with his reformer-funder. Clinton, one guest that evening recounts, "effectively slashed Hiatt to pieces." "The president put this guy down so unbelievably. He didn't even do it graciously. He just took Arnold and phooom, like he would some junior aide who had made a really dumb mistake." Hiatt doesn't remember Clinton being that harsh, but he does recall feeling like a "skunk at a lawn party."

It's not clear that Clinton ever had the aspiration to be a transformational president like FDR. But that was precisely what Obama promised to be. And almost 15 years after Hiatt's challenge, it is finally time for the Democrats to listen. It is time to convince a (not very) reluctant nation to take up the fight to save democracy. Not by these puny measures proposed by staffers who can see no further than last night's tracking poll. But by leaders who understand that history bends to the vision leaders teach.

 
 
 

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