Lessig: Overturning Citizens United Necessary But Not Sufficient

Lawrence Lessig’s open letter to the citizens against Citizens United v. FEC gives ample credit to groups such as MovetoAmend.org, Public Citizen, the Coffee Party, United Republic, and Common Cause for

pushing to get cities and towns to pass resolutions demanding that Congress propose a constitutional amendment to reverse [Citizens United] and restore this democracy to its citizens.

… These citizen movements are incredibly important, and their objective is plainly right.

He reviews the terrible statistics on who pays for election campaigns:

But “the funders” are not “the People”: .26 percent of Americans give more than $200 in a congressional campaign; .05 percent give the max to any congressional candidate; .01 percent —the 1 percent of the 1 percent— give more than $10,000 in an election cycle; and .0000063 percent have given close to 80 percent of the super PAC money spent in this election so far. That’s 196 Americans, a little less than the capacity of a single Boeing 767. On average, my colleague Paul Jorgensen calculates, the per capita contribution of the 1 percent is more than ten times the per capita contribution of the 99 percent.

But, says Lessig,

as [the citizens’] movements grow, it becomes critical that they demand a change that will actually fix the corruption that we now see.

Reversing Citizens United … alone will not restore this democracy. To do that, we must strike at the root of this corruption: how campaigns are funded.

Moreover, he fears,

these extraordinary movements are demanding amendments that wouldn’t even reverse Citizens United. And some of the amendments now being proposed would do so by also reversing a great deal of good in our free speech tradition.

Much of the citizens’ movements’ energy is aimed at corporate personhood. But, says Lessig,

[If] we amended the Constitution to declare “corporations are not persons,” it is not even clear that Citizens United would be decided differently.

What the Supreme Court said in Citizens United was that Congress was trying to regulate political speech, and that such a regulation was allowed only if justified by a compelling state interest. The Court didn’t find a compelling state interest, so the Court struck down the regulation. But it didn’t strike that regulation down because corporations were persons. It struck it down because Congress was regulating political speech.

I believe the Court’s reasoning was mistaken. But to respond to its mistake with a declaration that “corporations are not persons” alone is also a mistake. Citizens United would be reversed by granting Congress the explicit power to limit independent expenditures. And that is the call that these citizen movements need to be making, whatever else they ask for as well.

Summing up, Lessig  says the changes these movements should be pushing are these:

  1. Citizen-funded elections — elections funded by citizens, not corporations (for whether or not a corporation is a person, no one has ever suggested corporations are federal citizens), and elections funded by all citizens, not just a tiny fraction of the 1 percent;
  2. Limits on independent expenditures — whether by individuals or corporations, Congress must have the power to make sure this important political speech doesn’t dominate our democracy, and thereby distract our representatives from a dependence “upon the People alone;”
  3. An express recognition in our constitution that only persons are persons — that when the Declaration of Independence spoke of entities “endowed by their Creator with certain unalienable Rights,” it was speaking of natural persons only.

We’re in for a long struggle:

We, the People, get this chance just about once every hundred years. …

We can’t waste this chance now. It will take years for this movement to succeed. And in some form it will succeed. But when it does, the question our children will ask us is … whether it won anything worth the fight.



About Hamilton Richards

I retired in 2006 as a Senior Lecturer in Computer Sciences at The University of Texas at Austin. These days I volunteer technical support for Citizens' Climate Lobby (Austin chapter), Common Ground for Texans, (CG4Tx.org), Integrity Texas (IntegrityTexas.org), and several friends.
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