In “Republic, Lost”, Lawrence Lessig explains how the current (2011) approach to funding US Congressional campaigns distorts US laws and public policy. In Part IV of “Republic, Lost”, Lessig explores three reforms to diminish this distorting effect. Additionally, he proposes four political strategies for enacting campaign finance reform. The following is a summary of these Part IV chapters. It is very difficult to completely represent the authors words here. To capture all the nuances, please read his words in the book.
Chapter 15 discusses reforms that don’t reform: transparency and anonymity.
The Incompleteness of Transparency: Although disclosure is necessary, it is not sufficient.
Federal law requires that all political contributions greater than $200 be recorded and disclosed. The information disclosed includes whom someone worked for, making it possible to aggregate contributions on the basis of zip codes, industry codes, and corporations. On its face this looks like a good thing but this type of list is often not presented in a useable fashion and often doesn’t tell us the whole story.
- A donation given by an executive on his own, outside of a relationship with a lobbyist, means something completely different from
- A donation given by an executive as part of a campaign directed by a lobbyist to secure support for a congressman just as he’s considering what to do about a particular bill which means something completely different from
- A credible threat of a donation by an executive given to an opponent is a clear signal to the candidate but this threat of a donation goes unreported.
The disclosure of contributions in its current form is rife for misuse. Cherry picking certain contributions from the data can tell a very different story from selecting other contributions.
The (Practical) Ineffectiveness of Anonymity
The incompleteness of transparency has led some to suggest its opposite: make all donations anonymous to the members as well as the public. Profs. Bruce Ackerman and Ian Ayres proposed two critical elements needed to achieve this anonymity:
- an anonymous donation booth
- the right to revoke any contribution once made.
In Lessig’s view this could work but it is conceptually too complex so voters will not perceive it to work.
Chapter 16 discusses a promising reform, the Grant and Franklin Project. The simplest way to end the corrupting influence of money on Congress is to make the “funders” “the People”. Three states, Arizona, Maine and Connecticut have experimented with reforms that come very close to this idea. Though the details are different, the basic structure of all three systems of campaign funding is the same: candidates qualify by raising a large number of small contributions; once qualified, the candidates receive funding from the state to run their campaigns. Candidates opting into these voluntary public funding systems spend more time talking to voters than to funders. But there are two principle objections:
- any system that imposed a fixed funding amount per legislative district would be attacked as either arbitrary, too generous, or not generous enough.
- some are troubled with the idea of “their money” being used to fund political speech that they oppose.
The Grant and Franklin Project is Lessig’s alternative
Why Grant? His face appears on the $50 bill and $50 is the amount of the “democracy voucher”.
Why Franklin? His face appears on the $100 and $100 is the largest additional contribution a voter can give to any single candidate.
How does the Grant and Franklin Project work? Assume that every voter in American produces at least fifty dollar in tax revenue to the U.S. Treasury.
- Convert the first $50 that each voter contributes to the federal Treasury into a “democracy voucher”. Each voter is free to allocate his or her democracy voucher as he or she wishes. Maybe $50 to one candidate; $25 to each of two candidates, etc. The only requirement is that the candidate, who receives the voucher, must opt into the system. [The voter gets to choose who they want their money to go to.]
- If the democracy voucher is not allocated, then it does to the political party to which the voter is registered. If the voter is not registered to a party, then it goes to supplement funding for the infrastructure of democracy: voting systems, voter education, and the Grant and Franklin Project.
- Voters are free to supplement the voucher contribution with their own contribution –up to $100 per candidate. [No limit on how much a candidate can raise; only a limit on how much an individual can give to any one candidate.]
- Any candidate for Congress could receive these contributions if they agreed that the only money he or she used to fund their campaign would be democracy vouchers and contributions from individuals of up to $100 per citizen. [It is voluntary.]
Four Political Strategies for enacting US campaign finance reform
Below are summaries of the four political strategies Lessig proposes for enacting US campaign finance reform. None of these strategies by itself will have much success but together they might actually get us somewhere.
1) The Conventional Game: Pass the Far Elections Now Act.
It would have allowed candidates to opt into a system that limited contributions to $100 per citizen, matched, after the candidate qualified, four to one by the government. It is similar to the programs in Connecticut, Maine, and Arizona. Many in Congress and lobbyists have resisted this vigorously. Congressmen because many of them view their elected position as a stepping stone to a lobbying firm; lobbyists because they recognize that if citizens funded elections, and not by the funds they channel to candidates, their power, and therefore their wealth, would collapse.
2) An Unconventional (Primary) Game: Run nonpolitician candidates in primaries, then in the general election.
The purpose is to produce primary challengers who will push an incumbent to do the right thing. There is nothing in the Constitution that forbids a single candidate from running in multiple districts at the same time. The candidate’s clear simple platform is that they will remain in the race so long as the incumbent does not commit publicly to supporting citizen-owned elections. To work, the challenger must be a credible, prominent, well-liked leading citizen from the state who is not a politician.
3) An Unconventional Presidential Game: Use the presidential election cycle to leverage fundamental change by running reform presidential candidates.
This reform candidate makes a single two-part pledge. If elected he or she will
- hold Congress hostage until it passes fundamental reform, and
- he or she will resign from office once that reform is enacted.
4) The Conventional Game: calling for an Article 5 Convention
Article V states: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states [thirty-eight states], shall call a convention for proposing amendments, which, in either case, shall be valid to all Intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
Sometimes an institution becomes too sick to fix itself. Not that the institution is necessarily blind to its own sickness but that it doesn’t have the capacity, or will, to do anything about it. In the past, the call for a constitutional convention has had an important reformatory effect, most famously in the context of the Seventeenth Amendment ( making the Senate elected), when the states came with one vote of calling for a convention, and Congress quickly proposed the amendment that the convention would have proposed. A constitutional convention is the most viable grass-roots strategy for forcing reform onto the system.
Certain conditions could and should be set in advance, for example here are some of the conditions set in the Constitutional Convention Implementation Act of 1985 authored by Orin Hatch:
- specify a procedure by which the convention would be constituted: entitles each state to two at-large delegates and one delegate from each congressional district.
- no current or past senator or representative can be elected as a convention delegate.
- President pro-tempore of the Senate and the Speaker of the House shall convene the convention.
- prohibits the convention from proposing any amendment with a subject matter different from that stated in the concurrent resolution [limiting the convention only to a balanced budget amendment].
Because of the high bar that is set for the passage of an amendment, neither side needs to fear that the other is going to run away with our Constitution. But to allay this populist fear, Lessig suggests simultaneously convening shadow conventions in each state. The convention begins by providing participants with the information they need to speak sensibly about the matter they are addressing. The aim would be to figure out what people would think if they were well informed about the issue at hand.