rssLessig On Citizens United
Friday, September 10, 2010 at 5:24 pm
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Lawrence Lessig has published a long and thoughtful essay entitled, “Democracy After Citizens United” in the Boston Review. Lessig, a professor of law at Harvard University, is more commonly known for his legal and political work in the fields of copyright and trademark law, but lately has made reforming Congress a pet cause.I’m not going to attempt summarizing all the nuances of the piece, but instead will just highlight a few key points he raises about the landmark Supreme Court case and its effects.
The first important concept Lessig highlights is what he labels “institutional corruption” — not the kind that refers to individuals knowingly violating ethical rules, but rather “an influence, financial or otherwise, within an economy of influence, that weakens the effectiveness of an institution, especially by weakening public trust in that institution.” A classic example of such a system, he argues, is the U.S. Congress:
Yet arguably—or maybe obviously—those contributions are (1) an influence (2) within an economy of influence that has (3) (quite likely) weakened the ability of Congress to do its work, by (4) (certainly) weakening public trust in Congress. The vast majority of Americans believe money buys results in Congress; less than a quarter of Americans believe the institution worthy of their trust. When “free-market” Republicans vote to support milk subsidies or sugar tariffs, or when “pro-consumer” Democrats vote to exempt used-car dealers from consumer financial-protection legislation, it is easy to understand the mistrust and hard to believe that the influence of money hasn’t weakened the ability of members to serve the principles, or even the interests, they were elected to represent.
The Supreme Court, however, failed to acknowledge the importance or perhaps the relevance of such a concept, and therefore saw no reason to restrict the First Amendment rights of corporate speech. It choose to focus only on the narrowest sense of the term corruption: the quid pro quo. As long as an expenditure is independent, the court ruled, it could not be said to meet those requirements.
But it didn’t have to do that, Lessig argues, nor should it have. The Court could have relied on a more expansive definition of the term, as was proffered in Austin v. Michigan Chamber of Commerce, when the court recognized that corruption could come from the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation with the public’s support for the corporation’s political ideas.”
The maddening part about the Court’s new decision to narrow the terms, however, was that instead of seeking to prove or provide evidence that such forms of political speech would not encourage political corruption or the appearance of such in the eyes of the public, Justice Anthony Kennedy’s opinion simply stated that it would not:
The appearance of influence or access . . . ?will not cause the electorate to lose faith in our democracy.
But there are facts to be brought upon such a debate, notes Lessig. Public trust in Congress has reached historic lows. In many races a majority of campaign contributions come from outside a lawmaker’s state or district and therefore do not represent a legislator’s constituents. These donors hold an outsize influence on the positions those legislators later adopt:
In short, bribery is regulable because it manifests personal corruption, the deviation from a public to a venal interest. Yet Kennedy has offered no argument as to why acts that constitute institutional corruption shouldn’t likewise be regulable, as manifesting, improperly, a dependency upon funders rather than upon voters.
The charge against the current system of funding congressional campaigns thus comes to this: not only has it eroded trust in Congress (the Pew Research Center’s latest numbers indicate trust in government and faith in Congress both at historic lows), it has also engendered a focus on interests distinct from the interests of the voters. A people should have the power to avoid just this sort of distraction, a.k.a., corruption. A vibrant free-speech tradition need not disable that power.
The essay is worth reading in full.
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Pingback posted September 10, 2010 @ 6:34 pm
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Pingback posted September 11, 2010 @ 12:02 pm
[...] Lessig On Citizens United “Lawrence Lessig has published a long and thoughtful essay entitled, “Democracy After Citizens United” in the Boston Review. Lessig, a professor of law at Harvard University, is more commonly known for his legal and political work in the fields of copyright and trademark law, but lately has made reforming Congress a pet cause” [...]
Pingback posted September 11, 2010 @ 9:11 pm
[...] the article here: Lessig On Citizens United « The Washington Independent Tags: a-more-expansive, court, independent, lessig, more-expansive, nor-should, should-it-have, [...]
Comment posted September 11, 2010 @ 8:55 pm
GEORGE BUSH JR & KARL ROVE HAVE FOREVER CORRUPTED OUR FUTURE AMERICAN ELECTIONS WITH THEIR TARP BAILOUT $$ & THEIR COERCION OF OUR U.S.SUPREME COURT… little voting & taxpaying Americans !!!
LAWYERS FOR POOR AMERICANS CONTINUES TO FIRMLY BELIEVE THAT OUR 5 CONSERVATIVE U.S. SUPREME COURT JUSTICES WHO VOTED THIS PAST JANUARY OF 2010 4 THIS UNLIMITED CORPORATE POLITICAL FUNDING CORRUPTION HORROR OF AMERICAN LAW WRITTEN ABOUT BELOW, WERE COERCED BY FORMER PRESIDENT BUSH JR ~ KARL ROVE & SEVERAL OTHERS FOR THEIR OWN VERY SEPERATE TRADE~OFF SELFISH & REASON.
GEORGE BUSH JR~KARL ROVE $750 BILLION TARP BAILOUT HAS CORRUPTED OUR AMERICAN ELECTIONS !
1) THE ONLY WAY CONSERVATIVES HAVE OF STOPPING FUTURE U.S. ABORTIONS & SAME SEX MARRIAGE ARE TO HAVE ENDLESS CORPORATE POLITICAL $$ TO USE IN THEIR SWIFT BOAT STYLE MEDIA HITS THIS AND FUTURE ELECTION CYCLES ! THIS BIG CORPORATE $$ HAS ALREADY CORRUPTED OUR little peoples elections here in America BECAUSE WE ALL KNOW THAT IF YOU TELL A LIE LONG ENOUGH & HARD ENOUGH PEOPLE TEND TO ACCEPT IT AS TRUTH !!
2) KARL ROVE COMES OUT OF THE WHITE~HOUSE AFTER LEADING THIS TYPE OF MUTINY AGAINST OUR U.S. AMERICAN VOTERS FROM BEHIND THE CURTAIN (WITH THIS U.S. SUPREME COURT COERCION) TO BECOME THE LEAD VOICE OF THESE BIASED AND DISHONEST SO CALLED FREEDOM MEDIA BUYS WITH HIS NEWLY FORMED CONSERVATIVE MEDIA GROUP THAT HAS BEEN RECENTLY FORMED TO ELECT CONSERVATIVES AROUND AMERICA.
THESE KARL ROVE'S POLITICAL HIT AD GROUPS DO NOT EVEN HAVE TO DISCLOSE PUBLICLY WHERE THEIR BIG $$ CONTRIBUTIONS ARE COMING FROM !
LAWYERS FOR POOR AMERICANS HAS THE FIRM BELIEF THAT TENS OF MILLION$ OF OUR OWN little American TAXPAYER$ $750 BILLION TARP BAILOUT MONIES ARE BEING CONTRIBUTED BY CERTAIN CORPORATIONS FROM WITHIN AND OUTSIDE AMERICA THAT GOT U.S.TARP BAILOUT FUND$.
MANY AMERICANS ARE STILL NOT AWARE THAT HUNDREDS OF BILLION$ OF OUR TARP BAILOUT MONIES WERE ALSO SENT OUT OF AMERICA TO FOREIGN BANKS AND OTHER VARIOUS LOCATIONS AROUND THE WORLD.
***SINCE REGULATIONS ON THESE BUSH JR ~ KARL ROVE TARP BILLIONS WERE VERY LAX AT THAT TIME, OUR AMERICAN TAX PAYERS ARE ESTIMATED TO HAVE LOST AS MUCH AS $200 BILLION of the 700 BILLION TARP TAXPAYERS $$ TO INTERNATIONAL & NATIONAL FRAUD ~ PLANNED THEFT !!!
SOME AMERICAN VOTERS MIGHT BE ALREADY AWARE THAT THE PEOPLES U.S. CONGRESS (Senate) WAS UNABLE TO AGREE LAST MONTH ON THEIR PROPOSED CONGRESSIONAL LEGISLATION PREVENTING ANY OF THESE GEORGE BUSH JR KARL ROVE TARP BAILOUT $ FROM ENTERING THIS NOVEMBERS ELECTION CYCLE OR FUTURE ELECTION CYCLES !
THIS BUSH JR ~ KARL ROVE TARP PONZI SCHEME ONE DAY WILL BE KNOWN AS THE LARGEST AMERICAN TAXPAYER THEFT IN U.S.HISTORY !!!
~ TARP = TAKE ALL RESOURCES POLITELY ~
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Pingback posted September 12, 2010 @ 6:48 am
[...] Lessig On Citizens United « The Washington Independent [...]
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Pingback posted September 13, 2010 @ 9:10 pm
[...] response to Lawrence Lessig’s article on Citizens United, the Center for Competitive Politics’s Allison Hayward has published a piece in the Boston [...]
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Pingback posted September 14, 2010 @ 8:45 am
[...] Lessig On Citizens United « The Washington Independent [...]
Trackback posted September 22, 2010 @ 10:16 pm
Jacob Sullum Debunks the Demonization of Citizens United…
trackback >>The Moral Liberal: Defending the Judeo-Christian ethic, limited government, and the American constitution>>…
Pingback posted September 25, 2010 @ 4:21 am
[...] Lessig On Citizens United « The Washington Independent [...]
Comment posted January 11, 2011 @ 7:48 am
noone’s taken anything of theirs, so what are they refering to?
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