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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.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.

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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