 "Photo: Matt Hutchins")
Last month, the Supreme Court authored 183 pages of opinions in Citizens United v. Federal Election Commission, fomenting the ire of Congress, President Barack Obama ’91, and the legal community. Expressing their own disappointment with the decision, for two profoundly different reasons, were Professor Larry Lessig, director of the Safra Foundation for Ethics, and attorney Jeff Clements, who authored an amicus brief in support of the lower court’s decision. The two offered their independent critiques at a panel last week hosted by Harvard’s chapter of the American Constitution Society.
In Citizens United, the Court held 5–4 that restrictions on corporation’s independent expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC. Justice Anthony Kennedy ’61, writing for the majority, explained that to rule otherwise would chill protected political speech.
However, critics like Jeff Clements were not persuaded. “Kennedy dances around the real threshold issue of ‘What is a corporation?’ And he is pretending that there is no distinction between corporations and humans, but that is very grave.” said Clements. “That is what makes this case so profoundly important for this country.”
Imagining the possible implications of the decision, he explained that in the 2008 Fortune 100 companies had profits of $605 billion and political candidates spent three billion on their campaigns. But in the next cycle, if the top 100 spend even 1% of their profit through “independent expenditures” on political campaigns, they will have more than doubled the federally-reported disbursements of all American political parties. “These mathematics are huge especially when we think that money is already paralyzing public interest in Washington,” said Clements. “Corporate money has a huge impact on what comes out of Congress or what doesn’t as it is.”
“The implications are even more serious,” Clements continued. “They go to the heart of our democracy. The question is who gets to participate in self-government in a democracy? Who is a citizen?” . To fight the Court’s decision, Clements urged students to petition for 28th Amendment introduced by Congresswoman Donna Edwards. The amendment would overturn Citizens United.
For Lessig, money’s impact on Congress is the concern – rather than corporations being vested the right to speech. In fact Lessig stated, “It would be fantastic if we could ensure First Amendment Speech to the highest degree. I look forward to the day that computers can secure this right – a Blade Runner type moment.” Instead Lessig expressed concern that “people think money buys elections.”
In surveys conducted in California and North Carolina, Lessig reported a ratio of five to one people believed that money buys votes in Congress. Unlike the courts and the presidency, Congress has lost its integrity among a large majority of people. “It is this institution that is most bankrupt,” said Lessig.
In other words, Lessig is concerned not with corporate speech but with Congress’ ability to safeguard its own integrity. “Congress’ objective was to create a law so that elections were not dependent on corporations but only upon one thing – the people,” he said. Congress should be able regulate corporate behavior that interferes with the puplic trust in Congress, “Outside of this window corporations are allowed to do whatever they want,” said Lessig.
He mentioned Caperton v. A. T. Massey Coal Co. as precedent. In Caperton, the Supreme Court announced that the Due Process Clause required judges to recuse themselves from cases where independent expenditures have been given to campaigns.
“The court found there was a constitutional requirement that the justice had to shut up because of the appearance of impropriety from the independent funding.” So shouldn’t Congress, Lessig asked, be able to squash corporate speech to maintain its own integrity?
The solution, according to Lessig, is not to return to the world that we occupied before Citizens United was decided. Instead he wants to “deal with all of the other corruption that existed.” Lessig’s plan is twofold. First, instead of overturning Citizens United, Lessig endorses the Fair Elections Now Act (S. 752 and H.R. 1826) that was introduced in the Senate by Sens. Dick Durbin (D-Ill.) and Arlen Specter (D-Pa.). Although the title is a proverbial red flag to the bull that is Justice Antonin Scalia ’60, said Lessig, “the bill would allow federal candidates to choose to run for office without relying on large contributions.”
Lessig also believes a constitutional amendment would be helpful, but instead of presenting one platform, he calls for a form of amendment process that exists in Article V, allowing a convention to be called to discuss the amendment. A convention would allow all proposals for amendments currently stirring around Washington to remedy Citizens United to be melded, creating a hybrid amendment worthy of ratification. Many people are afraid of such a convention, said Lessig. But thirty-eight states have to ratify it and twelve states could veto and stop the process. Moreover, “an amendment process shouldn’t stop us from a real opportunity for freedom,” said Lessig.
Lessig ultimately posed the question that political scientists have repeatedly discounted, “Does money matter?”
“How,” he wondered, in response to his own question, “could anyone ask that question? Why is such an extraordinary amount of money being spent if it doesn’t matter? No doubt,” he concluded, “the relationship creates a perverse dependence.”
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Jacksonville, FL