Henry David Thoreau wrote, “There are a thousand hacking at the branches of evil to one who is striking at the root.” (More)

Republic, Lost, Part III – Striking at the Root (Non-Cynical Saturday)

This week Morning Feature explored Lawrence Lessig’s new book Republic, Lost: How Money Corrupts Congress – And a Plan to Stop It. Thursday we considered how Lessig defines corruption as a “gift economy,” and why that definition matters in law. Yesterday we saw how progressive ideas create opportunities for corruption, and how conservatives preserve those problems. Today we look at Lessig’s proposals to fix corruption and restore our republic.

Lawrence Lessig is the Director of the Edmond J. Safra Foundation Center for Ethics at Harvard University, and a Professor of Law at Harvard Law School. He formerly taught at Stanford University and the University of Chicago, after clerking for Judge Richard Posner on the 7th Circuit Court of Appeals and for Justice Antonin Scalia on the U.S. Supreme Court.

Our first problem

Lawrence Lessig does not argue that the systemic corruption of Congress through the gift economy of campaign contributions is our biggest problem. Immediate issues like unemployment and long-term issues like climate change cause or threaten greater harms. Yet Lessig argues that campaign finance reform is our first problem.

By subordinating the needs of the People to the interests of the Funders, the systemic corruption of Congress blocks solutions to other problems. Worse, it undermines our confidence in representative government itself. A New York Times/CBS poll this week showed Americans’ approval of Congress at just 9%, an all-time low. Only 10% of us think we can trust government to do the right thing “always” or even “most of the time.” This cynicism – reasonable though it may be – makes it harder to build and sustain the level and quality of civic activism that produces small-d democratic solutions.

That same cynicism makes it too easy for hucksters to tell us there is no “We the People,” but merely a rabble of “Me an Individuals.” This leaves us easy pickings for well-organized, well-funded special interests who consume luxurious meals while convincing the rest of us to fight each other for the scraps that fall from their table. As Warren Buffett said, “There’s class warfare, all right. But it’s my class, the rich class, that’s making war, and we’re winning.”

To change that, Lessig argues, we must solve our first problem.

What won’t work

Campaign finance reform through Congress has a long and frustrating history. From the Tillman Act of 1907 and the Federal Corrupt Practices Act of 1925 up through the Federal Election Campaign Act of 1971 and the McCain-Feingold Act of 2002, Congress has passed bills that promised to reduce the influence of moneyed interests. Some were more illusory than real. Some were well-intentioned failures. Any that offered real reform ran afoul of the Supreme Court’s interpretation of the First Amendment, in decisions like Buckley v. Valeo (protecting campaign contributions as political speech) and Citizens United v. Federal Elections Commission (protecting corporate-sponsored independent campaign advocacy).

Justice Kennedy’s holding in Citizens United was especially troubling for those who believe Congress should be dependent “on the People alone.”

Favoritism and influence are not … avoidable in representative politics. It is the nature of an elected representative to favor certain policies and, by necessary corollary, to favor the voters and contributors who support those policies. [Emphasis added]

With the Supreme Court expressly approving political favoritism for “contributors,” Lessig sees no hope of the Court upholding any meaningful campaign finance reform statute.

Nor does Lessig believe that transparency alone can solve the problem. Members of Congress must already disclose all contributions over $200. The result, for any given member, is a laundry list. For example, here are the top contributors for the representative of my U.S. House district. What does that tell you about Rep. Nugent’s financial dependencies? Not much, and the full FEC filing is even more confusing. Donor lists are both too much data and too little information.

What could work

Lessig offers three ideas that could work. The first two are electoral strategies: electing candidates who pledge to take only small-dollar donations, or electing a Cincinnatus-like president who promises to stop government until Congress passes campaign reform as a constitutional amendment, then resign as soon as that amendment is sent to the states. Lessig does not see either of these as even remotely likely; he offers only a 2% chance for the first and a 3% chance for the second, and concedes even those numbers are “optimistic.” Given Lord Acton’s wisdom on the temptations of power, I view those chances as “wildly optimistic.”

The third is a constitutional strategy. Lessig proposes this amendment:

No non-citizen shall contribute money, directly or indirectly, to any candidate for Federal office. United States citizens shall be free to contribute no more than the equivalent of $100 to any federal candidate during any election cycle. Notwithstanding the limits construed to be part of the First Amendment, Congress shall have the power to limit, but not ban, independent political expenditures, so long as such limits are content and viewpoint neutral. Congress shall set forth a federal holiday for the purposes of voting for candidates for Federal office.

This would allow Congress to override Citizens United. Moreover, by limiting campaign contributions to $100 per candidate per election cycle, Lessig’s amendment requires candidates to appeal to more donors. He also proposes the Grant and Franklin Plan, a nudge that would encourage more Americans to contribute to candidates of their choice. With more of us supporting candidates, but each of us giving only a comparatively small amount, no individual or interest group could gain influence through campaign contributions alone.

Lessig does not believe Congress would pass a campaign finance reform amendment on their own, as both Congress and well-funded interests gain too much by the system as it stands. Instead, he calls for an Article V Constitutional Convention to address this issue. This would require 34 states to pass bills calling for a convention. Any amendments proposed by the convention would not take effect unless ratified by 38 states.

Risks and limits

Lessig’s proposal is admittedly risky. There is no way to guarantee a constitutional convention would consider only one issue. The Philadelphia Convention was called to consider amendments to the Articles of Confederation, and ended up scrapping the entire document for the Constitution we have now. While Lessig proposes that the convention be comprised of randomly-selected citizens and conducted according to best practices based on research in deliberative democracy, it is not likely that enough states would make that a precondition of their bills to guarantee that format. The risk is real enough that in 1912 – the last time the states got close to calling a constitutional convention – Congress finally leaped to pass the Seventeenth Amendment rather than take their chances with a “runaway convention.” Indeed that might be the best possible outcome of a nationwide movement for a convention on campaign finance reform.

Lessig estimates only a 10% chance of a campaign finance reform amendment, and again he says that is “optimistic.” And campaign finance reform alone would not bridge the empathy gap that leaves members of Congress better able to appreciate and more likely to act on the interests of others like themselves. On the other hand, not needing to spend 25-50% of their time dialing for dollars would give members of Congress and their staffs time to volunteer with organizations that help the needy, and that regular contact might well bridge the empathy gap.

What you can do

Campaign finance reform is not a panacea. It will not solve all of our problems, and it is not even our biggest problem. But I agree that campaign finance reform is a first problem, one whose solving would make other problems more solvable. And equally important, real campaign finance reform – especially through a constitutional amendment – would revive our confidence in representative government. Both the Tea Party and Occupy Wall Street movements showed that Americans are thirsty for meaningful reform. And while the Tea Party star is setting, the same New York Times/CBS Poll that found almost no confidence in government showed 46% of respondents believe the Occupy Wall Street protesters “generally reflect the views of most Americans.”

You can join the growing movement of Americans who want to reclaim representative government:

* Donate to Occupy Wall Street

* Add your signature at Get Money Out

* Join and participate at Rootstrikers

In the words of Alexander Woollcutt:

I’m tired of hearing it said that democracy doesn’t work. Of course it doesn’t work. We are supposed to work it.

Let’s get to work.


Happy Saturday!