In the wake of the Supreme Court’s decision in Citizens United to expand the ability of corporations* to pay for election-related communications, prominent law professor Lawrence Lessig is calling for a constitutional amendment to protect elections from the influence of money. The text of the proposed amendment isn’t done yet, but the goal is to protect Congress from the influence of money.
Lessig’s argument is simple: Congress is fundamentally (though, thanks to the Supreme Court, legally) corrupt, and most people think it is corrupt, which makes it hard for elected majorities to effect change and also undermines people’s faith in their government. Commenting on Citizens United, he said, “The surprise, and in my view, real cause for concern, however, was how little weight the Court gave to the central purpose of any fair election law: the purpose to protect the institutional integrity of the democratic process. That value seemed invisible to this Court, as if we didn’t now live in a democracy in which the vast majority has lost faith in their government.” Since the Court’s preferred stick for blocking campaign finance reform is the First Amendment, the only thing that can stop them is a new amendment.
I think campaign finance reform is a hugely important issue, but in the past I have been skeptical that it could be solved. I have also been skeptical of constitutional amendments in this area, because my belief is that each major party will evaluate any proposed amendment for its impact on its own political power, and one or the other will be able to muster thirteen states to block the amendment. In 1971, the 26th Amendment lowered the voting age from twenty-one to eighteen, but I find it hard to imagine that such an amendment could be ratified today; since the young vote are, for example, disproportionately in favor of same-sex marriage, I can’t see the Republicans going along. Partial proof is in the plight of the District of Columbia, which clearly should have a representative in Congress (the license plates in DC say “taxation without representation”), with more people than Wyoming. But since everyone knows that that representative would be a Democrat, there is no chance of such an amendment passing today. (Proposals that a representative for DC be balanced by an extra representative for Utah just prove my point.)
Lessig is trying to make his proposed amendment a bipartisan initiative, and that may turn out to be a successful strategy. Perhaps disillusioned liberals and angry conservatives could make common cause–although bear in mind that much of the massive campaign spending that exploits current campaign finance loopholes comes precisely from these two extremes. But it’s a huge problem, and Lessig is probably right that this is the only real solution. So I’m strongly in favor; I just wouldn’t put too much money on it.
* And unions, people always point out. But the unions themselves were by and large against the Supreme Court’s decision in Citizens United, because they know the corporations have much, much more firepower.
By James Kwak