Proposal Analysis: Lawrence Lessig

Lawrence Lessig

[Lawrence Lessig is an experienced and thoughtful theorist, one of the most intelligent observers of American jurisprudence in the land and a critically important ally to this movement. Mr. Lessig has been instrumental in bringing this issue to the forefront of American politics and this critique should in no way be interpreted as a dismissal of his important and valuable contributions.]


Lessig Blog, v2

Legal Personhood: n/a
Money as Speech: D
Marketability: F


Section 1.
For the purpose of securing the independence of the legislative and executive branches, Congress shall:
(1) fund federal elections publicly, at no less than the equivalent of the total amount spent in the election cycle when this article is ratified;
(2) limit any non-anonymized contributions to candidates for federal office to the equivalent of $100;
(3) have the power to limit, but not to ban, independent political expenditures within 90 days of an election, including, but not limited to, expenditures in support of, or in opposition to, a candidate for federal office.

Clause 1: Public financing is a partisan issue, can be accomplished in legislation and doesn’t necessarily go far enough in overturning the Supreme Court’s definition of the use of money as an expression of speech. And there’s little evidence to suggest enough support for public financing as legislation, let alone an amendment.

Clause 2: “Anonymized” isn’t a common word and fixed amounts will have to be amended in the future and must never be used.
[Note: “Anonymized” is being used in some computer engineering circles but it’s not in my hard copy of Merriam Websters, ergo, not a common word.]

Clause 3: Do “independent political expenditures” include issue advocacy? Could the “clean coal” commercials be categorized as commerce, not politics? The problem with using terse amendment language for what should be enacted as legislation becomes apparent when one starts drilling down into the details. Campaign finance reform is a partisan battle better left to the legislature. And, most egregiously, failing to fully overturn Buckley v. Valeo creates a conflict with the First Amendment that the Roberts 5 would exploit to bypass this amendment.

Section 2.
The First Amendment shall not be construed to limit legislation enacted pursuant to this article, save to assure content and viewpoint neutrality. Neither shall the First Amendment be construed to limit the equivalent power of state or local legislation enacted to regulate elections of state or local officers. Nor shall the First Amendment be construed to vest in any non-natural person any unalienable constitutional rights.

“Content and viewpoint neutrality” is almost impossible to define, let alone achieve, and would require a layer of bureaucracy nobody would be comfortable with, given Americans’ feeling about the FCC as it is. Codifying a list of how the First Amendment “shall not be construed” is a long way of arriving at the simpler point of defining people as living human beings in the constitution. And “non-natural person” is deductive language that could be construed to preclude living human beings conceived through artificial means, such as IVF, by future generations.

Section 3.
Congress shall by law establish an agency for federal elections which shall enforce the provisions of this article, and whose principal officers shall be non-partisan commissioners who have served at least 10 years as a federal judge. The agency shall have standing to enforce the provisions of this article judicially in the federal courts, and the judicial power shall be construed to extend to actions by the agency against Congress.

It’s hard to see how the response to judicial activism should be to empower career jurists to control the process. The agency is a fine idea but restricting the leadership to the legal profession is a big mistake both structurally and politically. Not only is this the kind of agency or department that can be created in legislation, per Article I, Section 4, it creates a new layer of bureaucracy that overlaps with an existing agency and that conflict would have to be fixed with legislation anyway. Also, the notion of finding ten “non-partisan commissioners” by Congressional appointment in any era seems to be wishful thinking. Ultimately, whether or not people think this is a good idea, it certainly doesn’t need to be debated in the context of a constitutional amendment.

Section 4.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Standard language.

This amendment language seems to create more problems than it would solve and it doesn’t fully overturn Buckley. Any conflict between this language and the First Amendment would be decided in favor of the First by a Court that bends over backwards to find a reason to expand corporate “rights.” Lastly, an amendment with so many parts, including the addition of a whole new federal agency, doesn’t have to be partisan to be picked to pieces by detractors. Any thread left dangling will be yanked on mercilessly by the pro-Citizens United crowd until it unravels the entire cloth. Even if this was the cat’s meow, it would be practically DOA in any environment.



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