On July 24th in the Senate Subcommittee on the Constitution, Civil Rights and Human Rights, chairman Senator Durbin held hearings that also included Lawrence Lessig, the Roy L. Furman professor of Law and Leadership at Harvard Law School and one of the nation’s leading authorities on constitutional law and campaign finance reform. Lessig founded Rootstikers, a network of activists fighting the corrupting influence of money in politics. He is also on the board of The Sunlight Foundation, an organization dedicated to using the Internet and technology to foster a more open and transparent government. His testimony will be shown in blocks with commentary following the blocks.
I commend this committee for holding this hearing which is really a celebration of the extraordinary grassroots movement led by new organizations such as Free Speech for People and Move to Amend and more established grassroots organizations such as People for the American Way and Common Cause. It has developed to the reversal of Citizens United and an end for the system for funding elections that leads most Americans to believe that this government is corrupt.
Yet this hearing can only be the beginning of the serious work that will be required to address the problem in America’s democracy that Citizens United has come to represent. And that problem can be stated quite simply. The people have lost faith in their government. They have lost the faith that their government is responsive to them because they have become convinced that their government is more responsive to those who fund your campaigns. As all of you, Democrats, Republicans and independents alike find yourselves forced into a cycle of perpetual fundraising, you become, or at least most Americans believe you become, responsive to the will of the funders. Yet the funders are not the people.
0.26% of Americans give more than $200.00 in a Congressional campaign. 0.05% give the maximum amount to any Congressional candidate. 0.01%, the 1% of the 1%, give more than $10,000 in an election cycle. And in the current presidential election cycle, 0.000063% — that’s 196 citizens — have funded 80% of the super PAC spending so far.
There are two elections in America today. Not the primary and general election, but the money election and the voting election. And to win in the voting election, you must first compete in the money election. But unlike the voting election, not every citizen can participate equally in the money election. Instead, it is only the very few who can compete at all. It is because of this money election that we have evolved a system in which the elected are dependent upon the tiniest slice of America. Yet that tiny slice is in no way representative of the rest of America.
This, Senators, is corruption. It’s not corruption in the criminal sense. I’m not talking about bribery or quid pro quo influence peddling. It is instead corruption in the sense that our framers would certainly and easily have recognized. They architected a government that in this branch at least, as Federalist 52 put it, would be “dependent upon the people alone;” but you have evolved a government that is dependent upon the people and dependent upon the funders. And the different and conflicting dependence is a corruption of our framer’s design, now made radically worse by the errors of Citizens United. But in responding to those errors, please do not lose site of one critical fact. On January 20th, 2010, the day before Citizens United was decided, our democracy was already broken. Citizens United may have shot the body, but the body was already cold. And any response to Citizens United must also respond to that more fundamental corruption.
This would have been an appropriate point for Lessig to have pointed to specific Court decisions that preceded Citizens United or referenced the root issues behind Citizens United, but unfortunately he did not.
Now how you do that will have as important as what you do. For American’s cynicism about this government, whether fair or not, is too profound to imagine that this Congress alone could craft a response that would earn the confidence of the American people. Instead, this Congress needs to find a process that could discover the right reforms that itself could earn the trust of the American people. That process should not be dominated by politicians or law professors. Indeed, by any of the professional institutions of the American government, it should be dominated, instead, by the people.
I have submitted today to this committee the outline of one such plan in what I call a series of citizen conventions, constituted as a kind of civic jury and convened to advise Congress as to the best means for reform. But whether it is this process or another, your challenge is to find a process which could convince America that a corrupted institution can fix itself. The confidence in the American people in this government, in you, is at an historic low. That’s not because of the number of Democrats sitting in Congress; it’s not because of the number of Republicans. And it won’t change simply by changing the number of Democrats or Republicans sitting in Congress. Instead, confidence is at an historic low because of a dependence all of you, and all of us, have allowed to evolve in this government, one that draws you away from a dependence on the people alone.
I thank you for the beginning this hearing represents, and more importantly, I thank the extraordinary citizens who have united to get you to focus upon this issue. But I urge you now to act in a way has a real chance to restore that confidence of the people in their government.
Lessig did not mention, and, to be fair, perhaps he was not aware that Move to Amend made a concerted effort to have someone testify before this committee in favor of an amendment to the Constitution, something Lessig failed to even mention.
Lessig’s big idea, “a series of citizen conventions,” seems far-fetched at this point and more of a distraction. This “leading authority on constitutional law” certainly must know how citizens overturn bad Supreme Court decisions; we organize and build a movement to amend the constitution. Why didn’t Lessig tell Congress to listen to the grassroots and pass an amendment to the Constitution using the grassroots language as a basis? Where in the Constitution does it state that citizens should form “a series of citizen conventions?” We’ve read the Constitution, and we know what we need to do. Over 280 cities and six states have passed resolutions calling on Congress to amend the Constitution to abolish corporate constitutional rights and many have included language to end the doctrine that money is speech.
If Congress should fail to pass an amendment to the Constitution that overturns Citizens United by abolishing corporate rights and ending the Court created doctrine that money is a form of speech (the two primary legal reasons for corruption that Lessig describes), then Article V of the Constitution already provides for a fall-back position akin to “citizen conventions.” It reads:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Unlike “the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments,” Lessig’s idea has the advantage of being comprised of citizens as opposed to whomever the state legislators would decide to have convene such conventions. However, that’s not what the framers “architected.” The grassroots are following the course laid out in American history as designed by the framers. Move to Amend, Free Speech for People and other groups are building a movement in accordance to the Constitution. It’s baffling that Lessig did not just state the obvious instead of coming up with his own, unique approach that seems more like an unconstitutional distraction than a direct constitutional method to “take back our democracy.” Once again, another law professor disappoints.