1. Thanks for your work on this.

    But let’s be clear about the position I am advocating: It is my view that we can change the way elections are funded without a constitutional amendment. That claim is certainly true — no one (credible) has made the case that the small dollar funded election systems that I have described are unconstitutional. So again: it won’t take an amendment to bring about this critical change.

    And more importantly, I have argued that this is the critical change that has to happen first. Banishing corporate personhood may be a great idea, but it won’t change the way elections are funded. And declaring “money is not speech” may sound like a great idea, but it won’t change the ways elections are funded. The only way to change the way elections are funded is to CHANGE THE WAY ELECTIONS ARE FUNDED. That’s the work I’m trying to do.

    But of course, as I describe in the book that accompanied the TED talk, it may well be that an amendment to overturn Citizens United is also necessary. That depends upon a bunch of contingencies, but it is certainly possible.

    But why would a reform movement start with the harder challenge — amending the constitution — especially when achieving that challenge (overturning Citizens United) won’t itself fix the problem. For again, even if Citizens United had gone the other way, we still would have a democracy where .05% of citizens were the relevant funders of campaigns.

    I’m not an opponent of movements to amend — especially movements, like Wolf-PAC’s, which have a strategy that could actually win. But I am an opponent of movements that pretend as if an amendment is all we need here. We need more than an amendment. We need a statute that changes the way elections are funded. And more importantly, as reformers, we need to learn how to walk and chew gum at the same time.

    • pewestlake pewestlake

      Professor Lessig,

      I’m sure Victor will reply to your comment shortly but I happen to have the time today and wanted to pick up on a couple of your points. First, thank you for stopping by and clarifying your position. And thank you for your ongoing efforts to return our democratic process to the people.

      On your first point, you’re correct, of course, that no credible observer has suggested a small-dollar scheme is unconstitutional. However, the sweeping judgements in Citizens United and American Tradition Partnership are pretty strong indicators of things to come. The pending decision in the McCutcheon case is likely to be even more sweeping than Citizens United, striking down even the remote possibility of regulating campaign contributions of any kind for any purpose.

      The Roberts 5 are not operating in good faith and just have different opinions than almost everyone else in the country. They know exactly what they’re doing, don’t care what it looks like when they do it, and know they can get away with it. They have effectively declared war on American democracy and nothing thrills them more than striking down the will of the people. Surely, you’ve read their writings, which now come across like polemics more than decisions. This cannot bode well for meaningful legislation.

      I completely understand your point about a constitutional amendment not being a “fix” for campaign finance. Nor should it be (a point many in our movement have yet to grasp). Where we disagree is which is the cart and which is the horse. If the Congress were to find the magic within itself to actually enact a meaningful version of campaign finance reform (CFR), even within the pretzeled confines of Citizens United, it would certainly start laying the paving stones for a more permanent constitutional remedy.

      We all know that there’s both a legal (structural) component and a political (marketing) component to any legislation or amendment. The problem with grass roots efforts behind legislation has always been the sausage-making itself. Even if supporters of meaningful CFR were successful in rounding up the votes in Congress, the opposition has the legislative rules on its side. We’ve already seen poison pill amendments destroy legislation or water it down to meaningless countless times. Introducing a bill that can have a dramatic impact on each legislator’s ability to raise campaign funds turns the Congress into a virtual pharmacy.

      The power of the amendment movement is in the simplicity of amendment language itself. People get it. Even the long-winded proposals out there are easily digestible. With legislation, people have rightly become cynical of the goodies, exemptions and pork being larded onto every law as it’s being written. But amendments are immune to such tampering. Even though we still rely on a supermajority of the Congress to pass the amendment and send it on to the states, amendment supporters are harder to divide and conquer. We know what’s supposed to be in the proposal and we can see if it’s there or not without having to wade through tomes of legalese or hope that one of the last remaining investigative outlets in America has the bandwidth to ferret out any corruption.

      That’s why I start with the amendment. I’m not accustomed to talking to super intellectual people who are capable of deeply nuanced discussions every day. My focus is on convincing the soccer mom who has about 12 seconds to digest a political point before chasing after her kids again. I can reach her with an amendment. I can’t even penetrate the cynicism with legislation.

      Nobody believes Congress is capable of doing anything that isn’t corrupt and totally self-serving anymore. But they do believe in themselves! An amendment movement is about the people making law, not the Congress. It’s exciting and real and community-oriented. It’s exactly the opposite of the kind of sausage-making that everyone is tired of hearing about. And that isn’t to say everyone wants a hand in creating the amendment, just that most people find a proposal they can read start to finish without their eyes glazing over refreshing and, dare I say, exciting!

      That’s also why the concept of “Rootstrikers” has taken purchase in people’s minds. People want to cut through the BS and get to the root of the problem. But I think a lot of those people would agree that legislation is yet more hacking at the branches. An amendment is, in fact, striking at the root. Because the root isn’t actually Congress. The root is K Street and the money that backs K Street. Under current case law, severing that relationship is fraught with constitutional pitfalls, not to mention the financial retaliation that follows for any politician with the guts to oppose the status quo. But an amendment flies above the Supreme Court, eliminates that possibility and immunizes those legislators from the threat of financial (ergo, political) ruin by dint of its permanence.

      Yes, we’ll still have almost the exact same system if the right language was adopted (though some provisions of law that are still on the books would automatically spring back to life). But that’s the point of a good amendment, isn’t it? It’s not legislation, it’s the foundation for legislation. I have often described the constitution as a road and legislation as the lines on the road. When the Supreme Court overturns legislation, it doesn’t erase the lines on the road, it unpaves the road. They’ve now unpaved enough campaign finance roadway to make it impossible to paint new lines on anything but dirt, which may work fine in baseball, but not so much in law. That’s why I see the amendment as a necessary first step to meaningful CFR.

      Let’s use the FAIR Elections Act in New York state as a guide in the coming months (possibly years). If, as I assume, the law (if enacted) is challenged and overturned in federal court, I believe our point will be vindicated. If, however, the law goes unchallenged or is upheld in federal court, I’ll change my tune on which is cart and which is horse.

      Now, about that WolfPAC thing! 😉

      Lastly, you have proposed your own language in the past but you seem to endorse WolfPAC’s proposal here. Should I take down the analysis I have for the language you proposed some time ago or do you still stand by that proposal as a second (third, whatever) step in your overall plan? Also, if you take exception to being labeled as an “amendment critic,” I’ll happily see to it that we change the title of this post! (Do note that Move to Amend does not see an amendment as the solution but only as the first step, a nuance that isn’t prominent in their literature.)

      Thanks again for engaging in the debate and for all you do to educate people on this issue.


    • VictorMTA VictorMTA

      Professor, no one is arguing that “an amendment is all we need here.” Just the opposite in fact. We do, as I pointed out, need CFR. What will not be effective, as Congressman Kilmer points out, is CFR without addressing Citizens United first.

      This is not a matter of walking and chewing gum at the same time; it’s a matter of unwrapping the gum (overturning Citizens United) before chewing it if the gum is going to be a satisfying experience.

      I should add that, even though MTA- NY does not feel that the Fair Elections Act is going to be all that effective or constitutional, we still asked our supporters to sign a petition to support it.

      We want strong, effective CFR, and that cannot happen until CU is overturned. In the meanwhile, weak CFR is better than nothing, but not much.

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