Tag Archives: Citizens United

Lessig’s Shortcomings

The recent rise of “Tea Party” and “Occupy” Movements clearly reveal an unhappiness with the American electoral system.  Much of this unhappiness has boiled into anger and aggression.  Both sides openly talk about revolting against a political system so inherently corrupt that it is incapable of solving the massive economic and social problems the United States faces today.  Most Americans view both Congress and the presidency as inept, childish, and unreliable.  Americans keep voting for “change” – only one president since 1976 has won office without advertising himself as an outsider sent to Washington on the promise to clean up the mess – but keep getting the same results.  Most Americans understand that “change” is difficult to achieve when elections are won by money 90% of the time.

Tea Party activists and Occupiers both say that corrupt “special interests” spending money to win elections is the source of most American political crises.  Lawyers, Representatives, Senators, and even former leaders of presidential Administrations have proposed many different changes to our campaign finance laws aimed at eliminating the ability of the rich to win elections by merely outspending everyone else.  Harvard Law School Professor Lawrence Lessig proposed some of the clearest, simplest, and possibly most effective of these ideas in his book Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It (New York, Twelve: 2011).  Lessig’s ideas deserve far more attention than they have garnered in the mainstream press.  However, his plans fall short in the crucial area of “independent expenditures” – the ability of wealthy groups to build private media campaigns that often sway today’s American elections.

Republic, Lost gives a wonderful analysis of money’s role in American elections, how its dominant role in elections has hurt American economic and education systems, and how money “defeats” liberal and conservative attempts at changing the system.  The book is highly useful for any reader just beginning to learn about American political problems.  Lessig moves into a detailed presentation of his plan for changing the system later in the book.  His plan has four major steps:

            First, we convert the first fifty dollars that each of us contributes to the federal Treasury into a voucher.  Call it a “democracy voucher.”  Each voter is free to allocate his or her democracy voucher as he or she wishes.  Maybe fifty dollars to a single candidate.  Maybe twenty-five dollars to two candidates. . . .  The only requirement is that the candidate receiving the voucher must opt into the system.

Second, if the democracy voucher is not allocated, then it goes to the political party to which the voter is registered.  If the voter is not registered to party, then it goes to supplement funding for the infrastructure of democracy: voting systems, voter education, and the Grant and Franklin Project.

Third, voters are free under this system to supplement the voucher contribution with their own contribution—up to $100 per candidate.  One hundred dollars is nothing . . . to about 2 percent of the American public.  It is a great deal of money to everyone else.

Fourth, and finally, any viable candidate for Congress could receive these contributions if he or she agreed to one important condition: that the only money that candidate accepted to fund his or her campaign would be democracy vouchers and contributions from individuals up to $100 per citizen.  That means no PAC money and no direct contributions form political parties.  (Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It,New York, Twelve: 2011, page 267)

This seems to be a detailed plan for change, yet it is still short and simple enough for the average American to understand and easily use.  However, its major flaw is also obvious: the role of choice.  Remember: “The only requirement is that the candidate receiving the voucher must opt into the system” and “any viable candidate for Congress could receive these contributions if he or she agreed to one important condition” – that they only spend the voucher money plus the $100 contributions.  We simply cannot rely on politicians to choose to take small amounts of money rather than millions of dollars from single contributors.  Why would someone like Barak Obama choose to take such tiny contributions and reject the $700 billion he raised, and won with, in 2008?  The answer is simple: most politicians will reject public financing, as Obama did in 2008.  A better solution would force all candidates in any federal election to accept public financing as the only source of their campaign cash.

Another flaw in Lessig’s plan is equally important, though less obvious: the candidates’ campaigns are not the only groups spending money on media advertising.  Other groups, sometimes totally outside of any candidate’s campaign and not in contact with that campaign’s leadership, also spend huge amounts of money on political ads.  Some of these “independent expenditures” raise and spend tens of millions of dollars on attack ads aimed at jack-hammering worry and hatred into voters’ minds.  Such groups were limited to spending only $57,500 – until the Supreme Court killed those limits with the 2010 Citizens United v. Federal Election Commission decision.  With the limits erased, “independent expenditure” groups now spend unlimited amounts of money on any political message they want.  Lessig understands this to be a gigantic problem – and he even admits that his “democracy voucher” plan is helpless to stop such powerful and motivated groups.

The candidates would smile and tell us all that their campaigns were funded by clean contributions only.  And that would be true.  But all the dirty work in the campaigns would be done by “Americans for a United Future” or “Veterans Against Feline Abuse” or “United We Stand Forever” or whatever.  On the margin, these independent campaigns would determine who won and who lost.  And as the margin is the game, this world enabled by Citizens Untied could well defeat all of the independence that [the democracy voucher plan] was meant to buy.  (Lessig, Republic, Lost, pages 271-272)

Even if Lessig’s “democracy voucher” plan became law, candidates could accept public financing for their campaign with full knowledge that their friends would rush to build “independent expenditure” groups to wage the advertising war with unlimited money.  That is where the so-called SuperPACs would be even more powerful and unstoppable than they are today.  Candidates could claim innocence even while conspiring to bury American democracy under increasing amounts of dirty money.

Again, the best solution would force all candidates in any federal election to accept public financing as the only source of their campaign cash.  Any realistic solution must also make “independent expenditures” illegal to fully kill their power to determine election winners.  We would probably need a Constitutional Amendment to make it happen, but that is the only way to be reasonably certain that money can no longer dominate our politics.  My recent book, The Machinery of Politics, proposes such an Amendment.  The entire book can be read and downloaded FOR FRE at www.machineryofpolitics.com.  Campaigns that are only publicly funded would allow We The People to truly determine election-day winners – and make this country into the democracy it advertises itself to be!

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