Lawrence Lessig: The Democrats' Response to Citizens United: Not (Even Close to) Good Enough

Lawrence Lessig: The Democrats' Response to Citizens United: Not (Even Close to) Good Enough
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The Leadership and the President want to do something about this.

Some numbers will put this issue in perspective. Candidates for Congress raised $1.2 billion in the 2008 campaign cycle. 10% of that came from contributions of $200 or less. In 2009, the Center for Responsive Politics reports, the total spent on lobbying in Washington climbed to the highest level in American history: $3.47 billion in total were spent wooing Congress, with just over $1 billion by the health and financial services sector alone. 1.3% of that total came from organized labor. And having now been liberated by the Supreme Court to spend corporate funds to promote or oppose any political candidate, many fear the skew in these numbers will only increase. If the top 400 American corporations in 2008 spent just 1% of their profits in political campaigns, that would be $6 billions -- 5x the total amount spent in the 2008 cycle, almost 50x the amount contributed in $200 contributions or less.

So against this background of profound distortion in the political speech market, what have the Democrats proposed? A handful of puny measures, none which will come close to addressing this growing corruption of democracy in America -- a democracy less and less dependent, as the Federalist Papers promised, "upon the People," and more and more dependent upon the campaign funders.

The Democratic Leadership's response is a mix of dubious effectiveness and obvious constitutional doubt. Two of the five proposals require more disclosure by corporations of campaign spending; two purport to ban speech from disfavored groups (foreigners, and government contractors); and one aims to regulate the price of television ads for political speech.

But the Supreme Court has already signaled the uncertain power of Congress to control prices in this (in their view at least, increasingly competitive) speech market. And it is unlikely the Court will look favorably at a broad ban on government contractors speaking, especially when that ban is a response to its own ruling. And finally it is completely unclear how foreigners get regulated under the Court's reasoning in Citizens United: the whole point of that Court's rule was that the First Amendment didn't care about who the target of speech regulation was; whether person or not, the government was not allowed to "abridge the freedom of speech." Why that rule would be different when the entity silenced is French rather than corporate is completely obscure. ...