An Open Letter to the Citizens Against Citizens United

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Overturning the decision wouldn't be enough to level the disproportionate influence of the wealthy on American politics. There's a deeper problem Congress needs to address. 

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All across America, an uprising is growing. I'm not talking about the ongoing Occupy Wall Street movement. I'm talking about the thousands who are organizing, city by city, to end the corrupting influence of money in politics.

Triggered by outrage at the Supreme Court's decision in Citizens United v. FEC, and fueled by anger at the "superPACs" that that decision has made possible, groups such as MovetoAmend.org,Public Citizen, the Coffee PartyUnited Republic, and now Common Cause are all pushing to get cities and towns to pass resolutions demanding that Congress propose a constitutional amendment to reverse that decision and restore this democracy to its citizens. Los Angeles was the first, but by the end of this spring, thousands more will have joined LA's call.

These citizen movements are incredibly important, and their objective is plainly right. Our democracy has been corrupted by the influence of money. Politicians are dependent upon "the funders" -- spending anywhere from 30 percent to 70 percent of their time raising money from these funders. But "the funders" are not "the People": .26 percent of Americans give more than $200 in a congressional campaign; .05 percent give the max to any congressional candidate; .01 percent -- the 1 percent of the 1 percent -- give more than $10,000 in an election cycle; and .0000063 percent -- have given close to 80 percent of the super PAC money spent in this election so far. That's 196 Americans, a little less than the capacity of a single Boeing 767. On average, my colleague Paul Jorgensen calculates, the per capita contribution of the 1 percent is more than ten times the per capita contribution of the 99 percent.

One person may have one vote in this democracy. But the voices of this tiny fraction of this democracy are an order of magnitude larger than the voices of the rest of us.

The citizens pushing this change deserve our respect, and their movement has enormous potential. These are not politician-wannabes. They are not looking for a job in D.C. They are ordinary citizens who have been motivated to act because they see their government collapsing. Confidence in our Congress hovers around 10 percent. The institution is politically bankrupt. And the only way that real change has ever happened in this democracy is precisely the way it is happening now: when thousands of citizens of every political stripe band together to demand something better from their government.

But as these movements grow, it becomes critical that they demand a change that will actually fix the corruption that we now see. No doubt, Citizens United is a proper target. But we need to remember that on January 20, 2010 -- the day before Citizens United was decided -- our democracy was already broken. Already, Congress was dependent upon its funders, yet the funders were not "the People." Already, the tiniest slice of the 1 percent exercised an extraordinary power over the government. Citizens United no doubt made things worse. But even if it shot the body of this democracy, that body was already cold.

Reversing Citizens United is thus a critical step. But that alone will not restore this democracy. To do that, we must strike at the root of this corruption: how campaigns are funded.

If the problem with American democracy is that our government is dependent upon its funders, but the funders are not the People, then the solution is to make the funders the People. States, such as Connecticut, Maine, and Arizona, have already begun to do this for state officials. New York City has done it for city officials. By giving candidates the option to fund their campaigns only with small-dollar contributions, these systems have removed the outsized influence of a tiny slice of their citizens. They have made the funders the People.

We could do the same at the federal level -- tomorrow. Whether a matching-fund program, which multiplies small contributions so that candidates need not take large donations to win, or a voucher program, funded through a tax rebate and a levy on lobbyists and broadcasters, Congress could radically change the way campaigns get funded -- without any change in the Constitution. For less than the Pentagon spends every weekend, we could create a system in which all citizens are the funders, and that would make Congress dependent upon us.

That change alone, of course, wouldn't solve the problem of super PACs. And unless the Supreme Court reverses itself, to solve that problem would require a constitutional amendment.

But here, I fear that these extraordinary movements are demanding amendments that wouldn't even reverse Citizens United. And some of the amendments now being proposed would do so by also reversing a great deal of good in our free speech tradition.

The most common slogan of this movement is that "corporations are not persons." No doubt, that's right. No doubt, the Supreme Court's 19th century "discovery" that the Fourteenth Amendment's protection for "persons" was meant also to protect corporations was, in a word, weird. Liberal justices (such as Justice Stevens) as well as conservative justices (such as Chief Justice Rehnquist) have all called it weird. But for more than 100 years now, it has remained a staple of how rights in our constitution are read.

But Citizens United did not rest upon this weirdness. And if we amended the Constitution to declare "corporations are not persons," it is not even clear that Citizens United would be decided differently.

What the Supreme Court said in Citizens United was that Congress was trying to regulate political speech, and that such a regulation was allowed only if justified by a compelling state interest. The Court didn't find a compelling state interest, so the Court struck down the regulation. But it didn't strike that regulation down because corporations were persons. It struck it down because Congress was regulating political speech.

I believe the Court's reasoning was mistaken. But to respond to its mistake with a declaration that "corporations are not persons" alone is also a mistake. Citizens United would be reversed by granting Congress the explicit power to limit independent expenditures. And that is the call that these citizen movements need to be making, whatever else they ask for as well.

So these are the first changes that this democracy needs:

  1. Citizen-funded elections -- elections funded by citizens, not corporations (for whether or not a corporation is a person, no one has ever suggested corporations are federal citizens), and elections funded by all citizens, not just a tiny fraction of the 1 percent;
  2. Limits on independent expenditures -- whether by individuals or corporations, Congress must have the power to make sure this important political speech doesn't dominate our democracy, and thereby distract our representatives from a dependence "upon the People alone;"
  3. An express recognition in our constitution that only persons are persons -- that when the Declaration of Independence spoke of entities "endowed by their Creator with certain unalienable Rights," it was speaking of natural persons only.

These changes would restore a dependence upon "the People alone." They are the changes that these movements should be pushing.

We, the People, get this chance just about once every hundred years. In 1913, progressives of every political stripe banded together to demand a government more responsive to the People (and less responsible to the corrupt robber barons). That movement got us two amendments to the Constitution: a Senate that was directly elected, and an income tax. In 1801, Jefferson inspired, as he called it, "the second American revolution," rallying ordinary citizens to throw out a government that had become corrupted by power, and that had betrayed the ideals of the Revolution.

We can't waste this chance now. It will take years for this movement to succeed. And in some form it will succeed. But when it does, the question our children will ask us is not who ran what organization, or which .org had the largest email list. The question they will ask us is whether it won anything worth the fight.

We will do that only if we produce a government "dependent," as the Federalists put it, "upon the People alone." Alone. That is what our Framers hoped they were creating. That is what we must make real now.


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Lawrence Lessig is a contributing writer for The Atlantic, the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of Harvard's Edmond J. Safra Center for Ethics, and founder of Rootstrikers, an activist network opposed to corruption in government. More

Lessig's books include Republic, Lost: How Money Corrupts Our Congress -- and a Plan to Stop It, One Way Forward: The Outsider's Guide to Fixing the Republicand the recent Le$terland: The Corruption of Congress and How to End It. He serves on the Board of Creative Commons, MapLight, Brave New Film Foundation, The American Academy, Berlin, AXA Research Fund and iCommons.org, and on the advisory board of the Sunlight Foundation. Lessig holds a B.A. in economics and a B.S. in management from the University of Pennsylvania, an M.A. in philosophy from Cambridge, and a J.D. from Yale. Prior to rejoining the Harvard faculty, Lessig was a professor at Stanford Law School, where he founded the school's Center for Internet and Society, and at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.

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