The (Almost) Brilliance of Representative Dingell and His Friends

Can the longest-sitting member of Congress force the Supreme Court to reconsider its Citizens United decision?



Representative John Dingell (D-MI), the longest-sitting member of Congress, introduced a bill Thursday designed to force the Supreme Court to reconsider its Citizens United decision. Along with at least ten co-sponsors, Dingell's Restoring Confidence in Our Democracy Act, would ban corporations and unions from making independent political expenditures. It would also subject Super PACs to the same contribution limits that exist with other PACs. Dingell intends the bill to provide "the factual record which details the negative effects of increased spending in our elections." That factual record, he hopes, will get the Court to reverse itself, and restore Congress' power to limit a form of spending that Dingell (rightly) believes has eroded even further America's "confidence" in "our democracy."

Dingell's bill, however, is effectively two bills-- one that would require the Court to reverse itself, if indeed the new law were upheld, and the other that would not require the Court to reverse itself but would instead give the Court a chance to address a kind of corruption that so far the Supreme Court has ignored. It is unlikely (in the extreme) that the Court is going to reverse itself. But if framed properly, Dingell's bill could well map a way for Congress to staunch the corrupting influence of Super PAC spending without forcing the Court to eat its Citizens United words.

Despite all the ruckus, the holding in Citizens United is actually quite narrow. All the Court decided was that an (effectively) absolute ban on independent political expenditures by corporations could not survive First Amendment review, because nobody could believe that the speech that was being "abridged" was speech that betrayed quid pro quo corruption. Citizens United is a non-profit corporation. Its desire was to fund the distribution of a film about Hillary Clinton. The Bipartisan Campaign Reform Act seemed to forbid such funding, at least from the corporation's treasury. The Supreme Court had to decide whether such an absolute ban should be permitted.

In the past, the Court had upheld limitations on political speech when they were necessary to avoid "corruption" or the "appearance of corruption." So the question for the Court in Citizens United was whether every dollar spent by a corporation (independently of a campaign) to promote one political candidate over another was an instance of "corruption."

The Court held -- and was right to hold -- that it wasn't. Not every "independent political expenditure" is evidence of a bribe or quid pro quo influence peddling. Sometimes, believe it or not, an independent expenditure is just an independent expenditure. So if the only basis the Court has for upholding a restriction on political speech is quid pro quo corruption, or the appearance of quid pro quo corruption, that ground is not solid enough to bear the weight of a complete ban on independent expenditures by corporations or by anyone.

The first part of Dingell's bill is inconsistent with this principle. But interestingly, the second part is not -- or at least, is not necessarily. And if effectively insulated from the constitutional taint of the first part, could provide a critical vehicle for reestablishing a power that Congress certainly should have.

The second part of Dingell's bill simply limits contributions to so called "Super PACs," by requiring that they be subject to the same contribution caps that any other PAC must obey. Crucially, the justification for this limit need have nothing to do with "quid pro quo" corruption.

As I've explained on these pages again and again, the Framers of our Constitution gave us a "Republic." By "a Republic," they meant a "representative democracy." And by "a representative democracy," they meant a government that in the legislative branch at least was to be, as Federalist 52 describes it, "dependent upon the People alone."

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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, 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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