Campaign-Finance Reform Has to Be Cross-Partisan

By Lawrence Lessig

The vast majority of Americans—more than 90 percent in recent polls—believe it “important” to “reduce the influence of money in politics.” But is the business model of the reformers actually consistent with winning reform?

This is the fair but hard question raised by the strategy planned by Senate Democrats this summer to force a vote on New Mexico Senator Tom Udall’s proposed constitutional amendment to give Congress the power “to regulate the raising and spending of money” in elections. Forty-three Senate Democrats have cosponsored the resolution. Zero Republicans have. Zero is the same number of Republicans who have joined any of the proposed constitutional amendments now floating about in Congress to, as they are described, “reverse Citizens United.” Constitutional reform to give Congress the power to further regulate campaign cash is the exclusive domain of the Democrats (excepting, of course, the ACLU Democrats; the ACLU opposes such amendments).

I suspect Democrats like it this way. These amendments are catnip to the Democratic base, the equivalent of Obamacare for Republicans. The Senate debate this August will not change a single Republican vote. But it is certain to raise a ton of campaign cash for Democrats—just in time for the 2014 elections.

For Congress to actually propose an amendment to the Constitution requires 67 votes in the Senate (and 290 votes in the now Republican-controlled House). On the current count, that means at least a dozen Republicans would need to cross the aisle to join Udall (assuming what certainly isn’t given—that he could get a unanimous vote from his own party). And though I am no leader of the U.S. Senate, it seems to me unlikely that forcing a partisan fight on the eve of an election is a winning strategy for flipping at least a third of Senate Republicans. Nor does it seem likely—unless annexing Canada is in the works—that Democrats are going to gain a two-thirds majority in the Senate anytime soon.

Instead, if there is going to be fundamental reform, that reform must be cross-partisan. And in the upset election that removed Eric Cantor, the seeds to that cross-partisan reform are clear.

The single central flaw in American democracy today is not the speech within elections—not how much or how nasty or by whom. The single central flaw is the fundraising. America has outsourced the funding of campaigns to the tiniest fraction of the 1 percent. That tiny fraction then leverages its power to enormous effect. It turns otherwise conservative Republicans into “crony capitalists”—the tag David Brat successfully attached to Eric Cantor. It turns otherwise progressive Democrats into the “tools of Wall Street”—think Clinton-led deregulation in the 1990s. Bending goes both ways, pushing the principles on both the right and left off the table. The reality of the need to fundraise is the reality of everything in D.C. And thus it is no surprise that the largest empirical study of policy decisions ever in the history of political science finds a government responsive to the wants of the “economic elite” and “business interests,” but finds “average citizens ... have little or no independent influence.”

Restricting the money spent in elections won’t change this. (Wherever the limit is set, the cash still needs to be raised.) Neither will declaring that “corporations are not persons” change this. (The tiny fraction of the 1 percent that funds campaigns includes no corporations.) The only way to change this is to change the way we fund elections. Both Democrats and Republicans have offered strategies for spreading out the funder influence, consistent with the Constitution as interpreted by this Supreme Court.

Maryland Democratic Representative John Sarbanes’s Government by the People Act, for example, introduced in February, would provide matching funds for small-dollar-funded campaigns—enough to make it possible for a candidate to win without becoming dependent upon this tiny fraction of the 1 percent. And more than two years ago, George W. Bush’s ethics czar, Richard Painter, proposed the Taxation Only With Representation Act, which would give every voter a $200 voucher to fund small-dollar campaigns.

These two strategies are actually the same. They both reduce the enormous leverage that large contributors have. And they both would thus remove the ongoing temptation within both parties to compromise their basic commitments to make their (few) funders happy. Robert Kaiser’s great book, So Damn Much Money, tells the story of the Gingrich revolution, derailed by its dependence on crony cash. Cantor’s “cronyism” is that story retold. And no Democrat who is honest could look back at the last 20 years and see a pattern for that party that’s much different. Both sides are held hostage by this system of campaign funding. Both sides have a reason to change it.

But could either pursue a cross-partisan a strategy?

It’s no secret that I believe that there is such a strategy. It begins outside of Washington; it stays firmly committed to putting partisan differences to one side; it remains fiercely focused on the first step to making every other change possible—electing a Congress committed to fundamental reform in the way campaigns are funded. That’s the objective of the MaydayPAC that I started with Republican Mark McKinnon. That’s the reason over 15,000 people have contributed now almost $3 million to demonstrate its potential in 2014.

Yet it’s not clear that any within the political mainstream could give up a fundamental commitment to partisanship enough to embrace such a change. It’s not even clear that any of them can even utter “this is so good,” without adding “because they are so bad.” So if this movement needs to be cross-partisan, it cannot be theirs. And whether without them it can succeed is a question no one can answer—at least yet.

This article available online at:

http://www.theatlantic.com/politics/archive/2014/06/campaign-finance-reform-has-to-be-cross-partisan/372983/