Reconsidering the Citizens United Decision | Lawrence Lessig The Atlantic Reuters
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.
In the 225 years since, Congress has evolved a different dependence -- a dependence not upon the People alone but increasingly, a dependence upon the funders of campaigns as well.
But here's the obvious problem: the Funders are not the People. As I've written again and again, .26 percent of America gives more than $200 to any congressional candidate; .05 percent of America gives the maximum amount to any congressional campaign; .01 percent gives more than $10,000 in an election cycle; through February, .000063 percent of America -- 196 citizens -- gave close to 80 percent of Super PAC contributions. And according to U.S. PIRG and Demos, 1,000 citizens of the United States (or so we assume) have given more than 94 percent of Super PAC contributions so far.
No one could deny that politicians are dependent upon their funders. Nor could anyone believe these funders are a fair representation of the People. And thus, no one should doubt that we have allowed the system our Framers intended to be -- in a word -- corrupted. Ours is not a government with a legislature dependent upon the People alone. It is a government with a legislature dependent upon the People and upon a different and conflicting group -- the Funders.
That gap between the Funders and the People was large enough before Citizens United. It has only grown worse since. And it is this gap that constitutes the corruption of our political system. Not quid pro quo corruption but dependence corruption -- a type of corruption that was if anything more important to the Framers than the corruptions of Rod Blagojevich or Randy Duke Cunningham.
The way to attack this corruption is not to ban all speech by corporations, or unions, or individuals. It is instead to limit contributions that any individual or corporation can make, so that no one could reasonably believe that such contributions created a dependence that conflicted with a dependence upon the People alone. In my view, even that wouldn't be enough: We will end dependence corruption only when Congress enacts a system of citizen-funded campaigns. But Congress should be free to start somewhere, and beginning with the explosion of large and dominating independent contributions is a reasonable first step.
This is precisely what the second part of Representative Dingell's bill does: It doesn't purport to limit the spending of Super PACs; it instead limits the contributions made to Super PACs. And the justification for that limit, at least from the perspective of the Framers, could not be clearer: Congress is fully justified in limiting the role that contributors to Super PACs play, so that Members do not become dependent upon those contributors to Super PACs, and thereby less dependent upon the People.
Not because anyone need believe that Congress is being bought. Maybe it is, maybe it isn't, but that's not the point. The point is dependence: to assure our political system is not dependent on an influence that conflicts with a dependence upon the People alone. The conflict is a corruption. The First Amendment should permit Congress to remedy that corruption.
Dingell deserves real credit here. Among Democrats especially, all the action is either with the Disclose Act, or in the amend the Constitution crowd. But disclosure alone won't solve anything. And there's a better chance that I'd win a gold medal at the Olympics than that the United States Senate is going to muster 67 votes for any constitutional amendment. It takes insight and wisdom to see where reform might be possible -- something I missed in my recent testimony to the Senate. Let's hope it is a point more in the House, and at least 50 in the Senate, come to see.
Copyright 2012 The Atlantic Monthly Group