Lawrence Lessig on campaign finance reform: Overturning ‘Citizens United’ isn’t enough

Introduction

In contrast with many other campaign finance reformers, Harvard Professor Lawrence Lessig believes fixing the U.S. election system will require more than just overturning the Citizens United v. Federal Elections Commission Supreme Court ruling, which removed many restrictions on independent political spending.

Reversing this flood of political cash would be enough to satisfy most reformers, but not Lessig, who spoke last week at the Center for Public Integrity offices in D.C. Overturning the ruling “terrifies” him, he said, because “it imagines somehow that on January 20, 2010 – the day before Citizens United was decided – our democracy was fine and Citizens United broke it. But of course, the democracy was already broken.”

Lessig, director of the Edmond J. Safra Center on Ethics at Harvard, is concerned that if the decision is quickly repealed, it will take the wind out of an effort he’s leading to achieve a more comprehensive overhaul of the election system. Then activists “will have gotten nothing out of this moment when there’s an extraordinary anger and frustration that could be channeled in the direction of real reform,” he said.

The changes Lessig is advocating for, which include but are not limited to the eventual reversal of Citizens United, are outlined in two recent books on campaign finance. He would like to see elections funded by a mix of public and limited, private donations, and a coordinated push by tea partiers, MoveOn.org, and the Occupy Wall Street crowd – a diverse cast he collectively refers to as “outsiders” – to root out the systemic corruption of Washington “insiders.”

Lessig elaborated where Washington went wrong and how to get it back on track during his presentation, the highlights of which are featured in this video by the Center’s Emma Schwartz.

After the speech, Lessig, who worked as a clerk for conservative Justice Antonin Scalia before becoming an academic, added that he was confident that Citizens United will soon be reversed by the high court.

“I think it’s quite likely Justice Kennedy is about to flip,” he said, referring to the Supreme Court justice who cast the deciding vote in the controversial 5-to-4 decision. Although Lessig cautioned that he had no inside information, he said Kennedy “is completely surprised by how much damage this decision has done – even Scalia doesn’t like the world where all the money in the world is on one side.”

Republicans, who have so far been the largest recipients of this influx of cash, have come to celebrate the new electoral landscape. As the Center has reported, it is dominated by powerful “super PACs,” – political action committees that can accept unlimited contributions from corporations, unions, wealthy Americans – and nonprofit groups that can take unlimited cash from anonymous donors and spend half of the take on political activity.

These supposedly independent groups, many of which are run by longtime political operatives with close ties the candidates they are supporting, are legally forbidden from coordinating their political messages with campaigns. But these restrictions are tough to enforce and have been the subject of mockery by comedians like Stephen Colbert, who has launched his own super PAC.

In the political system reshaped by Citizens United, these rich, powerful, election-swaying groups are largely “funded by the tiniest slice of the 1 percent,” Lessig concluded. “And that suggests a problem.”