This land is his land?
By Lawrence Lessig
Editor’s Note: Lawrence Lessig testified on July 24 before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Human Rights in its hearing on “Taking Back Our Democracy: Responding to Citizens United and the Rise of Super PACs.” What follows is an edited version of his testimony.
The problem in America’s democracy that Citizens United has come to represent can be simply stated: The People have lost faith in their government.
They have lost the faith that their government is responsive to them because they have become convinced that their government is more responsive to those who fund your campaigns. As all of you, Democrats, Republicans, and Independents alike, find yourselves forced into a cycle of perpetual fundraising—spending anywhere between 30 percent and 70 percent of your time raising money to get back into office or to get your party back into power—you become, or at least most Americans believe you become, responsive to the will of “the Funders.”
But “the Funders” are not “the People”: 0.26 percent of Americans give more than $200 in a Congressional campaign; 0.05 percent give the maximum amount to any Congressional candidate; and 0.01 percent—the 1 percent of the 1 percent—give more than $10,000 in an election cycle.
Citizens United has only made this problem worse, as it has further and predictably concentrated funding in an even smaller slice of America. In the current presidential election cycle, 0.000063 percent of America—that’s 196 citizens—have funded 80 percent of individual Super PAC contributions up to now. Only twenty-two Americans— that’s seven-one-millionths of 1 percent—account for 50 percent of that funding. Citizens United has thus further shifted the sources of campaign funding toward an ever-shrinking few.
This, Senators, is corruption. Not “corruption” in the criminal sense. I am not talking about bribery or quid pro quo influence peddling. It is instead “corruption” in a sense that our Framers would certainly and easily have recognized: They designed this branch of government to be, as Federalist 52 puts it, “dependent upon the People alone.” You have evolved a government that is not dependent upon the People alone, but that is also dependent upon the Funders. That different and conflicting dependence is a corruption of our Framers’ design, now made radically worse by the errors of Citizens United. As the Supreme Court has now doubled down on its deeply flawed decision, it is both appropriate and necessary for this Congress to consider how best to respond.
But in considering that response, you should not lose sight of this one critical fact: On January 20, 2010, the day before Citizens United was decided, our democracy was already broken. Citizens United may have shot the body, but the body was already cold. And any response to Citizens United must also respond to that more fundamental corruption. We must find a way to restore a government “dependent upon the People alone,” so that we give “the People” a reason again to have confidence in their government.
There can be no question that changes in the concentration of funding have been driven by Citizens United. It is this concentration that defines the corruption, for it is this concentration that creates the corrupting dependence.
Only a system of “citizen-funded elections”—where dependence upon “the Funders” is the same as dependence upon “the People”—could reform that corruption.
The reform that this Congress needs to effect is not any change of the Framers’ design. It is a restoration of that design. We don’t need to decide whether to add a new principle to their Constitution. We need simply to figure out how best to respect the principles that already guided them.
The Framers gave us a “Republic.” But by a Republic, they meant a “representative democracy.” And by a “representative democracy,” they meant a government with a branch that would be “dependent upon the People alone.”
The simplest and most important objective of any constitutional amendment must be to restore that critical principle by removing a dependence on anything save “the People alone.”
This is a short excerpt of Lessig's article in the October issue of The Progressive.