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Lessig Testimony (2)

Lessig Testimony (2)

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Published by: atlanticonline on Jul 23, 2012
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01/03/2013

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 T
ESTIMONY OF
L
 AWRENCE
L
ESSIG
OY
L.
 
URMAN
P
ROFESSOR OF
L
 AW AND
L
EADERSHIP
H
 ARVARD
L
 AW
S
CHOOL
S
ENATE
 J
UDICIARY
C
OMMITTEE
,S
UBCOMMITTEE ON  THE
C
ONSTITUTION
,
 
C
IVIL
IGHTS AND
H
UMAN
IGHTS
H
EARING ON
“T
 AKING
B
 ACK
O
UR
D
EMOCRACY 
:
 
ESPONDING TO
 ITIZENS
 NITED 
  AND THE 
ISE OF
S
UPER
PAC
S
.” J
ULY
24,
 
2012I
NTRODUCTION
Mr. Chairman, and Members of the Committee, my name is Lawrence Lessig, and I am the Roy L. Furman Professor of Law and Leadership at Harvard Law School. I also direct the Univer-sity’s Edmond J. Safra Center for Ethics. I have been a professor at Stanford and the University of Chicago. Before teaching, I clerked for Judge Richard Posner of the Seventh Circuit Court of Appeals, and Justice Antonin Scalia.I commend this Committee, and its Chairman, for holding this hearing, a celebration of the extraordinary grassroots movement that has developed to demand the reversal of
Citizens United 
, and an end to a system for funding elections that leads most Americans to believe that this government is corrupt. Hundreds of thousands of citizens have gotten hundreds of cities, and now a half a dozen states, to pass resolutions calling on Congress to correct the Su-preme Court’s mistake. It has been a century since we have seen such anti-corruption activism, and it is a testament to the leader-ship of the many new grassroots organizations, such as
Free Speech
 
 for People 
, and
 Move to Amend,
that in just two years, they have achieved so much.
 
 Yet this hearing is just the beginning of the serious work that  will be required to address the problem in America’s democracy that
Citizens United 
 has come to represent. That problem 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 your-selves forced into a cycle of perpetual fundraising — spending, ac-cording to the estimates in the academic literature, anywhere be-tween 30% and 70% 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”: .26% of  Americans give more than $200 in a congressional campaign; .05% give the maximum amount to any congressional candidate; and .01% — the 1% of the 1% — give more than $10,000 in an elec-tion cycle.
1
 We have
up-sourced 
 the funding of your campaigns to the tiniest fraction of the 1%; America has grown cynical in re-sponse.
Citizens United 
 has only made this problem worse, as it has fur-ther and predictably concentrated funding in an even smaller slice of America. In the current presidential election cycle, .000063% of  America — that’s 196 citizens — have funded 80% of Super PAC spending.
2
 22 Americans — that’s 7 one-millionths of 1% — ac-count for 50% of that funding.
Citizens United 
 has thus further shifted the sources of campaign funding toward an ever shrinking few. This, Senators, is corruption. Not “corruptionin the criminal sense. I am not talking about bribery or quid pro quo influence
2
1
 See Lee Drutman,
The Political One Percent of the One Percent 
, Sunlight Foun-dation Blog, http://bit.ly/LHoAfr.
2
 Ari Berman, The .000063% Election, The Nation, http://bit.ly/LHoOmE.
 
peddling. It is instead “corruption” in a sense that our Framers  would certainly and easily have recognized: They architected a gov-ernment that in this branch at least was to be, as Federalist 52 puts it, “dependent upon the People alone.” You have evolved a govern-ment that is not dependent upon the People
alone,
but that is also dependent upon the Funders. That different and conflicting de-pendence is a corruption of our Framers’ design, now made radi-cally 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 Con-gress 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 govern-ment “dependent upon the People alone,” so that we give “the Peo-ple” a reason again to have confidence in their government.
How
 you do that will be as important as
what 
 you do. Amer-ica’s cynicism about this government — whether fair or not — is too profound to imagine that this Congress alone could craft a re-sponse that would earn the confidence of the People. The eyes of  Americans glaze over when they hear you speak of “campaign fi-nance reform,” because they don’t believe you would ever do any-thing that would truly end the institutional corruption that too many within this beltway depend upon. Instead, this Congress needs to find a process to discover the right reforms that could itself earn the trust of the American peo-ple. That process should not be dominated by politicians, or law professors, or indeed any of the professional institutions of Ameri-can government. It should be dominated instead by the People.I have today submitted to this committee the outline of one such plan — a series of “citizen conventions,” constituted as a kind of citizen jury, and convened to advise Congress about the best means of reform. But whether it is this process or another, your challenge is to find a process that could convince America that a
3

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