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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
 A
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
UL
24,
 
2012I
NTRODUCTION
Mr. Chairman, and Members of the Committee, my name isLawrence 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 atStanford and the University of Chicago. Before teaching, I clerkedfor Judge Richard Posner of the Seventh Circuit Court of Appeals,and Justice Antonin Scalia.I commend this Committee, and its Chairman, for holding thishearing, a celebration of the extraordinary grassroots movementthat has developed to demand the reversal of 
Citizens United 
, andan end to a system for funding elections that leads most Americansto believe that this government is corrupt. Hundreds of thousandsof citizens have gotten hundreds of cities, and now a half a dozenstates, to pass resolutions calling on Congress to correct the Su-preme Court’s mistake. It has been a century since we have seensuch 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 haveachieved 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 besimply stated:
The People have lost faith in their government.
 They have lost the faith that their government is responsive tothem, because they have become convinced that their governmentis 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 intooffice or to get your party back into power — you become, or atleast 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 tothe 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 sliceof America. In the current presidential election cycle, .000063% of  America — that’s 196 citizens — have funded 80% of Super PACspending.
2
22 Americans — that’s 7 one-millionths of 1% — ac-count for 50% of that funding.
Citizens United 
has thus furthershifted the sources of campaign funding toward an ever shrinkingfew. This, Senators, is corruption. Not “corruptionin the criminalsense. 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 putsit, “dependent upon the People alone.” You have evolved a govern-ment that is not dependent upon the People
alone,
but that is alsodependent 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. Andany response to
Citizens United 
must also respond to that morefundamental 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 — istoo 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 toomany within this beltway depend upon.Instead, this Congress needs to find a process to discover theright 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 onesuch plan — a series of “citizen conventions,” constituted as a kindof citizen jury, and convened to advise Congress about the bestmeans of reform. But whether it is this process or another, yourchallenge is to find a process that could convince America that a
3

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