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Letter to Senator Blumenthal from Lawrence Lessig

Letter to Senator Blumenthal from Lawrence Lessig

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Published by Lawrence Lessig
A proposal for legislation that could limit SuperPACs
A proposal for legislation that could limit SuperPACs

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Published by: Lawrence Lessig on Aug 03, 2012
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04/07/2013

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 July 25, 2012 The Honorable Senator Richard Blumenthal702 Hart Senate Office Bldg. Washington, DC 20510Dear Senator:In the hearing yesterday before the Judiciary Committee’ssubcommittee on
The Constitution, Civil Rights and Human Rights 
, you asked a very astute question that I did not adequately answer.I don’t have the transcript of the hearing before me, but thegist of your question was whether there was anything thatCongress or a state might do to limit the negative consequences of 
Citizens United 
, short of an amendment.My answer to you simply repeated the valuable testimony of Congresswoman Donna Edwards — that there were three legsto this stool, disclosure, public funding, and a constitutionalamendment to reverse the Court’s decision in
Citizens United.
Thatanswer is correct: those three steps would, in my view, be enough torepair this corrupted system.But as I’ve argued before, in fact I believe there’s anotherstep that Congress could take before any amendment could beproposed and ratified, that might indeed negate the need for any amendment: Congress could simply enact a statute that severely limited contributions to “independent political actioncommittees,” and justify that regulation with the theory of “dependence corruption” outlined in my testimony. That law of course would be immediately challenged. But it is my view thatthere is a significant chance the Supreme Court would uphold thatlaw, even without reversing
Citizens United.
 The reason is obscured by the clumsiness of the Courtsopinion in
Citizens United 
. But strictly speaking, what the Courtheld in
Citizens United 
was that Congress couldn’t ban absolutely political advocacy by corporations.In my view, that conclusion is plainly correct: the only relevant justification for limiting political speech is corruption, and1
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no one could believe, under any theory of “corruption,” that thenon-profit corporation Citizens United
 
“corrupted” the politicalprocess.But it is a completely separate question whether Congresshas the power to regulate the system of “independent politicalaction committees.” For whether or not they evince “corruption” inthe sense that Justice Kennedy addressed — i.e., quid-pro-quocorruption — there is no doubt that the system of “independentpolitical action committees” or Super PACs has contributed to the“dependence corruption” that I have described in my work, andthat Professor Ackerman and I described to the Court in
 McComish
.
1
  As I explained yesterday, “dependence corruption” does notallege that any Member of Congress has, or is, engaged in quid proquo influence peddling. It instead points to the system of campaignfunding, and claims (1) that system has created a dependency that(2) conflicts with a dependency upon “the People alone,” asFederalist 52 described it.It is my view, of course, that even without independentexpenditures, the federal system of campaign funding has created asystem of dependence corruption, and that the only way to addressthat corruption is through a system of citizen funded elections,such as the Fair Elections Now Act, or a voucher system such asthe one I proposed with the Grant and Franklin Project.But it is also clear that the system of Super PACs that hasevolved after
Citizens United 
betrays the same kind of “dependencecorruption”: Any political system in which .000063% of citizensprovide over 80% of independent campaign funding is a system in which (1) candidates have become dependent upon “independentfunders,” and (2) those “independent funders” are not “the People.”It is my view that Congress could build upon thisunderstanding of corruption, rooted in the understanding of theFramers, and successfully justify a statute that was narrowly tailored to eliminate that form of “dependence corruption.” Such astatute could, for example, limit the contributions to any “independent political action committee” to the same size ascontributions to any political campaign. And in justifying such alimit, Congress could point to the growing body of evidence thatdemonstrates absolutely that the system that has evolved hascreated the clear impression of corruption in the eyes of  Americans. That impression is
not 
a “mere appearance.” From the2
1
 
See
Republic, Lost 
ch1, 14
 
(2011);
Brief of Constitutional Law Scholars, McComish v. Bennett,
Supreme Court of the United States, No. 10-238 (2011).

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