Tag: campaign expenditures

Lawrence Lessig’s Constitutional Amendment

Lawrence Lessig has proposed a constitutional amendment in response to the U.S. Supreme Court’s decision in Citizens United.  It reads:

“Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.”

In Citizens United, the Court said that the First Amendment concerns speech rather than speakers. Congress has no power to discriminate against speakers; hence, a source of speech - people organized as a corporation - could not be prohibited from speaking (or funding speech).

Professor Lessig hopes to introduce a discrimination among speakers into the First Amendment. His proposed discrimination will not lose a popularity contest. He wishes to allow Congress to control the speech of non-citizens.  He follows two lines of argument in support of his amendment, one less rational than the other.

The less rational line of appeal to the reader is both implicit and predictable. The Chinese are invoked along with the Chamber of Commerce. A denial of xenophobic intent follows immediately, and “We the People” appear near the end. Carl Schmitt would recognize the rhetorical construction of “friend and enemy.” Rather cleverly, Lessig manages to equate the foreign devils with the internal demons of the liberal mind. Corporations (including the Sierra Club?) and the Chinese (or other foreigner) are on one side of political struggles while “We the People” are on the other.

Lessig’s more rational line of argument: “elections are private. It is we - citizens- who are to select who is to govern us. And it is completely appropriate for us to protect the debate we have about that selection by limiting disproportionate spending by non-citizens.” He later suggests the propriety of “protecting elections against undue influence by non-citizens.”

Notice Lessig moves from an widely-held premise “only citizens should select those who govern” to conclude “we should protect elections against the undue influence of non-citizens.” His idea of “dependence” relates his premise to his conclusion. Allowing spending by non-citizens would make voters dependent on them and thus preclude select of the our rulers by “us.”

What is missing here, oddly enough, is the citizens themselves. After all, the non-citizens do not simply give money to voters. They spend money to create and communicate political speech. Voters are the intermediaries between that speech and the selection of government officials. Citizens decide how much influence political speech of all kinds should have.  Lessig’s concern about undue influence seems to be a concern that voters will be fooled by internal or external foreigners to the detriment of our nation. But the Constitution says that citizens, whatever their failings, are the best filter of speech.

Lessig’s amendment would substitute the judgment of Congress for that of citizens at least in regard to the speech of non-citizens.  Congress would decide how much spending on speech is “due” and how much would lead to “undue influence” by non-citizens. A court would then be called upon to decide whether the limits chosen by Congress constitute a de facto ban on speech. This process of legislating and litigation would yield how much speech citizens are allowed to hear.

Keep in mind that not all the ideas of foreigners are inimical to the people of the United States. Liberals did not seem to mind the support Barack Obama received from cheering crowds in Berlin. Perhaps Americans should hear about the suffering caused abroad by trade protectionism. It is also true that the interests of foreigners are sometimes at odds with the interests of Americans. Who should decide which ideas espoused by foreigners are good for the nation and which inimical? Should Congress decide or citizens?

We might also wonder whether Lessig’s amendment would even apply to corporations. The corporation is a product of contracts among owners and others. These contracts provide for agents who run the corporation and decide many things including whether to fund political speech on behalf of the enterprise. All of this, contracts included, are the actions of real people, most of whom will be citizens. Would a court define “non-citizens” as a group of citizens who associate together in the corporate form?

Lessig invokes the framers of the Constitution to support his concern about non-citizens. Here he has some historical warrant for his arguments. The founders were concerned about foreign influences undermining the new republic in favor of monarchy. But the United States is now much older and more stable and aptly open to foreign influence through investment and trade. If anything, its citizens are too concerned about the dangers coming from abroad. That is all the more true when the non-citizen or “the foreigner” is identified as other Americans who happen to be associating in a corporate form.



Supreme Court Ruling on Hillary Movie Heralds Freer Speech for All of Us

Today the Supreme Court struck a major blow for free speech by correctly holding that government cannot try to “level the political playing field” by banning corporations from making independent campaign expenditures on films, books, or even campaign signs.

As Justice Kennedy said in announcing the opinion, “if the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.”

While the Court has long upheld campaign finance regulations as a way to prevent corruption in elections, it has also repeated that equalizing speech is never a valid government interest.

After all, to make campaign spending equal, the government would have to prevent some people or groups from spending less than they wished. That is directly contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions about the freedom of speech.

No case demonstrates this idea better than Citizens United, where a nonprofit corporation made no donations to candidates but rather spent money to spread its ideas about Hillary Clinton independent of the campaigns of primary opponent Barack Obama, potential general election opponent John McCain, or any other candidates. Where is the “corruption” if the campaign(s) being supported have no knowledge, let alone control over what independent actors do? – be they one person, two people, or a large group?

Today’s ruling may well lead to more corporate and union election spending, but none of this money will go directly to candidates – so there is no possible corruption or even “appearance of corruption.” It will go instead to spreading information about candidates and issues. Such increases in spending should be welcome because studies have shown that more spending — more political communication — leads to better-informed voters.

In short, the Citizens United decision has strengthened both the First Amendment and American democracy.

For more background on the case, here’s a primer: