BREAKING: Congress’s response to Citizens United

February 11, 2010

The package the Democrats are proposing is filled with ideas that either won't work or that, if they worked, would only invite the Supreme Court to strike again. (For a description of the proposed changes and my reactions to them, click here or scroll to the bottom of this page.)

Congress had a chance to do something real here, but rather than supporting a bold reform that would make our democracy function better, they failed; they changed nothing. And as a result, our representatives' dependency on campaign funders -- the central corrupting force acting on our government -- will continue for another day.

You know why it happened this way. Members of Congress have every incentive to preserve a system that keeps them in office by keeping their campaign coffers full. So the very same funders who've blocked progress on issue after issue for decades have now conspired to block a reform that would have made those other reforms possible.

What we need to do is show members of Congress that they're also dependent on another constituency: the voters. We're following this issue. We know the difference between fake reform and real reform. And come November, we'll make our decisions based on who had the courage to stand up to the funders, and who tried to sell America a bill of goods while protecting the status quo.

The Fair Elections Now Act is the reform we need, and we still have the chance to push Congress to pass it. So far, 135 Members of the House have signed on as co-sponsors, but we must continue to urge all of our representatives to support this crucial bill. You can use our simple tool to email your members of Congress and tell them that this issue won't fly under the radar in 2010:

http://fixcongressfirst.org/email

If the Democratic Party wants to lead, then they need to show us they're ready to lead. And if the Republican Party wants to rise back to power, they need to prove they'd use that power to enact the will of the people.

Please take action today to make real reform possible.

-- Lawrence Lessig

These are the changes the Democratic leadership proposes, and my view about each. As you read these, ask yourself: Will this change reform the fundraising Congress? Will it really make Members of Congress any less dependent on special interests?

(1) Ban foreign corporations from influencing elections.

This is a fine idea. Problem is that it is completely unclear how under the Supreme Court's reasoning this change would be constitutional. The Court said the First Amendment doesn't care who is trying to exercise the right to speak -- that the First Amendment simply limits the government's power to regulate speech. So how will it find foreigners have less freedom than corporations?

(2) Stop government contractors or TARP recipients who haven't repaid from political spending.

This selective regulation is Supreme Court bait: it wasn't imposed on TARP recipients when they took the money, and my bet is the Court views the government contractors limitation as too broad.

(3) Impose new disclosure requirements, so that the ultimate funder is exposed.

A perfectly fine regulation, but to what effect? Will the disclosure really make Members less dependent on the funders?

(4) Impose new disclaimers on TV ads.

Same point as above.

(5) Require candidates to have reasonable access to air time.

This is promising and important, though the Court has signaled increasing impatience with this sort of regulation. So again, an uncertain reform of limited effect.