Campaign Finance

Stop the Car, Larry. I Want to Get Out.


Today I received an update from Stanford law professor Lawrence Lessig in which he hits me up for money on behalf of his Change Congress project, thanks me for all I've done so far to support the organization (shucks, Larry, it was nothing—literally), and closes by saying, "I'm looking forward to traveling this road with you in the months ahead." Among other destinations, this road leads (as I noted yesterday) to a constitutional amendment that would reverse the Supreme Court's decision in Citizens United. Lessig wants not only to reinstate the speech restrictions that the Court overturned; he wants to take money out of politics once and for all:

It is not enough for us to get back to the world we had the day before the decision came down; that world was already corrupted by a Congress dependent upon special interest funding. Our Framers wanted a Congress dependent not upon foreign powers, or upon the President, or upon anything else save upon the People. Yet that is not our Congress today.

Amending the Constitution is a profound endeavor, and drafting the text that we would put before the American people for their consideration can't be done by a single person or in a single week. But our shared objective must be an amendment that gives Congress the power to restore its independence, and I am working closely with others now to help craft exactly that amendment.

Talk like this worries me more than the inane, doomed Free Speech for People Amendment, because it is more likely to be taken seriously and might, given Lessig's grand ambitions, do even more damage. To reassure me and other potential supporters who are nervous about amending the Constitution, Lessig tells a heartwarming story about a speech he gave yesterday at the Cato Institute, which he erroneously but tellingly identifies as "a prominent conservative think tank." His message was that "policies like heavy regulation and the complicated tax code—so many of the things that millions and millions of people dislike about the laws of this country—are the product of special-interest intervention into the legislative process." He was happy to find that many in his audience agreed with that analysis. "We agree about the problems," he writes. "Now we need to agree about the solution."

That second part is a bit of a hitch, because while the folks at Cato would respond to special-interest lobbying by reducing the size and scope of government so less of life is politicized and there is less to lobby about, Lessig would respond by amending the Constitution to restrict freedom of speech. Given this fundamental disagreement, Lessig's efforts to "build an understanding" with libertarians (and other fans of the First Amendment) will not get him where he wants to go.

You can see Lessig's Cato speech here.

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  1. “Amending the Constitution is a profound endeavor, and drafting the text that we would put before the American people for their consideration can’t be done by a single person or in a single week.”

    Oh, ok, so it’s going to be a 2,000 page Constitutional amendment . . .

    1. Whether somebody proposes amending the constitution as a solution any problem that’s even mildly contraversal, that’s a very loud signal that they don’t know what the hell they are talking about. Amending the constitution in neigh impossible at this point, possibly due to the hyper-partisan nature of the nation since Watergate. The last successful proposal of an amendment happened in 1971. (The last amendment that passed in 1992, but that amendment was actually proposed in 1789 but not ratified by a sufficient number of states until 1992.)

      1. That might also be due to the fact that the “living Constitution” philosophy favored by the modern judiciary makes amendments unnecessary.

        1. “Dyin’ ain’t much of a livin’.”

          Josey Wales, philosopher

  2. Professor Lessig writes:

    “But our shared objective must be an amendment that gives Congress the power to restore its independence”

    Unh, prof, maybe you haven’t noticed, but the US Constitution already gives Congress independence. Mainly, Congress just has to stop handing that power over to the Executive Branch and regulatory bodies.

    1. The congress isn’t supposed to be “independent”, it’s supposed to answer to the sovereign power, which is us.


      1. Point conceded.

        I was thinking of it in terms of the Executive Branch.

  3. “he wants to take money out of politics once and for all”


    While you’re at it, could you get rid of the deciet, manipulation, dishonesty and violence? Yeah, that would be great. Because we all know that the government can solve all our problems if we just held hands and tried a little bit harder this time to work out those pesky kinks.

    1. Hey! Kinks have rights, too!

      1. I like the Kinks early stuff, and “Come Dancing” is a guilty pleasure

    2. FINALLY! Someone understands me.

    3. Oh if only the right people were in charge everything would be lovely!

  4. So the Democrats have looked at their falling approval numbers and have decided their best course of action to get more people on their side is to F with the constitution. Awesome.

  5. But our shared objective must be an amendment that gives Congress the power to restore its independence…

    This part is funny, like Congressmen are helpless but to do their corporate masters’ bidding, and are wholly incapable of rational thought or moral agency. We must save Congress from itself!

    1. Exactly. WTF. Did I miss an Amendment that says, “Congress shall direct its attention to solving the needs of the biggest lobbyists,” thereby requiring another Amendment to reverse it?

      Man, am I pissed.

      1. Have you ever heard the expression “The customer is always right?”

        1. Yeah, but what happened to, “We reserve the right to refuse service to anyone?”

          1. What kind of vigilante are you?

        2. Oh, wait; I guess Congress is applying THAT one to the actual voters. Nevermind.

        3. “No shirt, no shoes, no service” seems more appropriate in this case.

    2. Well to be fair, people with diminished capacity are generally provided additional legal protections because they can’t really take care of themselves.

  6. It is not enough for us to get back to the world we had the day before the decision came down; that world was already corrupted by a Congress dependent upon special interest funding.

    “Here a virginal flower I used to be, with virtue my body filled, and now that defiled my body was, I am but a whore and nothing else.”

  7. “… and are wholly incapable of rational thought or moral agency.”

    Think I might have to concede that point.

  8. Our Framers wanted a Congress dependent not upon foreign powers, or upon the President, or upon anything else save upon the People.

    I’m pretty sure that the Founders just wanted that for the House and to have a more staid, less-rowdy Senate. I doubt that the people complaining about the recent ruling would want to get rid of the 17th Amendment, too.

  9. Amending the Constitution is a profound endeavor, and drafting the text that we would put before the American people for their consideration can’t be done by a single person or in a single week.

    Translation: he’s not willing to offer up any hypothetical text, because he knows there is no possible text that can be devised that won’t destroy any number of existing institutions and freedoms.

    I’ll save some time for you, Larry:

    There is no way to write such an amendment without enshrining in the Constitution the concept of a state-approved press, or without requiring all press activities to be undertaken by sole propietorships. None.

    1. Hey, partnerships with unlimited liability might be allowable too.

    2. Don’t we already a state approved press?

      Obama has been helpfully defining what news organizations are “legitimate” and which aren’t.

  10. I’m surprised there aren’t more dead college professors.

  11. I used to have respect for him…

  12. I don’t understand something about the Citizens United case. Was Hilary: The Movie banned outright because it was deemed political speech by a corporation or was it banned for a limited time because it coincided with the run-up to an election? If it is because of the latter, who determines what the time frame prior to voting is that the populace is most susceptible to political messages? Also, isn’t the period prior to an election pretty much all the time?

    1. Nevermind, I just looked it up.

  13. Well, if Lessig not only thinks

    (1) Cato is conservative, but also
    (2) the First Amendment needs to be amended to (somehow) separate “media” organizations from others so the others can feel the full weight of the federal jackboot . . . ., but also

    (3) Money and power can somehow be kept apart,

    then Lessig is three times a fool.

  14. And can I just point out that I find it very revealing that “progressives” are suddenly very, very worked up about a Constitutional amendment that will expand the power of the state, but have never lifted a finger on behalf of an amendment that would limit the power of the state.

    By their works shall you know them . . . .

    1. Shhhhh…

    2. They supported the amendment that repealed Prohibition.

      1. Only reluctantly, when it became popular to do so. They had been the driving force behind the 18th.

      2. So they reinstitute alcohol taxes.

  15. Lessig’s efforts to “build an understanding” with libertarians (and other fans of the First Amendment) will not get him where he wants to go.

    He has gotten libertarians to give heaps of money, publicity, and self-destructive concessions of lofty moral standing to enemies of libertarianism (himself, for example). Maybe that’s how he wants to get there.

    I’ve always said so, but I always say that.

  16. Really? Really? The Dems are getting killed out there and this is the hill they want to die on?

    As I’ve said before, the GOP are idiots but the Dems are making them look not utterly retarded in comparison.

  17. If Congress is such a puppet of monied interests, why would those interests allow either House to muster a two-thirds majority to pass an amendment to change that?

    Sure, you can try the convention called by the states route . . . but the same interests are free to buy the state legislatures, too.

    If an amendment to remove the influence of money is possible, it has proved itself unnecessary. If it is necessary, then effort spent for its passage is futile.

    1. stop with the logic!!

      1. BHO will just issue an Executive Order.

    2. If corporations are in such control of everything how come the government has imposed the highest corporate tax rate on them in the western world?

    3. It’s also funny to consider that McCain Feingold only applied to federal elections, so state legislatures should already have been bought by corporations by now.

  18. “But our shared objective must be an amendment that gives Congress the power to restore its independence…”

    Congress already has the power to be independent, it simply CHOSE to be corrupt. And it will always choose to be corrupt as long as they have power that special interests want.

  19. I’ve never thought Lessig was quite the scholar he’s made out to be. Seems like he’s wrong about most things.

    1. It’s strange… apparently he used to be a “libertarian/conservative” (IMO, anyone who uses “libertarian/conservative” seriously doesn’t understand either set of beliefs very well) but got more “liberal” after taking philosophy classes at Cambridge. (wikipedia ftw)

      This strikes me as odd, because my personal experience with philosophy has made me MORE libertarian, especially regarding “law.”

      I’m kind of curious how they taught philosophy in such a way that Lessig became a statutoy law wonk

      But, alas, I won’t invest the time and energy into further understanding the source of this confusion, since Lessig’s own attempt to try to “build an understanding” with libertarians seems to include calling CATO “a prominent conservative think tank.” That would be like taking a speech improvisation lesson from Obama.

      1. Strange, really, how people with certain beliefs suddenly start saying completely different things, unthinkingly parroting retarded conformist left-wing views. Lessig, Krugman…

        I’m not suggesting the Obama administration is literally killing potential intellectual opposition within the left and replacing them with mindless robots, or anything. I’m just saying it’s a little suspicious and terrifying, is all.

  20. As Fluffy rightly points out above, there is no way you could write such an amendment without demanding that all media outlets sole proprieterships.

    The only way you could do it would be for the government to create a specialized and licensed class of “journalists”. If a company wanted to publish a newspaper or a magazine, it would have to apply for a government license and prove to some bureaucrat that it really was a journalistic operation and not a front for the corporation. You can easily imagine large and complex regulations being drafted that defined what is and is not a “bonified journalistic endeveor” and what is not. And of course there would be endless litigation as partisians used the system to harrass their enemies. And it would of course be totally incomprehensible to the average person. In order to start a media outlet, a newspaper or a radio station or magazine, a person would have to navigate a maze of complex regulations and bureaucracies and employ specialized lawyers in order to get the government’s permission to do so.

    But remember, this is all in the name of protecting free speech.

    1. John, what you have described is exactly what campaign finance “reform” turned into.

      1. Exactly. And that is exactly what corporate speech restrictions would have become had the court not struck them down.

    2. bona fide

      Were you really a lawyer? Really?

    3. Um, wouldn’t regulation or licensing of the press also violate the First Amendment?

      I seem to remember something about “the press” in there.

      It would seem to follow that the government cannot place requirements that the press do anything.

      The press can voluntarily restrict and censor themselves, as they have proven.

      1. First, it depends on what you think “the press” in the 1st amendment refers to: The profession of newsgathering and publishing or the physical plant necessary for publishing.

        If it’s the former, then the government has the authority to decide who does and does not qualify as “the press” with all the potential for abuse that you note. If it’s the latter then the Citizen’s United ruling is absolutely correct.

        The people who hate this ruling are either not thinking beyond their visceral populist hatred of “Big Business” and seeing the consequences of their desire to limit corporate speech or they know full well that their is no sensible distinction between a media corporation and a regular corporation and are lokking to censor the media.

  21. And I don’t think they are serious about this. They know they will never make any progress. But, it is a wonderful cause to get the stupid to part with their money to support hacks like Lessing.

  22. We agree that your problem is a hangnail; now we need to agree about the solution. I suggest amputation, say, above the knee.

  23. Btw, I’m starting to think that Obama sees Citizens United as actually pretty useful. If the Dems get trounced in November, he can blame it on a deluge of corproate money helping out the GOP (whatever the facts turn out to be). This will help him get a second term in 2012. Maybe then they can go for a second shot at speech restriction.

    1. It will definitely give liberals a myth to hold onto and keep them from having to admit no one likes their stinking policies. But I don’t think it will help Obama much in 2012. Most people don’t know or care much about this decision. And even if they do, they care about the deficit and the unemployment rate a lot more.

    2. *Counts number of days until Jan 20, 2017.*


      1. Count days until Jan 20th 2013. I am going to tell you something and you can hold me to it. Obama will not even get the Democratic nomination in 2012. After the Dems, get killed in November, Hillary Clinton will resign from State and launch a primary challenge against him. And she will win. Remember, in 2008 she won all of the primaries. Obama won because of strong armed tactics in the caucuses. If Hillary could kill Obama in Pennsylvania and Ohio primaries in 08, what do you think she will do to him in 2012 after four years of 10+% unemployment? And don’t thinkt he liberals are not going to turn on him. You can see it already on here when Chony gets on here and claims with a straight face that the progressives really supported Hillary and voted for BO out of loyalty. You watch, once she launches the liberals will line up behind her and pretend they never supported Obama. I have no idea if she would win the general election. But I bet she wins the nomination.

        1. John, as much as I would like to see that happen (except for the 10% unemployment bit), it’s not very likely.

          1. It may not seem likely now, but that is what makes it a prediction. I am not saying it isn’t bold. But I will stand buy it. The Dems are panicing over the prospect of only having 59 Senate seats. They are going to go insane after November. You watch.

            1. The chances of Obama not being the Democratic nominee in 2012 are zero. It’s simply not going to happen. Try living in the real world.

              1. Just like the chances of Johnson not being the Dem nominee in 1968 were about zero in 1965. Try thinking for yourself sometime instead of just repeating conventional wisdom.

                1. If Obama is the first sitting president to not receive his party’s nomination in 44 years, and the Democrat nominee is seen to be in any way responsible for this, they can expect epic-low black turnout (and thus a huge loss) in the general.

                  Hillary is too smart to let that happen to her. She’s waiting on 2016.

                  1. Tulpa makes a good point John. Though I wonder, if things get bad enough, will Obama listen to the advice of the DNC and the Party money people and pull an LBJ, abdicating the crown for someone with a real shot at winning.

  24. Jacob:

    Where Lessig and his ilk are right is that in substantive policy terms, libertarians don’t want excessive corporate control of the political process: most lobbying from individual businesses or from sectoral groups (wide fronts like the Chamber of Commerce are another matter) are much more likely to be rent-seeking and favor further government intervention and special treatment than to argue for a smaller government and free-market policies. At least Lessig gets that “pro-business” and free-market are not the same thing (even if he doesn’t know the difference between libertarians and conservatives).

    What Lessig et. al. don’t seem to understand (or want to understand) is that libertarians are not about to give up the most basic liberties of all in order to reduce corporate influence in politics. Talk about the cure being worse than the disease.

  25. OT

    JD Sallanger died today.

  26. Congratulations Jesse! Now you have a fellow traveler!

  27. As for the bullshit ‘judicial activism’ meme that is so hot with the left of late let us do a little thought experiment to clear up the confusion.

    Suppose in an alternative history United States, an Italian-Greco style Syndicalist movement proved to have been successful and was the dominant strain in American politics (sure, we would be a lot poorer, but just go along for a minute). In this history, other corporate bodies, commercial enterprises, for instance, had far less sway in political power and representation than the Syndicalist.

    In a pique to curb the power of the Almighty Workers Combine, congress managed to pass laws abridging the speech of the AWC in around 1974 during a time period where widespread corruption in the AWC briefly weakened their grasp on the Federal Government.

    The Supreme Court takes a case up in 2009, decides in 2010 to overrule the previous law and the precedent that is built into it because the First Amendment does not make distinctions among the actors that get to speak.

    Would the decision in this case be activist? No, no more so than is our current case because the decision is not results based, it is law based. The left protesting the decision is still the activist here because their protest is results based, and the excuses to uphold the precedent here that go beyond alarmist hand wringing are flimsy at best.

    Sorry, that is some cute rhetoric you are using Sotomayorites, but we can still see through it.

      1. Thanks, I didn’t think this thread was still active, so I copied it over to one that seemed more so, in case you come across it again.

  28. Speaking of getting money out of politics;

    June 19, 2008: Obama says no to public financing; McCain throws hissy fit

    Given Barack Obama’s astronomical fundraising numbers, it was only a matter of time before he decided to eschew public funds to finance his campaign. From today’s Times:

    Democrat Barack Obama today rejected public financing for his presidential campaign, changing an earlier stand and becoming the first major party candidate to drop out of the system since it began after the Watergate scandal….

    Early in the primary season, Obama had said he would use public financing if his Republican opponent did. But that was before the presumptive Democratic nominee harnessed the Internet and became a fund-raising powerhouse.

    This move not only makes Obama the first major candidate in more than 30 years to reject public funding (which forbids candidates from raising private funds), but also goes back on his very public indications he would agree to public funding. (See an earlier Times’ editorial admonishing Obama for waffling on his pledge.)…

  29. As a “geek”, Lessig comes up frequently in my experience. He’s a golden-boy on slashdot, for example. These sort of single or minimal goal individuals are dangerous when topics such as these come up because they frequently won’t delve into the true implications of such ideas. “Corps bad. Ban corps Ban!” is an easy meme to pass, easily absorbed by all sorts of people. The fact that it stops people – real people – from engaging in speech never even comes up as a thought. Thus, its up to those who do realize such problems to point them out. Over and over and over. As required to get through the wall of soundbites.

  30. … that world was already corrupted by a Congress dependent upon special interest funding.

    Just like the Mafia is corrupted by the shop keeper who is paying them protection money.

    Our Framers wanted a Congress dependent not upon foreign powers, or upon the President, or upon anything else save upon the People.

    The Framers wanted the House of Representatives dependent on the people. They wanted the Senate dependant on the states. We have way to many people in this country that don’t have a clue what a republic is.

  31. Hello,

    I’d point out that Cato is a conservative think tank. Now-days, “conservative” more or less means “not liberal”.

    “Liberal” means anything opposed to free will (free association, free trade, free speech).

    So you may not feel conservative because of your hip cultural freedom. But since you believe in free will (you do, right?), you are conservative. You can protest all day, but you still are.

    Oh – and I am too. You know, in a hip libertarian sort of way.


    1. And if we choose to view either/or alternatives as simplistic and inaccurate in modern day life, what does that make us?

      While the MSM and other simpletons may like such labels, I do not.

  32. All hail the wisdom of James.

  33. The solution to the problem is to limit campaign contributions to citizens who reside in the respective jurisdiction. If you are not human (a corporation, llc or union) or a citizen (no potential to vote for that candidate) then no campaign contribution.

    1. The Citizen’s United decision has nothing to do with campaign donations.

      Please find out what an issue is about before putting your 2 cents in.

  34. “‘build an understanding’ with libertarians” = talk until we agree that it’s right, just and proper for us to be mugged.

    Pass, thx. K. bai.

  35. I actuall liked this guy when he was arguing against retroactively lengthening copyright terms.

    But now he wants to ammend the constitution so that eggheads like him get veto power on all political advertisement? fuck him.

  36. Hilary is the smartest of them all out their ans she will stun every one in future ..Motorhomes for sale

  37. i completely believe in congress and havs full faith in them as if any one can do some thing for american people it is congress…

  38. I am a true follower of congress as i completely believe in them .if any can do the most for American people it is congress ..
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