Larry Lessig's 'Simple' Solution to Excessive Speech


Since the Supreme Court ruled that the First Amendment protects people's freedom to talk about politics, even when they are organized as corporations and even when an election is approaching, Harvard law professor Lawrence Lessig has been tinkering with the Constitution in his legal workshop. Here is the result:

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.

This "simple amendment," he says, will allow Congress to prevent both corporations and citizens of other countries from exercising an "undue influence" on elections. Lessig's amendment is narrower than the Speech for People Amendment, which gives Congress and the states the general authority "to define, regulate, and restrict the spending and other activity of any corporation." But I still see a few problems with his more modest proposal.

To begin with, what is the difference between a permissible "limit" on campaign expenditures and a forbidden "ban"? If Congress said corporations (including nonprofit advocacy groups) may spend up to $10 on political speech near an election, presumably the courts would see that as equivalent to a ban. What about $100 or $1,000? How is Congress going to draw the line between just the right amount of influence and "undue" influence, and to what extent will the courts second-guess that determination, based on what remains of the First Amendment?

More important, what are "campaign expenditures"? I assume that term would cover "express advocacy" (e.g., "Vote for Congressman Douche" or "Vote Against Senator Turd"), allowing Congress to reinstate one of the bans overturned in Citizens United. But the other ban, on messages that simply mention a federal candidate, was supposedly necessary because interest groups could accomplish the same goals through "sham" issue ads that avoided the "magic words" of express advocacy. Even before Citizens United, the Supreme Court had felt constitutionally compelled to narrow the definition of forbidden "electioneering communications" so that a message would be covered only if it was "the functional equivalent of express advocacy" because it was "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." And even then, there was much uncertainty about which messages the Federal Election Commission would deem to be prohibited, which created a chilling effect on speech, a point emphasized in Citizens United.

If "campaign expenditures" do not include anything beyond express advocacy, restrictions on them will be pretty easy to get around. By the same token, the restrictions will not accomplish what Lessig wants. Assuming that the term is construed broadly enough to keep the "influence" of foreigners and corporations from becoming excessive, the amendment will authorize speech restrictions far more sweeping than the ones Congress has chosen to impose so far. It applies to all media, for instance, whereas the ban on electioneering communications covered only radio and TV. And unlike the ban on electioneering communications, Lessig's amendment does not include an exception for media outlets, so it apparently would authorize censorship of books, newspapers, magazines, TV shows, films, and websites produced by corporations (i.e., most of them). Even with a narrow reading of "campaign expenditures," Congress apparently could prevent The New York Times or The Washington Post from endorsing candidates by setting a sufficiently low limit on their spending.

Either Lessig's amendment will have little practical impact, or it will authorize heretofore unimagined levels of censorship. I frankly do not understand why he wants to open this can of worms, probably because I do not share his concern that too much speech by the wrong people has an intolerably corrupting effect on the political process. My general attitude is that everyone—corporations, foreigners, even foreign corporations—should be allowed to have their say, and voters can assess their arguments. Not everyone shares this attitude, which is why we have the First Amendment. For now.