Censorship

The Guy Who Proposed Amending the Constitution to Overturn Citizens United Faults Senators for Trying to Do That

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In today's New York Times, Harvard law professor Lawrence Lessig proposes yet another solution to money's corrupting impact on politics: more money. Not "a public financing system that forces some to subsidize the speech of others," mind you, but a system of $50 "democracy vouchers" that taxpayers could use to support the candidates of their choice, provided those candidates disdained PAC money and individual contributions of more than $100. Lessig deserves credit for coming up with ever more creative ways of dodging the central problem, which is that big government attracts big money because it has so many favors to dole out. But his disdain for a solution he himself endorsed not long ago is a bit startling:

Nine senators introduced a resolution early this month that would amend the Constitution to overturn the Supreme Court's decisions in Citizens United v. Federal Election Commission (2010) and Buckley v. Valeo (1976). These two cases had restricted Congress's power to limit contributions to political campaigns and independent political expenditures, by both individuals and corporations. Under the amendment, Congress and the states would have the power to limit both contributions and independent expenditures.

"By limiting the influence of big money in politics," said one of the senators, Tom Harkin, an Iowa Democrat, "elections can be more about the voters and their voices, not big money donors and their deep pockets. We need to have a campaign finance structure that limits the influence of the special interests and restores confidence in our democracy."

This proposal is just the latest verse in a very tired song. Once again, the answer to the problem of campaign finance is to "just say no."

Last year, in the wake of Citizens United, Lessig was one of the people singing that song, proposing a constitutional amendment saying, "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." Since corporations are not citizens, he explained, this amendment would authorize Congress to reinstate the restrictions on "electioneering communications" imposed by the Bipartisan Campaign Reform Act, a.k.a. McCain-Feingold. As I pointed out in my December Reason cover story about the reaction to Citizens United, this idea was half-baked at best:

Lessig, who sees himself as a free speech champion, is remarkably cavalier about his amendment's practical impact. When I suggest that it would allow Congress to prevent corporate-owned news outlets from discussing elections, he says, "The Free Press Clause should, if properly interpreted, create immunity for those entities from being regulated so long as they're functioning in a press-like role." But wouldn't his amendment override the Free Press Clause? "That's a good point," he says, "and it might well be important to make sure that nothing is intended to weaken or to draw into question the immunity granted by the First Amendment to the press. But that's certainly not my intent."

Once enacted, of course, the amendment would have to be applied by the courts as written. Assuming there's a media exemption, they would have to decide when an organization is serving a sufficiently "press-like role" to qualify for it. They would also have to decide when a "limit" on "campaign spending," which is authorized by the amendment, is so low that it amounts to a "ban," which is prohibited by the amendment. And depending on how they define "campaign spending," the amendment could either allow sweeping restrictions on freedom of speech or return us to the situation before McCain-Feingold was enacted, when corporations could say what they wanted as long as they avoided the verboten "magic words." In that case, the tremendous effort required to ratify a constitutional amendment would come to naught. "There are lots of ways to get this wrong," Lessig concedes.

Maybe those pitfalls led Lessig to reconsider his support for amending the Constitution to overturn Citizens United, the idea he (correctly) faults Harkin for advocating. If so, good for him. But some mention of his conversion experience would have been appropriate in this context.

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  1. But some mention of his conversion experience would have been appropriate in this context.

    Pundits are people with no past, Jacob. Nothing they said before matters, only now. It’s utterly unfair of you to judge them on previous statements. And it’s not like they’ll be asked about it by the media. What is this, the Spanish Inquisition?

    1. Nobody expected it.

      1. No one does.

        1. Brother, bring out the rack.

  2. Lessig isn’t such an awful libertarian, it’s just that he likes to *engineer* legal solutions, which is really kind of missing the point.

    1. Also, jeez, does the text of his amendment contain a quadruple negative?

      Nothing shall be .. restrict .. limit .. non-(citizen)

  3. Aren’t corporations sometimes treated as citizens for purposes of suing in federal court?

    1. Or paying taxes?

      If they aren’t citizens, they shouldn’t owe a fucking dime.

      1. Great! So immigrants who are not citizens ( green card, H1b, j1, etc) shouldn’t be taxes either??

  4. “But that’s certainly not my intent.”

    Famous
    last
    words…….

    1. has “famous last words” ever been someone’s famous last words?

      1. ‘Oh wow. Oh wow. Oh wow.’

        1. Hey, y’all, watch this!

      2. The words are famous. Not the people who spake them. The most famous are the expressions “JESUS!” and “Oh shit.” No doubt you’ve heard these before.

      3. I doubt anyone uttered “famous last words”. Usually like ‘We’ll kill ’em’ or ‘Oh, shit’.
        But “That’s certainly not my intent” covers all sorts of government projects:
        WOD
        TSA
        WOP
        etc.

  5. “but a system of $50 “democracy vouchers” that taxpayers could use to support the candidates of their choice, provided those candidates disdained PAC money and individual contributions of more than $100.”

    He could call it the “CPA Retirement Act”; lots of CPAs are going to earn enough to retire certifying that.

    1. How about baby-sitting scrips instead? I’m sure power will never find those.

    2. I generally like Lessig despite his flaws, and I like this general idea despite its flaws.

      I would go one further, and let every citizen choose their own representative. These representatives could then vote a total number of votes equal to the number of their constituents. This would solve several problems, such as people “represented” by people who are anathema to them, much of the campaign financing issues, the disconnect between government and the people, etc. To reduce the dangers of the people voting funds to themselves, the Senate should be established on a different model: either returning the selection of senators to the state legislatures, or allowing only net tax payers to select senators.

      http://www.facebook.com/pages/…..1832401918

  6. Democracy vouchers. I like it. It sounds freedomey.

    1. As every Democrap knows, democracy = supreme, and democracy = freedom. Look where it’s brought us!

      1. We Are All Flying Killer Robots.

        1. We Are All Flying Killer Robots.

          Not so. I am a meat popsicle.

      2. Excluding cases where the public isn’t voting like the Establishment Left wants, you mean.

        1. Yeah — in THOSE cases, it’s just Tea-Bagger contamination of the voting block. A (black) guy brought his rifle to a protest in Arizona once, too, by the way, which clearly demonstrates the fact that the square root of pie is 23432535252525, that libertarians are morons, and that it’s all the rubes that are causing the problem with their pesky multinational corporations.

          1. You forgot the part about Bush outsourcing the capture of Bin Laden to the Afghans, which was a metaphor for how much republicans love outsourcing jobs in general.

  7. Democracy vouchers, press like role, what the fuck is this guy professor emeritus of newsspeak?

    God help this country if people like this are any where near positions of authority.

    1. A century too late, pal. Sorry.

      1. Yeah. That is why I am a bit circumspect about the coming collapse of things. It might actually do us some good.

  8. If this assnut needs an example of a corporation, here’s a few:

    American Civil Liberties Union
    Sierra Club
    Planned Parenthood
    AFL-CIO (Teamsters)
    Service Employees International Union
    United Food and Commerical Workers Union
    United Auto Workers
    Center for Science in the Public Interest
    MoveOn.org
    The New York Times
    American Trial Lawyers Association
    People for the Ethical Treatment of Animals
    National Education Association (teachers union)
    American Federation of State, County, and Municipal Workers
    Carpenters and Joiners Union
    Laborers Union
    Communications Workers of America
    American Federation of Teachers
    The Nation Company, L.P.
    Corporation for Public Broadcasting
    Greenpeace USA
    National Public Radio
    American Association of Retired Persons (AARP)

    1. Yeah, but they’re not very corporation-y. They don’t count.

    2. “Assnut”. Very mature.

      These actually are not all corporations. Unions, in particular, are registered separately and have different laws governing them, though in terms of political speech, they have the same limits as corporations.

      And L.P. stands for Limited Partnership, which is not a corporation.

      If you’re going to be a pendant, you should at least get it right.

      1. “These actually are not all corporations. Unions, in particular, are registered separately and have different laws governing them, though in terms of political speech, they have the same limits as corporations.”

        So you’re kind enough to point out a distinction without a difference?
        Thanks.

      2. oh for god’s sake what is this latin school? This is an internet board. I, for one, thought assnut was a really creative epithet.

        1. asinus nucem?

        1. crassic

  9. Would a limitation on coporate speech inlude Unions? They are corporations.

    If you really want less corruption, just pass an Amendment with term limits for all members of Congress. It typically takes a while to corrupt a new Rep or Senator.

    1. So, 10 minute term limits, then?

      Sounds good.

  10. Why is that man’s face so tiny? It’s seriously creeping me out.

    1. It’s not that his face is tiny…it’s that his forehead is HUGE.

      1. Check out the big brain on Larry! With a guy that smart we should just trust what he says. Because he knows.

        1. Big brain, or malformed skull?

          1. He’s Wayne the Main Brain’s brother.

            “Did you hear what I ordered? I’m gonna be farting blood.”

          2. He’s Wayne the Main Brain’s brother.

            “Did you hear what I ordered? I’m gonna be farting blood.”

            1. “For ten points: When traveling at a subsonic speed during the last one hour of hypersleep, which vector of the Romulan nebula will suffer the wrath of the impenetrable quickening? And for extra points, how many wraths till the nearest molton? Be specific, this is a real question.”

              1. The Backstreet Boys.

                1. heller wins!

      2. We call that a five-head.

        1. You Canadians and your strange expressions. Like “five-head” or “Kraft dinner” or “Canada”.

      3. Dude has a fivehead.

  11. I prefer “progressive vouchers”, where women and minorities get $100 to spend while white males are handcuffed to broccoli stands and kicked in the head if they try to say anything.

    1. Confirmed. Tulpa’s an idiot.

      1. No, just looking past the immediate to see where the suggestion leads.

      2. Confirmed. Esteban’s sarcasm detector is broken.

  12. “Citizen’s” didn’t take away limits on contributions to political campaigns.

    1. It also did not contain the statement “The court holds that CORPORASHUNS ER PEEPLE!”

  13. So apparently Pat Sajak is in Winnipeg tonight because he’s a Captials fan and wanted to see the game. WHAT THE FUCK?

  14. The US House of Representatives would work far better if it were filled with representatives picked randomly from people who vote than it does now with career politicians.

    Why do I think this?

    http://jmdugan.posterous.com/r…..esentation

    1. The US House of Representatives would work far better if the 16th and 17th amendments were repealed so the federal budget was apportioned amongst the states by population and senators represented the state legislatures who had to come up with their share.

  15. I’m a long-time Reason reader and a long-time Lessig fan, back from when Lessig was focused mostly on copyright reform.

    I really think there’s a troubling trend of Reason drifting toward sensationalism and character attack and away from honest debate. Would Radley Balko have made such a strawman argument against a generally pretty libertarian-minded scholar as Lessig? Would he have been so unfair about it?

    Come on, Reason, I expect more from you. How about a retraction of this article and a rewrite that at least tries to be fair.

    1. I really think there’s a troubling trend of Reason drifting toward sensationalism and character attack and away from honest debate.

      Are you sure it was ever any other way?

      1. “Are you sure it was ever any other way?”
        Is a dipshit is worth reading?

    2. Point to on the doll where Jacob assassiniated Lessig’s character.

      Was it where he quoted Lessig or highlighted his ideas?

    3. I’m a frequent critic of Reason but this is off-base. Lessig isn’t being strawmanned or misrepresented in any way; he quite publicly advocated for the positions attributed to him.

    4. “Would Radley Balko have made such a strawman argument against a generally pretty libertarian-minded scholar as Lessig?”
      Appeal to authority; are you familiar with the term? Or just not real bright?

    5. Seriously, though, for a magazine called “not criticizing people who are generally on your side”

      1. Man, if he’d worked Somalia in there we could have drank.

        Question: Can Radley Balko be given Postrel status in the drinking game?

        1. My liver votes no

      2. That’s bullshit. That’s how partisans operate, not us.

        And there’s nothing overzealous about this criticism, he’s just pointing out that the guy is changing his story by quoting previous version of story and current version of story.

    6. Has Reason become too shallow and pendantic for you?

      1. The problem is the people who are hanging around.

    7. I like Lessig too, generally speaking. But this idea is pure dangerous statist bullshit and he deserves whatever gets thrown at him.

  16. Sidetrack, but Rachel Maddow was just on and thinks we need to build trains to save our economy. I had not heard that idea before, think it will work? Seems promising. And besides, CHINA has trains and we don’t.

    1. And I see you found it over on the TSA thread:sevo|11.17.11 @ 7:13PM|#

      And just ’cause I can’t see anywhere else for it, there is some good news:
      “House GOP kills high speed rail funding”
      http://blog.sfgate.com/nov05el…..ing/?tsp=1
      That $50B pork-tub that recently ballooned to $98Bn after they found someone who could count relied on Fed money and ‘private investment’.
      Well, they couldn’t find anyone dumb enough in the private sector, including our fave RR magnate and “kick-me” doll, Warren B., to put up a penny and now the House says ‘naaah…”.
      Hell, they’ve probably only blown $25M on lunches with Willy Brown; lets call it sunk costs and forget the whole thing.

      Maddow can pay for it and ride it; screw her.

  17. It’s another Miracle at Mile High

  18. Hello, I’m glad to see this article

    1. How much for a Gay Ronaldo Jersey? I need something to wipe my toilet with.

  19. Why is that man’s face so tiny? It’s seriously creeping me out.

    THIS IS WHY OBAMA-WORSHIPING IVY LAW PROFESSORS WHO TURNED AGAINST LIBERTARIANISM WHEN THEY EXPERIENCED THE GLORY OF SOVIET EASTERN EUROPE FIRST HAND AREN’T LIBERTARIANS

    That picture way underplays how shockingly physically repulsive the dude is in real life. That terrifying little leprechaun-chess-granny face is genetically Photoshop-disastered onto a giraffe-necked hermaphroditic hunchback mutant Jim Norton clone body that appears to have been nourished entirely on Dots and melted cheese.

    1. See, now that’s how you do ad hominem.

  20. If people were serious about campaign finance reform, they would advocate laws that place restrictions on the politicians taking the money, not the people who give the money.

    If you don’t like corporate money going to politicians, then advocate for laws that ban politicians from accepting money from corporations.

  21. Campaign finance vouchers isn’t a bad idea, though.

    1. Except that A) It’s not going to undermine Korporate money in any meaningful way, and B) If I don’t want to donate my money to a candidate, why would I want someone else to donate my money to their candidate in my place?

  22. “”That’s a good point,” he says, “and it might well be important to make sure that nothing is intended to weaken or to draw into question the immunity granted by the First Amendment to the press. But that’s certainly not my intent.”

    Giving in to the idea that the 1st amendment protects a group called “the press” instead of protecting the use of the press is a weakening the 1st amendment. Giving the government to define what qualifies as legitimate “press” is creating a huge loophole for suppressing information.

    1. Giving in to the idea that the 1st amendment protects a group called “the press” instead of protecting the use of the press is a weakening the 1st amendment. Giving the government to define what qualifies as legitimate “press” is creating a huge loophole for suppressing information.

      They see that as a feature, not a bug.

    2. You put your finger on it. These crypto-authoritarians simply cannot conceive of people except as they belong to collectives (“the press” as a class, preferably licensed, v. “the press” as a mechanism used for publishing), the better to give special rights to some, and the jackboot to the others.

  23. This makes a WHOLE lot of sense when you think about it. WOw.

    http://www.real-anon-tools.tk

  24. What the fuck is wrong with this dipshit? Who the hell thinks “Well, I can’t grow the Hitler mustache, so I’ll just go with his glasses.” Didn’t read the post, couldn’t get past the picture. I can’t imagine anyone who looks that smug and constipated having anything interesting to say. He looks like John Clayton with Down’s.

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