Regulation

Campaign Finance and the Problem of Big Government

A response to Jacob Sullum

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Editor's Note: On November 17, Reason published Jacob Sullum's "The Guy Who Proposed Amending the Constitution to Overturn Citizens United Faults Senators for Trying to Do That," which criticized Harvard law professor Lawrence Lessig's proposal for a campaign finance system of "not just finance limits, but also finance support." Reason invited Lessig to comment and we're happy to continue the discussion by running his response.

Jacob Sullum thinks me inconsistent. Surprise, surprise, I think not. He finds my "disdain for a solution [I] endorsed not long ago…a bit startling." Indeed it would be, if indeed I was "disdaining" the "solution" at issue.

But in my op-ed for The New York Times yesterday, I said this (this time with some emphasis added):

But at some point, Congress has got to muster the courage to say what every sane reformer recognizes: that we won't solve the problem of "big money donors" until Congress begins to say yes. Not just finance limits, but also finance support. Not just ways to restrict, but also ways to enable.

The point is that I am not criticizing the substance of the amendment because I disagree with the idea of limits. I am criticizing the idea of an amendment that only has limits. This isn't "disdain" for limits. It's disdain for the idea that limits alone could work.

Now, as Sullum recognizes, the substance of the limits that I had supported is different from the limits in the amendment recently introduced. I believe that Congress should have the power to limit, but not to ban, independent expenditures. That doesn't mean, as Sullum writes, that my "amendment would authorize Congress to reinstate the restrictions on 'electioneering communications' imposed by…McCain-Feingold." McCain-Feingold banned those expenditures. I believe they should at most be limited. And as I've said again and again, properly interpreted, certainly the non-profit Citizens United should have been entitled to spend as it wanted to spend. That spending has nothing to do with the only justification Congress could have for restricting speech in this context—i.e., corruption, properly interpreted.

Finally, Sullum is kind to grant me "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 I think the "dodging" here is from the libertarian right, not from me. You can't simply assume a libertarian government. You have to show how we can get there. The argument at the core of my book, Republic, Lost: How Money Corrupts Congress and a Plan to Stop It, is that so long as elections are financed by large dollar contributions or independent expenditures, Congress will have an interest in maximizing its "favors to dole out." For if you eliminate the favors, then you weaken the ability to raise campaign funds.

So I get that it feels nice to point to the Epsteinian utopia (for those on the libertarian right) of a world where rent-seeking has been abolished. But even Richard Epstein gets that you can't simply assume that state. You have to describe a strategy for getting to it. That's why Epstein was willing to agree that we need a form of public funding for elections. Without it, the thumb will always be on the scale of bigger, and more intrusive government.

Lawrence Lessig is a professor at Harvard Law School and director of the Edmond J. Safra Foundation Center for Ethics.

Bonus Reason.tv Video: "Nick Gillespie and Lawrence Lessig Talk About the Citizens United Case on Bill Moyers Journal."