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

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.