In “Republic Lost”, Legal scholar and Harvard Law School professor Lawrence Lessig points out that the Constitution places no restrictions per se on free speech, from whatever source…individuals, unions or corporations. He says “…in my view, the corporate speech actually at issue in the [Citizens United] cas – a video about Hllary Clinton, produced by a nonprofit political corporation – should have been free of regulation by the government.”
However, he asserts that there are two types of corruption: “Venal” exemplified by giving money to a law make or official as a specific quid pro quo, a specific favor, and “Dependence” which is the great problem of our day.
Major funding of campaigns by special interests have made elected officials “dependent” upon lobbyists and the interests they represent for campaign funds to stay in office. Also underpaid elected and appointed officials and staff members understand that plumb jobs await them as lobbyists or with corporations if they favor special interests over the public.
According to Lessig, “Individuals live within a system that demands certain attentions. Certain sensibilities. As those sensibilities are perfected, the representative begins to function on automatic pilot. And when she bends, she’s not bending becaus of a particular interest. She’s bending because of a process she has learned, and perfected. As [Robert] Kaiser puts it, these are ‘ordinary people responding logically to powerful incentives.’ There’s nothing else to do. It isn’t selling out. It is surviving.”
He then attacks the decision on different grounds. He quotes Justice Kennedy as saying “It is in the nature of an elected representative to favor certain policies , and, by necessary corollary, to favor the voters and contributors who support those policies.”
Lessig argues “But by adding the words ‘and contributors’, Kennedy makes the statement not only not obvious, but also, in my view, plaining wrong. The Framers [of the Constitution] did not intend to make representatives dependent upon contributors. Representatives were to be dependent upon voters, or, more generally, ‘on the People alone.’
Lessig concludes “If Congress has the power to restrict speech to limit quid pro quo corruption, and the reasonable appearance of quid pro quo corruption [‘venal corruption’], it ought, in principle at least, to have the power to restrict speech to limit dependence corruption as well…. If Congress can regulate to keep individual legislators from making decisions that are dependent upon venal rather than public interests, it ought to be free to regulate to keep the legislatures as a whole from making decisions based on improper dependencies.”
While much attention has been given to Lessig’s suggestion that the time has come for a Second Constitutional Convention, perhaps his contentions that Congress has the to limit campaign funding should be again put to the test. It could be that the nine Supreme Court justices by now may want to salvage their reputations by allowing Congress to do what otherwise would require a constitutional amendment.
