Professor Lawrence Lessig's Essay on the Need for a Constitutional Amendment

Last week’s decision in Citizens United was an important moment in the history of our democracy. Much more important, however, is how we respond.

There was little surprise that the Court would reverse itself on the question whether government can ban independent political expenditures by corporations. The hints by this Supreme Court have been clear enough, and this case was just the latest in a string of decisions by the Court cutting back on Congress’s power to secure fair elections.

The surprise, and in my view, real cause for concern, however, was how little weight the Court gave to the central purpose of any fair election law: the purpose to protect the institutional integrity of the democratic process. That value seemed invisible to this Court, as if we didn’t now live in a democracy in which the vast majority has lost faith in their government.

We need to trust our democracy. We need to believe that its representatives are guided if not by truth, then at least by what their constituents want. Our Framers gave us a Republic in which the government was to be “dependent,” as the Federalist Papers put it, “upon the People.” They were obsessed with assuring that the government be independent of anything else.

But the vast majority of Americans do not believe that their government is “dependent upon the People.” The vast majority believes the government is dependent upon money. Most believe “money buys results in Congress.” Most therefore doubt the integrity of this the most important democratic institution established by our Framers.

This is a corruption — a corruption of the very institution of our democracy. And this corruption makes it harder for both Reagan Republicans and Progressive Democrats to achieve the substantive ends that each seeks. For 20 out of the last 29 years, we’ve had conservative Republican Presidents. But Reagan Republicans have yet to see the size of government shrink, or the tax code simplified — because Congress has no interest in smaller government or simpler taxes, since both would make it harder to raise campaign funds. Likewise, despite the election of Barack Obama with a super-majority Democratic Congress, Progressive Democrats have watched with disgust as every substantive reform of this administration has been stymied by special interests expert in preserving the status quo.

There is a great frustration in our country today. Rightfully so. The Obama voters whose frustration was manifest as hopefulness in the last election, and the Tea Partiers whose frustration has been manifest as resistance ever since, now share a feeling that has no partisan nature: that decisions are no longer made through the electoral process in America. That change occurs elsewhere, on another axis, its direction controlled by a fortunate few who are neither dependent upon, nor accountable to “the People.”

Our single common purpose must be to end this corruption. No side in this debate has the right to demand rules that benefit them against the other. But all sides need to recognize that this corruption is destroying American democracy. We need a system that the people trust — that gives the people a reason to participate, and convinces them that their participation is rewarded by the substantive policies that they have pursued.

Long before Citizens United, America had already lost faith in the integrity of its government. Had the other side prevailed, and the case come out the other way, we would have lost faith still. That’s because even without the freedom of corporations to spend money on political speech during the last days of a election, the campaigns of Republicans and Democrats alike had become dependent upon the money that the corporations, unions and other special interests could supply. Whether through PACs, or large contributions bundled by lobbyists, already these special interests have a powerful control over how Washington works. They didn’t need this special gift from the Supreme Court.

We gain nothing if the response to Citizens United succeeds simply in reversing its effect. There are many such proposals floating about in Congress now — most prominently, one that would ban entities with government contracts (i.e., every big business) from spending corporate money on political speech. Such reforms give us nothing because they simply return us to the corrupted Congress that we already have. We need more than a return to the status quo before Thursday. The status quo before Thursday was the problem.

Instead, we urgently need a reform movement to act in two complementing ways — first, to enact the first step of the reforms we need to restore our democracy, and second, to assure that those reforms not be vulnerable to the increasing activism of this Supreme Court.

First, we need Congress to enact the Fair Elections Now Act — now. This voluntary, opt-in system would create a hybrid of public funding and small dollar contributions, and provide an immediate balance to the deluge of corporate funding that this next election will now see. More importantly, it will give candidates a way to fight that deluge without themselves becoming even more dependent upon private, special interest funding. No other reform — including reforms that try effectively to reverse Citizens United — could be as important just now. No other reform should distract us from pushing strongly to get Congress to pass this statute now.

But after much reflection, I now believe that this first step is not enough. We can’t build a movement to secure fundamental reform with the constant fear that an activist Supreme Court will strike that reform down. Instead, we must establish clearly and without question the power in Congress to preserve its own institutional independence. And we can only do that by effecting a change to our fundamental charter — an amendment to the Constitution.

Such an amendment must secure not one side in a political debate against the other. It must instead give Congress the power to support its own elections in a manner that secures its own independence. Members in Congress must be, and must seem to Americans to be, free of any dependency upon lobbyists, or fundraisers, and instead be dependent simply “upon the People.” We need an amendment that gives Congress the power to secure this independence.

And we must start the process to make this change happen now. And as Congress is hopelessly stalemated, our focus should not be upon a useless effort to get that corrupted body to act. It must instead be to build the movement to petition the states to call for a convention to propose amendments to the Constitution. Any such proposal must still, like an amendment proposed by Congress, be ratified by 38 states. But in the process of building this movement, we can spread the understanding of why this change is urgently needed, and how we can bring it about.

Passing an amendment will not, of course, be easy. But it will certainly be easier than any number of other moments when Americans have responded to political need with bold action. None of us will need to risk our lives to secure this democracy — as our Framers did, as the soldiers fighting for the Union did, as the greatest generation did defending America against tyranny. But we who inherit their democracy must at least be willing to suffer the burden necessary to get Americans to act. Fundamental change happens when America has been awoken to its need. From the rallies of the Tea Party, to the frustration of those in the majority in the last presidential election, America is now awake.

Never in our lifetime has our democracy faced such a threat. Quick-fix bandaids are not its remedy. We need a movement that commits to put aside our own particular policy favorites and recognize that regardless of our differences, we need a democracy we all can believe in.

We don’t believe in this democracy now. We don’t believe in this Congress. We need to restore the integrity of Congress so that we can believe once again in this democracy. But Congress reforming Congress — through the very process we all know has been hopelessly corrupted — simply won’t be enough to erase the stain that blights our politics now. We need an amendment that speaks to the fundamental commitment of Americans — to this Republic, and its democracy.

We will have one. Join us.