HARVARD LAW SCHOOL

L AWRENCE L ESSIG R OY L. F URMAN P ROFESSOR OF L AW 1563 M ASSACHUSETTS A VE C AMBRIDGE M ASSACHUSETTS 02138 T EL . (617) 496-8853 LESSIG @ LAW . HARVARD . EDU

July 25, 2012 The Honorable Senator Richard Blumenthal 702 Hart Senate Office Bldg. Washington, DC 20510 Dear Senator: In the hearing yesterday before the Judiciary Committees subcommittee on The Constitution, Civil Rights and Human Rights, you asked a very astute question that I did not adequately answer. I dont have the transcript of the hearing before me, but the gist of your question was whether there was anything that Congress or a state might do to limit the negative consequences of Citizens United, short of an amendment. My answer to you simply repeated the valuable testimony of Congresswoman Donna Edwards that there were three legs to this stool, disclosure, public funding, and a constitutional amendment to reverse the Courts decision in Citizens United. That answer is correct: those three steps would, in my view, be enough to repair this corrupted system. But as Ive argued before, in fact I believe theres another step that Congress could take before any amendment could be proposed and ratified, that might indeed negate the need for any amendment: Congress could simply enact a statute that severely limited contributions to independent political action committees, and justify that regulation with the theory of dependence corruption outlined in my testimony. That law of course would be immediately challenged. But it is my view that there is a significant chance the Supreme Court would uphold that law, even without reversing Citizens United. The reason is obscured by the clumsiness of the Courts opinion in Citizens United. But strictly speaking, what the Court held in Citizens United was that Congress couldnt ban absolutely political advocacy by corporations. In my view, that conclusion is plainly correct: the only relevant justification for limiting political speech is corruption, and

no one could believe, under any theory of corruption, that the non-profit corporation Citizens United corrupted the political process. But it is a completely separate question whether Congress has the power to regulate the system of independent political action committees. For whether or not they evince corruption in the sense that Justice Kennedy addressed i.e., quid-pro-quo corruption there is no doubt that the system of independent political action committees or Super PACs has contributed to the dependence corruption that I have described in my work, and that Professor Ackerman and I described to the Court in McComish.1 As I explained yesterday, dependence corruption does not allege that any Member of Congress has, or is, engaged in quid pro quo influence peddling. It instead points to the system of campaign funding, and claims (1) that system has created a dependency that (2) conflicts with a dependency upon the People alone, as Federalist 52 described it. It is my view, of course, that even without independent expenditures, the federal system of campaign funding has created a system of dependence corruption, and that the only way to address that corruption is through a system of citizen funded elections, such as the Fair Elections Now Act, or a voucher system such as the one I proposed with the Grant and Franklin Project. But it is also clear that the system of Super PACs that has evolved after Citizens United betrays the same kind of dependence corruption: Any political system in which .000063% of citizens provide over 80% of independent campaign funding is a system in which (1) candidates have become dependent upon independent funders, and (2) those independent funders are not the People. It is my view that Congress could build upon this understanding of corruption, rooted in the understanding of the Framers, and successfully justify a statute that was narrowly tailored to eliminate that form of dependence corruption. Such a statute could, for example, limit the contributions to any independent political action committee to the same size as contributions to any political campaign. And in justifying such a limit, Congress could point to the growing body of evidence that demonstrates absolutely that the system that has evolved has created the clear impression of corruption in the eyes of Americans. That impression is not a mere appearance. From the
1

See Republic, Lost ch1, 14 (2011); Brief of Constitutional Law Scholars, McComish v. Bennett, Supreme Court of the United States, No. 10-238 (2011).

perspective of the Framers, and in the conception of dependence corruption, it is an obvious fact: the reality of independent political action committees has created an obvious dependency within our political system, and that dependency conflicts with a dependency upon the People alone. The Supreme Court has never addressed this theory of corruption. The theory of corruption that was rejected in Citizens United was a theory that held that the government had the power to level the playing field, or equalize speech in the political system. But that theory is logically and practically distinct from the theory of dependence corruption that I have have described. Nothing in the theory of dependence corruption requires that political participation be equal. Dependence corruption instead simply insists that the system not betray a dependence that conflicts with a dependence upon the People alone. That distinct theory of corruption gives Congress a good faith basis for legislating to limit the effect of independent political action committees and it gives the Supreme Court and independent and adequate reason for upholding such legislation without needing to reverse the holding of Citizens United. I would of course be willing to help in whatever way I can to craft such legislation. I apologize again that I was too slow to craft this response yesterday, when you might have had a better opportunity to followup. Thank you for the privilege of testifying before your Committee. I am hopeful there is something you can do that might staunch the spiral of cynicism that the corruption of this system has produced. With respect,

Lawrence Lessig cc: Senator Durbin, Congresswomen Edwards