Hope and Public Financing

I agree with Joe (see this post a few days ago) that Lessig's presentation is worth watching, and raises some fascinating issues. Lessig uses three areas of policymaking--broadband, cybersecurity, and copyright--to demonstrate how the legislative process is fundamentally broken. Lessig's fundamental point is that Congress is no longer run "for the people," but for special interests. Certainly not breaking news, but a point that cannot be highlighted enough.

But what to do about it? Joe notes that Lessig seems to be promoting a public campaign financing bill through the group Fix Congress First. I have not yet looked at the specific bill that they are proposing, but wanted to share my quick take on whether the concept of public financing is viable in light of the current Supreme Court composition. (I would love to provide a more detailed discussion down the road, if time ever permits.)

There have been two important Supreme Court rulings this term that bear upon this question. First, in Citizens United v. Federal Election Commission, the Court struck down previous limits on corporate independent expenditures. According to the Court, the concerns about corruption (or the appearance of corruption) are not sufficient to justify such a far-reaching ban on political speech. Furthermore, the Court held that First Amendment protections extend equally to corporations as to individuals. Importantly, the decision does not affect bans on direct contributions to candidates--although that may prove to be a distinction without a difference.

The second ruling, which has received much less attention, is an unsigned order the Court released late in the term involving Arizona's public financing program. The basic issue in that case is whether it is unconstitutional to provide additional matching funds to candidates who participate in the voluntary public financing system when opponents spend above a certain amount. The Ninth Circuit held that Arizona's system was constitutional, but the Supreme Court enjoined Arizona from providing any such matching funds until it has an opportunity to hear the case next term (note that the parties have not even asked the Court to hear the case yet, but the Court's order is a pretty clear indication that it will take the case.)

As I read the current jurisprudence, I don't think the Supreme Court is likely to declare public financing unconstitutional, but that approach would be completely ineffective without some restriction on private campaign financing or some other mechanism (such as Arizona's matching funds approach) to make the public financing scheme a meaningful option for those who choose to participate. In other words, public financing is a solution without any teeth if candidates can opt out of the program and do better through acceptance of individual and corporate funding--but the Supreme Court is likely to strike down any rules designed to encourage public financing over private campaign funding.

In my view, any solution has to be found in the masses. I agree with Joe that it seems like a very hard thing to do, but I am not sure there is any way around it. I like the way that Lessig frames the issue--we have to get at the root of the problem if we expect to make any significant policy changes in this country--but I think he does not dig deeply enough. I would trace the problems back to the poor understanding that most Americans have of the major policy debates going on in the country, which is due in part to the laziness of the people and also to the corporate media.