Who and What Can Possibly Save American Democracy? 4 Key Questions
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Baucus called it “the only way to solve this.” Leahy said, “Constitutional remedies have to be considered.” Udall said, “James Madison argued that the U.S. Constitution should be amended only on ‘great and extraordinary occasions.’ I believe we have reached one of those occasions.” Sanders said, “We are well on our way to seeing our great country move toward an oligarchic form of government, where virtually all of the economic and political power rest with a handful of very wealthy families.”
The most interesting questions, outside occasional discussions about how inconsistent and imperious the Supreme Court was in Citizens United and other recent campaign finance cases, concerned an assertion by Harvard’s Lessig, who told the panel that Americans did not trust Congress to propose a solution to fix the vast problem of how money has corrupted elections and lawmaking.
“You have evolved a government that is dependent upon the people and dependent upon the funders,” he said. “And that different and conflicting dependence is a corruption of our framers’ design now made radically worse by the errors of Citizens United. But in responding to those errors, please, do not lose sight of one critical fact: On January 20, 2010, the day before Citizens United was decided, our democracy was already broken. Citizens United may have shocked the body. But the body was already cold. And any response to Citizens United must also respond to that more fundamental corruption.”
“Now how you do that will be as important as what you do,” Lessig said, without addressing what any of the proposals would do.
“For America’s cynicism about this government, whether fair or not, is too profound to imagine that this Congress alone could craft a response that would earn the confidence of the American people," he continued. "Instead, this Congress needs to find a process that could discover the right reforms that itself could earn the trust of the American people. That process should not be dominated by politicians or law professors, indeed, [or] by any of the professional institutions of American government. It should be dominated instead by the people.”
Lessig suggested that the Committee convene four super-sized, grand jury-like panels—one in each corner of the country—where citizens would be randomly chosen and paid to meet and discuss all the amendment proposals and suggest the best remedies for the Judiciary Committee. It wouldn’t be the same as the formal convention envisioned under the Constitution’s Article 5 that could revise the actual Constitution, but would create debate, discussion, non-binding suggestions and legitimacy for the effort. He described the panels as “a civic jury… convened to advise Congress about the best means for reform.”
Lessig’s “citizen convention” plan might be described as the "new kid on the block" among many well-known reform proposals. Several senators seemed intrigued by it—or, at least compared to proposals put forth by colleagues, asked questions about it, even though it was premised on Congress's inability to produce an amendment that the public would support.
But for people who have worked on campaign finance reform for years, the prospect of more delays, pushing initial deliberations past the 2012 presidential election, and lack of any detailed discussion on what the various proposals would mean for various interests is frustrating. The different amendment proposals are not hard to understand. They break down along straightforward lines. For example, does it affect the Koch brothers or not? Or wealthy candidates? Does it affect non-profit corporations? Or labor unions? What kinds of corporations would be affected? Would it affect more than their speech rights? And what words would allow Congress and the states to regulate all campaign cash—fixing the root problem created by the Supreme Court?