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Watch Out Plutocrats, the Progressive Pro-Democracy Movement Is Savvy and Gearing Up to Take on Citizens United

There's a sophisticated pushback against corporate power in the works.

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But while the constitutional strategy unfolds, Lessig and other legal celebrities, notably Stephen Colbert’s election lawyer, the liberal Republican and former Federal Election Commission Chair, Trevor Potter, have developed what they call the “ American Anti-Corruption Act” to focus on what Congress and the federal government could now do to change the way fundraising shapes American democracy and political culture.

“I don’t think any of us up here see this as a debate between a constitutional option and legislative options, or between various legislative options,” Potter said. “As we talk about the need for a constitutional amendment, which would change the entire landscape, we have to recognize that that is a long process. The point of the American Anti-Corruption Act was to show that it is possible to change the process in really significant ways that would revolutionize Washington—now.”

“That’s not to say we shouldn’t be looking to the amendment and working for an amendment,” he continued, opening his talk. “But to say that there are a lot of things we can do—realistically, perhaps more than Congress will ever do—but that could be done constitutionally if we had enough pressure on Congress and the will to do it.” 

Potter said the reform package he helped draft had input from across the political spectrum and from repentant political insiders: “Some Tea Party folks, some Occupy Wall Street folks, from some convicted felons—that would be Jack Abramoff, who basically said, ‘Stop me before I kill or lobby again.’ That’s important, because Jack can say, ‘Look, I know how it’s done. And when we were talking about the drafting, he can say, ‘That doesn’t go far enough, because I can figure out how to get around that.’”

This proposal tackles conflicts of interest, which the Supreme Court recognized is a basis for regulating campaigns, Potter said. The foremost conflict is between people who are funding campaigns or lobbying, and a candidate or official who needs campaign money and is voting on bills. “Whether is it a shakedown by the member or an attempt to buy results by the lobbyist, you end up at the same place, which is they are dependent on the lobbyist, or the people who hire the lobbyist and that world, rather than everyone else.”  

The first part of this proposal would prevent members of Congress from raising money from people who lobby them. Then, lobbyists could only make small donations—$500—to protect their First Amendment rights, but cannot round up checks for officeholders. The people who hire lobbyists can’t do that either. That would change how Congress raises money. Further, members of Congress could not become lobbyists for five years after leaving office, which would end the so-called revolving door. Today, about half of Congress become lobbyists after losing re-election or resigning in office. “Capitol Hill has become a farm league for [Washington’s] K Street,” Lessig said.  

On the campaign finance side, it would create an alternative way to finance elections—in contrast to the 2012 campaign where one-third of 1 percent of all Americans gave $200 to federal campaigns and political parties. Here, the other 99 percent would get an annual tax credit of $100 that they could give to candidates or to other political committees—in exchange for the recipients agreeing to cap donations from single contributors. That way of paying for public financing appeals to Republicans, Potter said. “If we can get here, this changes the system more than anything else.” Indeed, of the 24 states that have a form of public financing, the red states do it through a tax check-off.