Webinar Notes - Sen. Elizabeth Warren & Prof. Lawrence Lessig Discuss SCOTUS/Campaign Finance and more

[Bruce Preville]

Hi All,

See below notes from Nicholas Dewar of the SF Rootstrikers, with a few clarifications from me.

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Bruce
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Bruce Preville

San Jose CA Rootstrikers

408 866-3333

What we have now is the Conquest Game:  a zero sum, winner-take-all game where those who control money and assets get to define public policy and direct future wealth toward themselves.  We need a new societal game, the Cooperation Game, where success is measured by the increasing quality of life for all people.

The void created by smaller government is not often filled by liberty - David Rothkopf

"There are a thousand hacking at the branches of evil to every one who is striking at the root."  - Thoreau

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I heard the last few minutes of Sen. Warren's talk, then Larry Lessig's presentation and a brief Q&A. Warren placed McCutcheon v. FEC (which SCOTUS will consider next month) in the context of a series of court decisions (incl. Citizens United) that suggests how SCOTUS is becoming increasingly a "subsidiary of the Chamber of Commerce"

Lessig described how the Citizens United decision depended on the court's understanding that political "corruption"  only occurs when an individual makes a Quid Pro Quo (QPQ) payment to a politician, dollars for votes. McCutcheon v. FEC must also consider corruption, and he wondered if there are other sorts of corruption (other than QPQ) that SCOTUS should consider. 

He and some researchers have looked through all documents related to discussions by the framers of the Constitution to see what sort of "corruption" was considered by the framers. So many of the conservative Justices are "originalists" that Lessig hopes that this sort of analysis may be considered significant by them. On the basis of this research he prepared this amicus curiae brief.

Each instance of the word "corruption" in these documents has been noted and categorized by Lessig et al. and is available in this Tumblr  . Incidentally, this is the first time a Tumblr has been included in a SCOTUS brief (typical Lessig!). This analysis found 325 instances of use of the word "corruption" by the framers.

1. The use of QPQ by individuals was referred to in only 1.6% of the "corruption" references. 
2. 43% of the references were cases where framers spoke of individuals being corrupt. 57% of cases were about institutional corruption. 

3. Especially notable: 9% of cases were "improper dependence" of politicians on an institution. So the framers referred to "dependence corruption" more than 5 times as frequently as they referred to individual QPQ corruption.

 

Then Lessig summarized what I've heard before at e.g. his TED talk, vis:
Instead of being dependent only on the people, as originally intended, elected representatives have become dependent upon their most significant funders. The funders represent a tiny slice of the 1%: 0.26% gave $200 or more, 0.01% gave at least $10,000, just 132 Americans gave 60% of the superpac $$. 
This dependence on funders is a corruption. It's not criminal etc. It's decent people forced into this dependency. It's a corruption of the dependence specified by the framers: congress should depend on the people alone - not on the funders. 
Lessig reported that a study in MT found that the removal of contribution limits changed the business model of fund raising. States with limits on corporate contributions saw 40% of contributions from the people, instead of 20% in states with no limit to corporate contributions. So, this suggests that aggregate limits reduce "dependence corruption". 

Lessig concluded that, if the original meaning of corruption (per the framers of the constitution) includes "dependence corruption", a consistent originalist Justice should deal with dependence corruption as well as QPQ corruption when considering McCutcheon v FEC.  He hopes they will state a decision on dependence corruption in their decision on this case.

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