A Call for a Convention

Original Link: http://www.huffingtonpost.com/lawrence-lessig/a-call-for-a-convention_b_448762.html

By Lawrence Lessig

The Supreme Court's decision in Citizens United has sparked a furious debate across the Nation. At least a half a dozen organizations, and just as many Members of Congress, are now pushing for a constitutional amendment to overturn it. Others are frantically trying to convince the nation that the speech of Exxon is as central to democracy as the protest of Rosa Parks.

But in my view, the greatest danger of Citizens United is distraction. There are fundamental problems with America's democracy. An overly diverse speech market is not high on that list. And while the decision in Citizens United -- if things stay as they are -- could create a critical threat to American democracy, that is not because corporations get to speak. The danger in this decision is that it will further cement the corrupting dependency on private funding of public campaigns that already infects our Congress. The problem in our democracy is not diversity; the problem is a Congress dependent upon the fundraisers. The problem is not corporate speech. The problem is the fundraising Congress.

For let us not forget: On the day before the Supreme Court decided Citizens United, we already had a problem with democracy in America. Already most Americans recognized that the Framers' ideal of a Congress "dependent upon the People" had become a slogan, not a reality. Already we had seen the devastating consequences of a Congress that seemed to care more about how it raises campaign dollars than how it enacts policy sense. Already democracy had failed.

Our task then was the same as it is now: to fix this fundamental flaw. Reversing Citizens United alone won't do that. Instead, we must begin the long and difficult process to restore independence to American democracy. That won't happen by Internet petition alone. It will require a long and serious national debate which begins by expressing respect to all sides, and inviting all sides to participate.

Now many of us -- and I'm the first on this list -- believe we can begin this process with an obvious first step first: with Congress enacting the Fair Elections Now Act, now. That statute would fundamentally change the economy of influence in Washington. By giving members an option to rely upon small dollar contributions alone (maxed at $100 a citizen), we could at least create the possibility that Congress would be filled with Members whose integrity no one could doubt. That's not a promise that Congress would get everything right. But it is the assurance that when they get things wrong, Americans won't have to believe they betrayed principle or the public will because of money.

But there is a real and fair question about whether this Congress could pass such fundamental reform. More importantly, the Supreme Court's recent eagerness to overthrow any campaign finance regulation means there's a real and fair question whether even this reform would survive constitutional review.

Both questions have rightly led many to the conclusion that we need to think about these questions in a more fundamental way -- that even if we get the Fair Elections Now Act, we need to begin a process to reform our fundamental law to assure that that change, or any change, sticks.

Thus, a gaggle of well-meaning souls, including, most prominently, MoveOn.org, have begun the process of organizing to get Congress to propose a constitutional amendment to overturn Citizens United, believing apparently that this single fundamental change is necessary and sufficient.

I agree that the Constitution needs to be reformed, in the sense that its founding principles need to be strengthened. But pushing Congress to propose an amendment overturning Citizens United now is, in my view, both a substantive and procedural mistake.

The substantive point I've already sketched: Reversing Citizens United is not enough. We need a more fundamental change to secure to Congress the power to protect its own independence -- meaning independence from special interests, and a dependence upon the people. Silencing corporations is neither necessary or sufficient to that objective.

The procedural point is more fundamental, and comes in two parts: First, no one should distract Congress from the one good thing it could do right now -- pass the Fair Elections Now Act. That would be a huge victory; it is a possible victory; and we are defeating the cause of reform if we do anything that jeopardizes that possible win.

And second, we all need to recognize that America is uncertain about how best to fix our government right now. From the Tea Party Right to the Progressive Left, there is agreement that something fundamental has gone wrong. But I believe that our frustrations share a common source -- an exasperation with the broken state of our political system -- even as we disagree passionately on what to do about it.

The solution to that disagreement is democracy. We should begin the long discussion about how best to reform our democracy, to restore its commitment to liberty and a Republic, by beginning a process to amend the Constitution through the one path the Framers gave us that has not yet been taken -- a Convention.

For the Framers imagined a time when the government might be captured. And they created a mechanism to respond to that capture. If 2/3ds of the legislatures of the states demand it, Congress must call a convention. That convention then must meet and deliberate about amendments to the constitution. If it agrees, it then proposes amendments to the states. 3/4ths of the states must then ratify any amendment before becomes law. Thus, 12 states of 50 have the power to veto any change, meaning no change could happen unless it appealed to a solid group of Red States and a solid group of Blue.

We are, today, beginning the process to call a convention. We have our own view about the amendment that our constitution needs. You can read about that amendment here. But this effort will require a wide range of organized citizens to push their states to enact the resolution calling for a convention.

Join us in this. Add your name and your voice to the call. We'll let you know as soon as the framework for this movement gets launched.