For years, Harvard Professor Lawrence Lessig has served as one of the most outspoken proponents of so-called campaign finance reform, and certainly the most gimmicky. Whether it’s a TED talk, a march in New Hampshire, or a Super PAC “to end Super PACs”, Lessig will do anything to prompt Americans to demand fundamental change in election law. So it is no surprise that Lessig is now exploring a “referendum” campaign for President of the United States. This time, Lessig’s gimmick is that if he wins the Presidency he will serve until Congress passes the Citizen Equality Act of 2017, and then resign. What is surprising, particularly for the campaign finance community, is that currently Lessig’s proposed statute offers next to no content whatsoever, making the would-be campaign his most bombastic effort yet.
The Citizen Equality Act of 2017 will have three parts, the first two focusing on voting rights and voter districts. The campaign finance provision of “the Act” is, so far, this:
Lessig does not link to the actual text of the proposed bills that he intends to blend, but they can be found here: the Government by the People Act (GBTP) and the American Anti-Corruption Act (AACA), respectively. Despite Lessig’s claims that we merely need to “pull together a package” to create this proposal, one need look no further than the AACA to see there are a number of provisions in the model bill that go well beyond voter vouchers and lobbying restrictions. Voters and contributors alike deserve to know which parts of the package will be part of the hybrid.
The AACA is model legislation and is approaching its fourth birthday. It is still a prominent feature at represent.us—where they take great pride in local efforts like passing some kind of AACA in Tallahassee—but some of its proponents have moved on. Trevor Potter, for example, along with the Campaign Legal Center that he leads, more recently played up the Restoring Integrity to America’s Elections Act, which unlike the AACA was actually introduced in Congress and includes provisions that parallel parts of the other bill as well. The AACA model bill proposes some changes that, if they could even find support in Congress, would probably not pass constitutional muster. For example, Provision 4 of the AACA calls for Congress to place the same contribution limits on Super PACs, which do not give money to candidates, as the law has on traditional PACs, which do. This is a nearly laughable end-run around the Citizens United case that would be struck down and likely not even reviewed by the current Supreme Court. Provision 7 of the AACA proposes a detailed and dastardly coordination standard that makes Democracy 21’s model anti-coordination bill seem tame. Bob Bauer, former White House counsel to President Obama, has also expressed skepticism about this provision. Provision 11 calls for an overhaul of the Federal Election Commission and certain enforcement practices at the agency, including the institution of random audits for political committees. That would end well. These are just some of the provisions of the AACA that, if enacted, would be challenged for violating free speech, with a good likelihood of success. It is important for Professor Lessig to clarify whether these provisions will join his Citizen Equality Act hybrid.
The AACA’s constitutional concerns are only part of the problem with Lessig’s scant description of the Citizen Equality Act. The AACA’s references to other statutes raise even more questions. Provision 10 calls for passage of the DISCLOSE Act, by far the most successful of the reformers’ bills introduced in Congress in recent years but which, nevertheless, has not passed. The American Civil Liberties Union has provided some of the best, continuous criticism of numerous parts of DISCLOSE. Provision 11 of the AACA supports the Public Corruption Prosecution Improvements Act, a particularly draconian bill that has also been introduced several times to no avail. This Public Corruption bill would also, I suspect, have constitutional issues in light of recent court decisions. As a hybrid including the AACA, will Lessig’s Citizen Equality Act also incorporate provisions of DISCLOSE and Public Corruption Prosecution Improvements, too?
Even the parts of the AACA Lessig supports incorporating into the Citizen Equality Act are far from political slam dunks. In Provision 6, the proposed allocation for the AACA’s “Tax Rebates” for voters to give $100 of their choice to candidates or political committees is up to $7.5 billion. The current public financing system offered presidential candidates in 2012 $91.2 million apiecemillion apiece. While other reformers gawk at what might be $5 billion in spending on the 2016 elections, the AACA would up this number by 50% without, despite its claim otherwise, curbing the Super PAC spending that accounts for such great increases. Even if Lessig draws more from the voucher model in the GBTP instead, there is still a lot of public money to appropriate. Finally, as much as everyone draws a skeptical eye to the revolving door between government and the private sector, particularly between Congress and K Street, the AACA’s 5-year prohibition on members of Congress joining lobbying firms (Provision 3) may also be subject to constitutional challenge. Even former legislators don’t just lose their right to petition the government for half a decade just because they were part of it.
Others have rightly questioned Professor Lessig’s argument that after enacting “citizen equality” other progressive reforms—from gun control to climate control—will be feasible. This criticism is amplified since we simply don’t yet know how, exactly, Professor Lessig proposes to resolve this equality problem in the first place. For now, Lessig’s is but the latest seriously unserious proposal to be made in campaign finance, but it crosses the line into seriously silly because Lessig is contemplating a run for President of the United States for the sole purpose of passing a bill that is not actually written (or, at least, packaged) yet.
On the other hand, if this hybrid bill is already floating around somewhere it would be appalling for Lessig to not provide the details publicly while attempting to raise $1 million in an effort to pass it.