Nexus: Chapman's Journal of Law and Public Policy

If you are reading this blog right now you are probably either a member of the Nexus Journal of Law & Public Policy at Chapman University, or perhaps, more fortuitously, you are someone who just happened upon this blog amidst the vast and seemingly infinite space that is the blogosphere, and this blog just happened to be touching upon the very subject that, aside from being nearly blogged to death, you just can't get enough of (maybe in hopes of finding a fresh take?). In either case, that means you are probably already somewhat familiar with the underlying U.S. Supreme Court decision that provides us with the basis for this student blog—the now famous (infamous?), Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). This decision, made back in January 2010, overruled two previously-decided Supreme Court cases, and struck down a provision of the 2002 McCain-Feingold Act in an effort to pave the way for corporations to be able to exercise their previously restricted First Amendment right to use their general treasury funds to produce and broadcast “electioneering communications,” naming federal candidates, within 30 days of a primary and 60 days of a general election.

Like the fortunate person I described above stumbling across our humble blog, I, too, am somewhat of an avid blog-reader, or “surfer” of sorts. I’ll skip from one blog to the next to see what other peoples’ takes are on current events, sports, and pop culture, priding myself at being able to maintain an open mind while considering the multiple, and often conflicting, opinions surrounding each issue. Naturally, more hotly contested and sharply divided issues come to be as such due to opposing sides having very persuasive and, more importantly, equally valid arguments supporting their respective views. In reading about Citizens United, regardless of my own personal views, I kept finding myself thinking, “Man, I can definitely see where the other side is coming from.” In general, the two prevailing views tend to peg Citizens United as either a triumph for the First Amendment and for campaign finance reform as we know it, or as the catalyst that opened the floodgates to more special interests in Washington, diminishing the role of the average American in federal elections.

Despite those differing views, however, I was able to find some commonality and found that most people have at least agreed upon one thing in this whole debate—that money tends to buy results in Congress. Whether Citizens United will “level the playing field” within this type of political climate, as proponents of the decision will argue, or just make bad conditions worst, as opponents of the decision will argue, both sides of the issue will acknowledge (some more passively than others) that the institutional integrity of Congress, as a whole, seems to be at an all time low. To me, this is the real issue at stake. Right now, there is common distrust and frustration in our democratic system amongst Americans, most notably in our Congress. The majority of Americans believe that the government is guided by money, and no longer by the needs of their constituency. Ultimately, this is the problem opponents to the Citizens United decision are concerned about exacerbating, however, I am not sure just how effective “quick-fix” legislation, such as the proposed DISCLOSE Act (the Democrats’ response to Citizens United, increasing “transparency of corporate and special interest money in national political campaigns”) will be at this point in terms of remedying the larger problem at hand. (http://www.opencongress.org/bill/111-h5175). Even if the Citizens United decision had gone the other way, or if current efforts to reverse the decision succeed, at the end of the day, we are still left with a Congress that is dependent on special interest money. Perhaps something bigger needs to be done. But what?

There are definitely some whispers out there of major fundamental institutional reform, or even constitutional amendment. This is undoubtedly extremely bold and progressive thinking, however, such a reform would not easily be implemented and would certainly take a very long time to achieve. But does that necessarily make it a bad idea? In terms of institutional reform, one such suggestion is for Congress to enact the Fair Elections Now Act. According to Lawrence Lessig, a professor of law at Harvard Law School, the Fair Elections Now Act is a “voluntary, opt-in system [that] would create a hybrid of public funding and small dollar contributions, and provide an immediate balance to the deluge of corporate funding that this next election will now see. More importantly, it will give candidates a way to fight that deluge without themselves becoming even more dependent upon private, special interest funding.” (http://www.fixcongressfirst.org/blog). To read more about the bill, visit: http://fairelectionsnow.org/about-bill. However, according to Professor Lessig, enacting the Fair Elections Now Act, and, moreover, moving toward actual major fundamental reform can only be accomplish if Congress is given its own institutional independence. Otherwise, the Supreme Court could, and probably would, strike down such reform efforts. Therefore, Professor Lessig suggests that institutional independence may only be truly achieved by an amendment to the Constitution limiting the Supreme Court’s power over Congress. Ultimately, the goal of the amendment is to have “[m]embers in Congress […] free of any dependency upon lobbyists, or fundraisers, and instead be dependent simply ‘upon the People.’” (http://www.fixcongressfirst.org/blog).

In closing, I am not saying that I necessarily agree with Professor Lessig’s views or suggested remedies, in fact, just the mention of abrogating a Constitutional limitation on any branch of government instinctively causes me to squint with skepticism, however, I am simply pointing out one more, albeit more radical, viewpoint to consider. Having said that, in the spirit of keeping an open mind and considering every angle of an issue, although fundamental change may seem like a daunting, and perhaps futile, undertaking, it is hardly a new concept when viewed in light of our nation’s history. Professor Lessig put it best when he said, “Fundamental change happens when America has been awoken to its need.” And perhaps now we are awake.