I have posted this draft on SSRN. Here is the abstract:
I greatly appreciate Professor Lawrence Lessig’s interest in and passion about limiting the corrosive role of money in American politics. Lessig is an academic rock star, a great online and social media presence who draws large crowds for his multimedia presentations wherever he goes to talk about reforming our campaign finance system. He has done more to educate the general public about these issues than anyone else (aside from possibly Stephen Colbert), certainly more than those of us, like me, who have spent our entire careers writing about campaign finance issues.
And yet I have unease about a central premise of Lessig’s argument: that “dependence corruption,” the government interest he advances to support the constitutionality of his proposed campaign finance reforms, is analytically distinct from an interest in promoting political equality. Lessig’s argument is crucial to the constitutionality of his program before the current Supreme Court, which has rejected political equality as a permissible interest to support campaign finance regulation. I recently discussed my concerns about his dependence corruption argument in a Harvard Law Review book review of Lessig’s new book, Republic, Lost, and Lessig has responded with a defense in a Harvard Law Review Online Reply and in his public presentations.
My continuing concern is not primarily with Lessig’s prediction that a current majority of the Supreme Court could well accept the dependence corruption rationale to justify new restrictions, such as contribution limits to super PACs — although I do think he is wrong in that prediction and that in his role as campaign finance reform zealot he gives false hope to those who think the Court would soon effectively overturn Citizens United v. FEC using his analysis. Rather, Lessig’s dependence corruption argument encourages fuzzy thinking about the political equality rationale at a time when we need clear thinking about, and defenses of, political equality arguments. There could well be a time within the next decade when a more liberal Supreme Court majority may consider overturning recent precedent and allowing more regulation. By being more precise about what is at stake with such regulation, and the potential costs to free expression, supporters of reasonable campaign finance regulation will be better positioned to defend a new set of laws. In the end, the debate over dependence corruption helps elucidate the best and worst types of political equality arguments to advance to a future Supreme Court and American public.