By Michael Fullilove |
Removing aggregate contribution limits would only increase the level of corruption within our government – at least as "corruption" would have been understood by the Framers of our Constitution.
The Framers gave us a "republic." But by a "republic," they meant a representative democracy. And by a representative democracy, they meant a government with a branch (Congress) that would be, as Federalist 52 puts it, "dependent on the People alone."
Focus on that word "alone": the Framers meant an exclusive dependence, one that would keep Congress focused on its number one job: representing "the People." And not one faction of the people over another: all the people. As Madison said in Federalist 57, "not the rich, more than the poor."
Under our current system of campaign finance, however, Congress has evolved a different dependence. Not upon "the People alone," but instead upon "the Funders" of campaigns. Members spend anywhere between 30 percent and 70 percent of their time raising money to fund their campaigns. But they raise that money from a tiny fraction of the 1 percent. No more than 150,000 Americans give even the maximum amount allowed to any one candidate. These are the contributors that members are most focused on, which means our Congress is dependent upon about .05 percent of America – one twentieth of one percent – to fund their campaigns.
This is a dependence. But it is a different and conflicting dependence from a "dependence on the People alone," because this .05 percent of America is not in any sense representative of America. Instead, our Congress has permitted a dependence to develop that corrupts the one intended by our framers. They have permitted, in other words, a kind of "dependence corruption" to evolve.
Removing aggregate limits would only make this problem worse. As evidence from the states shows, when you remove limits on contributions, the business model of fundraising changes: candidates focus on even larger contributors, and hence the number of contributors falls. An even smaller percentage of America would thus become the relevant funders of campaigns, meaning the extent of this corruption would increase.
If Congress has the power to attack "corruption" – at least as that term was understood originally – then Congress should have the power to limit aggregate contributions. We have a long way to go to restore Madison's conception of a Congress "dependent on the People alone," and "not the rich, more than the poor." But the court – and especially the "originalists" on the court – should certainly permit the small step of limiting aggregate contributions to reduce dependence corruption.
About Lawrence Lessig Professor of Law and Leadership at Harvard Law School
Liz Kennedy Counsel at Demos
Blair Bowie Democracy Advocate at the U.S. Public Interest Research Group
Lawrence Norden Deputy Director of the Democracy Program at the Brennan Center for Justice at New York University
Hans A. Von Spakovsky Senior Legal Fellow at the Heritage Foundation
Rick Esenberg President and General Counsel of the Wisconsin Institute for Law and Liberty