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Citizens United Ruling Presents Problems Too Important To Ignore

Apr 18, 2010 | Updated May 25, 2011

My friend and colleague Larry Lessig is a brilliant and creative thinker, but there are times when a dose of realism is needed to leaven the spirit of innovation. Lessig is right about the importance of the Supreme Court's recent decision in Citizens United v. FEC and about the dangers to democracy of the relentless corporate march in which that decision represents another regressive step. But he is wrong to dismiss as unworthy of serious consideration political responses that have the vice of being incomplete but the virtue of being potentially attainable.

When Lessig asserts that the Supreme Court probably will not "look favorably at a broad ban on government contractors speaking," he fails to consider the arguments that have led the Court to uphold closely analogous political speech restrictions designed to prevent pay-to-play pressures on government employees who might want to participate actively in campaign electioneering. And when Lessig dismisses as "completely unclear how foreigners get regulated under the Court's reasoning," he suddenly treats as "reasoning" what he elsewhere dismisses as barely disguised advocacy and fails to acknowledge the Court's undoubtedly incoherent but nonetheless real insistence that its decision left undisturbed the existing limits on political participation by foreign corporations -- limits that could readily be expanded.

In my testimony before the House Judiciary Committee this Feb. 3, I explained in some detail why those avenues of response to the Court's unfortunate ruling, and others involving new protections for dissenting shareholders, are very much worth trying.

I'd be the first to concede that each such response would be merely incremental. And I'd concede that, even together, the responses I favor wouldn't undo all the damage the Court has done over the years by essentially equating money with speech, by increasingly treating corporations as mere "associations" of individuals, and by equating for-profit business corporations with corporations whose very purpose is political advocacy. But this isn't an area where we can afford to let the perfect remain the enemy of the good. It makes great copy to claim that nothing short of reform too radical to be attainable need be taken seriously. But the problems presented by the Citizens United ruling are too important for those who lament that decision to let things get worse in the comforting but misleading hope that, if we just let things get bad enough, the people will arise from their slumber and join hands to effect radical improvement.