Republic Still in Danger?

of introducing uh my friend um Larry leig

um there are uh a lot of people in the eval Academy who are very smart and who

have spectacular uh resumés including Larry's case having cler for justice

scolia um there are not that many people in the legal Academy who are so

truly devoted in their careers to confronting objects of the highest

importance and making a real difference uh I think anybody for example interested in intellectual property uh

would name Larry as the single most important figure in how we conceptualize

how grown to conceptualize inal property over the years part of Larry

significance is that he not only writes important books and teaches at important

places like stord law school and Harvard Law School is now but he also gets

himself involved with social movements um um and um um after you know

climbing to the top in that area where most academics would have been free to

remain um he really shifted his interest very sharply to something another topic

about which he feels very passionately which is captured in the title of his book of are we in danger of losing the

Republic and it is valuable that Mark Rosen in his remarks a few moments ago

evoked a clause of the United States Constitution that is never taught frankly even at our nation's leading law

schools because the Supreme Court around uh 1849 or so basically read it

out of the Constitution by saying well we're just not going to hear any claims brought on it and what law professors

teach their students is the parts of the Constitution that are actually litigated

and since Republic form of government is not litigated we never bother bringing it up um but where he is very very much

um uh uh wrestling with what the term a

republican for government can mean in the 21st century um it is also very

interesting at the age of 19 he was an alternate delegate to the Republican

convention in 1980 um where I presume he enthusiastically supported Ronald Reagan

um I think his politics might have shift at least a bit since then uh but Larry

really is somebody um you know I'm proud to call a friend uh we're going to co-ti

seminar in the fall um uh at the Harvard Law School on what a

new convention might look like had U had one I think we CH so you say you want a

new convention um and um so he really is

just a model citizen as well as an extraordinary academic um and I'm

delighted to uh present them to talk about is the Republic still in danger of

being lost um assimilating what we learned in the

[Applause]

2012 so I'm grateful to Sandy uh for having me here when he asked me I think

it was almost 17 years ago to come speak this is a well planned

conference um of course instantly I said yes I was very happy to come as much to

to celebrate the subject as to celebrate uh Sand's extraordinary contribution to

constitutional thought in the biggest sense of that not the Constitution the

document but the thought of what it means to continue to keep constitutions alive now when he asked me to come he

asked me what do I want to talk about um and I've got to I've got to confess that

the I I spend too much of my time away from my kids speaking about this issue

and the one thing I hate most of all is coming up with the title um and describing what I I want to talk about

usually the organizer then pesters me a million times what's the title what's the title Sandy didn't testor me and the

result was this title just to kind of remix on my book's title which of course

I'm all in favor of uh uh but it kind of forces me into a certain frame which I embrace and I'm happy to take and trying

to continue a conversation about how I think we should think about the problems that are at the center of this at of

this conference um I guess I want to begin by saying what I fear as I listen

to the debate in this Academy in particular is that we over

intellectualize the problem we make it seem like a harder

intellectual problem than in fact it is we think about members of Congress as if

they're much more sophisticated creatures than the actual pedestrian characters that they are and we don't

allow our pedestrian understandings of how we people function to inform us

enough reminded of Pascal in the context of Pascal's wager describing how a

person who didn't believe in God would come to believe in God and he said well if you just act if you sit down and pray

enough and frequently enough eventually you will believe and I think that's the frame I want to push here how do they

act and then what do they become because of what they act how do they act as members

of Congress and as a consequence of that behavior what should we expect they are

now to lay this argument out I want to set up first what I think of as the

problem some of you have seen this way I want to frame the problem but I want to frame the problem this way to

crystallize a set of intuitions that I think we should have and not enough bring to the issue so I want to tell

this problem describe this problem by first introducing a story I was told by Walt Disney all stories have to begin

like this so once upon a time once upon a time there was a place

called Lester lamp Sandy was very kind he didn't tell you my first name is Lester it's a

secret please don't tell anybody um so I'm allowed to make fun of lesters and that's what I want to do I want to make

fun of Lester here so lesterland lesterland looks a lot like the United States

States as the United just like the United States it has about 300 million people and of the 300 million people

about 144,000 are named Lester the internet told me that must be true so that means

about 05% of lesterland is named Lester now here's the funny thing about lesterland lesterland not surprisingly

lesters have a certain kind of power there are two elections every election cycle in lesterland one is called the

general election the other is called the Lester election in the Lester election the

lesters get to vote in the general election all citizens over 18 in some

states if you have an ID get to vote but here's the catch to be allowed to run in

the general election you must do extremely well in the Lester election

you don't necessarily have to win but you must do extremely well okay that's the picture of democracy in lesterland

what can we say about lesterland well I think we can say number one as the Supreme Court said in citizens united

the people in lesterland have the ultimate influence over the elected officials because after all there is a

general election but they have that influence only after the leers have had

their way with the candidates who wish to run in that general election and point number two obviously this

dependence upon the lers will produce a subtle we could say understated camouflaged bending to keep the lers

happy and point number three reform that angers the

leers is likely to be highly unlikely okay that's lesterland three

things I want you to recognize about lesterland number one United States is

lesterland United States L United States also looks like this also has two elections one election is called the

general election the other election we should call the money election in the

general election citizens get to vote if you're over 18 and some states if you have an ID in the money election it's

the relevant funders who get to vote and as in lesterland the cat here is that to

run in the general election you must do extremely well in the leester election

you don't necessarily have to win not in all cases there are Jerry Browns in the story as well so not always but usually

usually that picture of the Democracy which is our democracy has this one key

feature to link it to the story I told you about lesterland there are just as few relevant funders

in this democracy as there are lesters in

lesterland are you saying really 05% well here are the numbers from

2012 3% of America gave more gave more than $200 to

any federal candidate in the 2012 election 055 gave the maximum amount to

any candidate in the 2012 election 01 gave $10,000 or more to any set of

candidates in the 2012 election 0.003% gave $100,000 or more to Federal

candidates in the 2012 election here's my favorite number 000000

42% for those of you doing the numbers you know that's 159 Americans gave 60%

of the Super PAC money that was spent in the 2012 elections so you know I'm just

a lawyer I look at this range of numbers and I think it's fair for me to say 05% is a fair estimate a lower bounds on

the relevant funders in the system of democracy these funders are our lers

indeed in this election both uh Obama and Romney spoke of the extraordinary number of people who contributed small

dollar contributions that the total between the two campaigns $313

million that's $313 million was matched by the contribution of 34 leers 34 lers

contributed as much as all the people who gave less than $200 in this last

presidential election now like we'd say about Lester land this is what we can say about USA land number one the

Supreme Court's absolutely rights the people have the ultimate influence over the elected officials because there's a

general election but they have that influence only after the Thunder have had their way with the candidates who

wish to want run in that general election and number two obviously this dependence upon the funders produces

this subtle understated we could say camouflaged bending to keep the funders

happy members of congresses and candidates spend between 30 and 70% of

their time raising money to get back to Congress or to get their party back into

Power the Democratic Leadership handed this document over to to freshman uh

Democrats just in January describing to them what their schedule ought to be

four hours of their daytime work is devoted to the problem of raising money

by calling people to give them money of their work during the day this doesn't include nighttime work which of course

is attending fundraisers the largest by two a factor of two thing they're supposed to do is to raise money now as

ordinary humans we are we all get this if you lived that life we would develop

as anybody would develop here a six sense a constant awareness through this

practice of how what we do might affect our ability to raise money we become in the words of the X Files shape shifters

as we constantly adjusted our view in light of what we know will help them to raise money not on issues 1 to 10 but on

issues 11 to 1,000 leslee burn a Democrat from Virginia describes that when she went to Congress she was told

by a colleague quote always lean to the green and to clarify she went on he was

not an environmentalist then point number three

reform that angers the funders is likely to be highly unlikely in the USA as

lesterland okay that's Point number one the United States is lesterland number two United States is worse than

lesterland worse than because you can imagine in lesterland if we Lester has got a letter from the

government that says you guys get to pick the candidates who will be the candidates that run in the general election you know there are lers from

every single part of society there are black lers there are white lers not many women lers but put that toide for a

second but there's lers from all parts of society you can imagine it's at least possible we would develop a kind of

aristocratic attitude it's our job to think in the interest of lesterland as a whole it's at least possible that the

lers in lesterland would act for the good of lesterland but in our land in

this land in USA land the relevant leers here act for the leers because the

shifting coalitions of interests that comprise the 05% are comprising that number not

because they have the public interest in mind it's because of the issue they know is right over the horizon for congress

in the next uh session so if it's climate change legislation you know it's coal companies oil companies that

comprise a significant portion of the lessers if it's Healthcare reform you know it's doctors and insurance companies and pharmaceutical companies

that comprise a significant portion of the leers these people comprising the 05% are acting not in the public

interest this is the sense in which the USA is worse than lesterland and then finally Point number

three whatever one can say about lesterland get the background of its Traditions blah blah blah in our land in

USA land leester land like government is

a corruption Now by corruption I don't mean brown paper bag corruption people

handing out cash to members of Congress against the laws of bribery I don't mean Rob Lovich

corruption I'm not speaking of any violation of any criminal law indeed everything I'm talking about I'm happy

to stipulate is perfectly legal nothing I'm describing violates the law Instead

This is a corruption relative to what I believe is a framers Baseline for how

the structure of incentives for this government was to be set the framers

gave us what they call a republic but as they explain again and again by a republic they invoke the idea of a

representative democracy and as Madison describes in Federalist 52 by a representative democracy he means a a

democracy that would have a branch that would be quote dependent upon the people

alone right so here's the model of government the people government I do my own slides it's really cool the way that

bounces like that right so people the government and it's through that exclusive dependency so the public good

would be found but of course here's the problem Congress has evolved a different dependence not a dependence upon the

people alone but a dependence upon the funders too this is a dependence too but

it's a different and conflicting dependence from a dependence upon the people alone so long as the funders are

not the people this is a corruption and I want to give it a name

to help understand the rest of what I want to argue about today I want to call it dependence corruption it's a

Corruption of the intended dependence this branch of government was meant to have okay now this word is

significant or in this font this is the Supreme Court's font okay so in the

Supreme Court's font this word is very significant because if you can predicate

some practice you can predicate Corruption of some practice if it's corruption then Congress has more

regulatory freedom to deal with that practice particular you can have permissible speech regulation if it's

corruption if it's corruption then there's a lot Congress can do that it otherwise is not permitted to do so that

pushes a very significant question what does the word quote corruption mean and

the simplest conception of what it means is what we think of as quit proquo corruption or influence has in

corruption so you ask why is that kind of corruption not permitted or that kind

of influence not permitted in our system I think the point is that at the level of the individual representative inside

of our government this demonstrates a wrong kind of dependency whatever else is supposed to be allowed to influence

the representative it can't be this if this is the equation describing just like at the Economo on my side for a

second the equation describing all the influences that might be operating on a represent resentative as a

representative decides what she wants to do personal financial gain is just not allowed to be among those things it's

the wrong dependency and therefore permissible to regulate against it and against the appearance of this kind of

dependency inside the decision functions of our Representatives so if you think about First Amendment corruption by

which I mean the kinds of thing the court recognizes as corruption for the purpose of allowing regulation of speech

the First Amendment notwithstanding which pro quo corruption is the simplest most obvious

case now for a time there was a different kind of corruption that the

court recognized what we could just call inequality corruption um based on the work of some

of the people who are here the court was embraced the idea explicitly in Austin versus

Michigan that when somebody was acting on the basis of unequal speech resources that in part were caused by the

state then that was a kind of corruption that the State could intervene to

correct so if the state protected an entity by giving it the status of a

corporation giving it limited liability and that led to it having resources it otherwise wouldn't have the state would

have the right to come in and say okay therefore we're allowed to limit your speech rights to balance that unequal

Advantage we have given you through our state action and of course that conception of corruption is what the

Supreme Court and citizens united overrule it said whatever that was that thing which the conservative justices

couldn't even conceive what it was that they were talking about that was overruled so that this idea of

inequality is now clearly plainly not part of the permissible Corruptions that

might ground the right of a Congress to regulate to address a problem in the way that the elections might be functioning

but what I'm suggesting and but the first point I want to make very strongly here is what I think they should see

what the Supreme Court should see is is distinct from these two ideas quid

proquo corruption and inequality corruption they should recognize dependence corruption recognize

dependence corruption so if quit proquote corruption says at the level of the individual this is a wrong

dependency whatever else can influence the individual it can't be this this meaning personal financial

gain then what dependence corruption says is at the level of the

institution the wrong dependency cannot be allowed to obtain whatever

else can influence the character of representation it can't be this Lester

like dependence that Lester likee dependence is the wrong kind of dependency and Congress should be

permitted subject to all the constraints of the First Amendment to regulate to

eliminate this kind of corruption so I want to call this dependence corruption and I want to suggest that it is

perfectly consistent with with the reasons the court sets up for permitting Congress to regulate quid proquo

corruption for it also to allow Congress to regulate to eliminate dependence corruption okay I mapped that idea out

of my book Republic loss there's some push back to the idea and the strongest push back rck hen wrote A A really um

really great review in the Harvard Law review that makes this argument quite powerfully the biggest push back is

dependence corruption is actually just inequality corruption I say there's a distinction between the two he said says

there isn't a distin distinction between the two and I confess that it's possible

the court would not see any distinction they're getting old their glasses don't work any work well anymore so you know

they might sort of blur them together and they would blur them together because of course dependence corruption

is related to the ideas of equality it's related because the wrong dependence

I've identified here is a wrong dependence because not everyone within the Republic could be a Lester not

everybody within the Republic could be giving $10,000 to candidates to run for

office not all of us have that kind of resource so it's that inequality that sets up the improp impropriety of the

dependence and so in this sense there is something related to equality in the conception of dependence corruption and

it's also true the Supreme Court has gone completely insane in its thinking about equality in the context of

election law I mean the most extreme example was recent case Arizona free enterprise

where the Chief Justice said to the uh to the party defending the law I went on to your

website and I found on your website in some place the claim that this law was

designed to level the playing field and therefore I know this law was motivated by equality and since it was motivated

by equality the law must be unconstitutional creating a bizarre constitutional standard which says that

if equality was anywhere in the motivation behind a law it is per se

unconstitutional even if it's not the intent of the law even if it's just an effect of the law it is

unconstitutional now this is crazy talk I can't actually believe the court is going to go that far or maintain that

kind of extreme position it's inconsistent with its own earlier conception of the way to regulate in the

context of um uh voting law so for example if money is speech which of course the court in Buckley affirmed it

is then of course speech the votes are speech as well so consider the vote

speech battle that came to a head in the case of Reynolds versus Sims where there

was lots of dis inequality in the relative power of a vote caused by the

failure of states to abortion the votes equally so some some voters had 10 times

the power with their vote that other voters had the court looked at that and the court said well the conception of

political equality from the Declaration of Independence to Lincoln's Getty Bird's address to the 15 17th 19th amendments can only only mean one thing

one person one vote AKA leveling the playing field that was the

Constitutional requirement in the context of this speech resource it's required that we mandate states keep

within a tiny tiny parameter of this obligation but in the context of speech

that comes through money there is no possibility that we can be advancing this equality conception so my view is

this crazy talk by the court won't continue that far and I do think these two conceptions are analytically

distinct the equality conception and the dependence corruption conception not all

inequality is an improper dependence there plenty of cases of inequality that don't manifest improper dependence and

some proper dependence will produce inequality so for example if the state

of Michigan instead of worried about the being worried about the corporations in Michigan having too much power said

we're worried about unions having too much power because they have a very easy ability to organize people to turn out

to vote and the state had tried to address that inequality I don't think dependence

corruption would have authorized the state to address that kind of inequality because that kind of inequality is

precisely the kind of inequality that a voting system is supposed to ratify now instead I think the problem with

equality that the court has is what we could call the demostenes reductio remember deases is an order U who's so

good that eventually they require him to put rocks in his mouth before he's allowed to speak so he brings him down

to the level of everybody else and I think that's the kind of anxiety the court has when it thinks about this

equality rationale justifying intervention in the spee market and I just don't think the dependence

corruption justification has the same deanes reductio implication so I think

dependence corruption is a distinct conception of corruption distinct from inequality distinct from quid proquo and

the important thing is the court could embrace it consistent with citizens

united because citizens united does not get decided differently under the

conception of corruption that I've described because whatever dependence

corruption is the idea that a nonprofit filmmaker gets to spend its money to

promote its film does not implicate in any sense of my conception what I'm talking about is dependence corruption

so it's perfectly consistent with citizens united that it's not consistent with another case familiar to many people here the speech now case from the

DC circuit which I think would have to be reversed so I think the court can I think the court should recognize

dependence corruption as a distinct conception of corruption when I was younger more idealistic I would have

said then the court will but you see that that idealism is a little bit faded for me right now so I won't actually

make that prediction here okay so that's dependent corruption my claim is this

kind of corruption has an effect and as relevant to this conference I believe it has the effect of rendering us or

explaining part of what renders us ungovernable now this comes in two parts

one is because of the perception that this kind of economy of influence creates as I've said again and again

many people affirm Americans believe because of this kind of economy and I think Americans are right that it's a

separate question let's focus on what they believe that quote money buys results in economies for the poll that I

did for my book that was released last fall 75% of Americans affirmed that statement a little bit higher democrats

for Republicans but I guarantee you before the Republicans took control of the house in 2010 it was just as many Republicans and Democrats so whether

it's 2/3 or 34s here's the one thing we as Americans all believe money buys

results in Congress and theyve also said that I believe that belief weakens trust in the institution of Congress Sandy um

pointed to statistics which um which are about the performance of Congress ABC News and New York York Times had a

different poll last year where they found that 9% had confidence in Congress trusted Congress in in this sense Sandy

invoke this claim which I want to make much more strongly if we put this in context I think it's certainly the case

that a higher percentage of Americans had confidence trusted the British crown than trust our Congress today and that

leads to claim number three I said this weakened trust weaken participation many

uh instances suggestions of this Rock the vote which organizes Young voters turns out young voters 2008 turned out

the largest number of young voters in the history of voting found in 2010 a significant number of the young voters

weren't going to show up so they pulled them to ask them why Number One Reason by far two to one of the second highest

reason was quote no matter who wins corporate interest will still have power too much power and prevent real change

and it's not just kids the vast majority in my uh vast majority in 2010 who could

have voted did not vote in part I think because of this belief and in this election 40% of the people who could

have voted did not vote in part I think because of this belief that's the perception clim and it's important to

recognized we're not talking about mere perception It's Not Mere perception because this perception has a real

effect it has an effect and I think that effect is reason enough to think about how we might change it justice sudor in

Nixon versus shrink Missouri um put it this way leave the perception of impropriety unanswered and the cynical

assumption that large donors call the tune could jeopardize the willingness of Voters to take part in democratic

government and if sudor says it it must be true okay now there's push back here

too people have asked a question does money actually weaken trust or does the

collapse of trust correlate with money because after all if you look at the Gallup poles and you see the collapse of

trust and you overlay it on top of this the rise in money it wouldn't be necessarily a perfect correlation even

as a lagged function not a perfect correlation as Rick hin um summarizes

Nate person and Kelly L's paper no good evidence as he says of a correlation between campaign Finance law and public

trust exists and number two does this weaken trust weaken participation it's a great

new paper that just came out by a local Darren Shaw um uh which looks at a bunch

of attitudes arounds um campaign finance and reaffirms much of what I've said but this is the one that he put they the

authors push back strongly on U they find evidence to support the idea that the more One Believes the political

process is corrupt the more likely one is to engage in political activity exactly the opposite of the concern that

I've described but in the face of this I think again as academics we have to step back and think what is the appropriate

tool for understanding the behavior or the attitudes that we speaking of

because number one we have a problem of confounding facts the claim that changes

in campaign Finance laws don't seem to increase trust confounds with another

fact that Claris uh recognized last year Claris polling organization did a poll last summer they asked the question do

you think these laws campaign Finance laws have been designed more to help current members of Congress get

reelected or do you think these laws have been designed more to improve the system 80% of Americans affirmed the

cynical view of why Congress passes campaign Finance laws so if 80% of us

believe that they only pass this laws to help themselves it's no surprise that campaign Finance laws don't produce an

increase in trust and I also think there's a wrong level of analysis going on here we have too much macro analysis

when we need more micro analysis and at the center that I uh run at Harvard the Edmund J saff Center we have a lab

focusing on this General problem what we call institutional corruption been a lot of research we've helped support this is

I think among the most interesting trying to understand how people people's judgment about confidence in claims by

supposedly respectable institutions is affected by the perception of a relationship to a financial interest in

this study the uh the researchers got actual doctors clinicians to read

summaries of research about uh hypothetical drugs I mean they thought they were real drugs but you know anyway

the description of the drugs included a description of the testing methods so was it gold standard test or medium or

not a very good kind of test and it includ Ed in the description mentioning of whether it was government funded or

um industry funded or didn't mention funding at all so after running thousands of these uh surveys Beyond uh

to these doctors but they could conclude and demonstrate conclusively in the statistics is industry sponsorship

reduces the doctor's willingness to believe and act on the trial findings independently of the trials quality even

if it was a gold standard trial the most reliable kind of trial that you could be

still the doctors the people who actually Rely Upon This research were less willing to trust the claims than

they would have been if the funding had been independent we uh mazarin BAGI and

I did a similar study that looked at a bunch of different contexts and also found a similar relationship all that

you had to do was suggest a financial incentive to significantly influence the participants trust and confidence of the

claims that were being made in the context of medical research in the context of consumer products and in the

context of politics now I think against the background of this micro research meaning research about how attitudes are

actually affected by this kind of experience it would be weird to conclude that though people are less trusting of

their doctors or less trusting of medical research they are not less trusting of members of Congress when I

find out that members of Congress have this indirect financial interest in the positions which they are

advancing and then third finally I I worry that we're looking at the wrong kind of corruption in some of these

analyses so in the paper by Shaw um uh which basically concludes the more you're convinced their bums the more you

want to throw them out even if they're all bums you know and I think many of us had this experience around this election

you know you could look at both the Democrats and the Republicans and think that they are both equally as uh uh

committed to the current system of funding elections so from the perspective that I care about neither of them is Innocent but still I have a

strong reason to turn out and vote for one side versus the other given there is no alternative in this system but if you

think of trust here or the reason to turn out is less about um uh whether we

can make intra um uh uh intra marginal gains but more about uh the efficacy of

my participation and people like FS have done work that shows that distrust as in

lack of political effective efficacy is low linked to these lower participations

rates and this is again I think not terribly counter itive and sometimes I

fear in this context that we have what I could call the academics fallacy the academics fallacy is that there is no

truth unless it's counterintuitive so to answer this

fallacy let me let me just say counterintuitively that's not true okay that's the perception side

let's talk a little bit about the reality side the reality of the economy that's functioning here because I think

that this corruption has a particular economy uh and it's that economy that contributes to the ungovernability which

we're talking about this weekend there are two aspects of this economy one is the economy of what I'm going to call no

and the second is the economy of extortion so first with the ex with in the context of the economy of no anytime

you have a system where this tiny tiny fraction exercise this disproportionate

influence it's going to follow that a tiny number of that tiny fraction is going to be enough to block any change

Always or at least almost always unless some exogenous event happens like the Republicans discovering they're going to

be extinct unless they start talking sensitively about immigration or a tragedy like Sandy Hook except for those

exogenous shocks to the system it's always going to be the case that these small number of leers will be able to

band together to block any sort of change and that points to a particular instability of the government that we

have allowed to evolve this instability of this economy of no because this economy

depends upon polarization the economy that tries to sell the ability to block change it depends upon polarization it

depends upon dysfunction the more dysfunctional the system the easier it is to sell the ability to block change

dysfunction is the business model as Lee Fang in the nation described he scraped

from a website something that was quickly removed by the lobbyists on that website lobbyists were advertising their

service um Steve Duffield is this lobbyist here and this this is one of the a one of the services he advertised

managing holds in filibuster your organization has an interest in a bill that has proven controversial and you require advocacy before the legislators

often backbench Senate Republicans who may exercise their prerogatives to delay or obstruct endgame strategies will give

you a new way to manage your interest in a legislative environment that gives great power to individual Senators their

ability to sell their services depends upon the ability of single Senators to

stop the changes and that economy then within this economy we facilitate the

kind of economy of no that I'm describing and when you step back then and think about all the issues any of us

could care about right whether it's healthc care reform on the left or government bailouts on the right or global warming legislation on the left

or a complex tax system on the right or financial reform for the left or financial reform for the right what we

recognize what we should recognize is there will be no sensible change in any

of these areas until we change this corruption because of the tiny number of lers that are needed to block that

sensible change this is the instability that the economy of no produces and then there's the second economy the economy

of extortion I've tried to focus you on the 05% the lesters but think for a

second about the 0.14% members of Congress who represent

0.14% of the American public I've said they're dependent

but the dependent creates his own dependencies as a way to feed his

dependence so if you're an addict and you need to find a way to feed your addiction best if you can create

somebody else who's dependent upon you so that person has a reason to feed your addiction so for example two years ago

the Wall Street Journal was puzzled by this explosion in what they uh refer to

is this temporary tax code and the increase in the number of extenders what they call extender me

what this is referring to is the tax Cod has all sorts of little exceptions built into it little exceptions that benefit

some kind of some particular company or some kind of investment and these extent these exceptions um have a limited life

so they expire at a certain point and then at the end of that life the decision Congress has got to make is

whether to extend them again if they extend them that's called an extender and what the Wall Street Journal was puzzled by was the explosion in

extenders but from the perspective I'm offering the explo should be obvious right so temporary tax Provisions are

given to us initially by Ronald Reagan in 1981 research and development tax credit is enacted but there's an

argument about whether it would work so it was made temporary so the economist could test it and after a period of time

they would ask did it work and the uh economists to tell them whether it worked or not and if it worked they would make it permanent and after a

period of time Republicans and Democrats alike agreed it worked it made sense it was absolutely an essential part of an

efficient tax code the puzzle is it is still temporary to this day still

temporary so why is it still temporary to this day well as Rebecca kaisar writes in the Georgia law review the

fact about research and development tax credit is the principal recipients are large US manufacturing corporations

these business entities are more than willing to invest in lobbying activities and campaign donations to ensure the continuance of these large tax savings

and the institute for policy Innovation which has a little bit uh very realistic conception of how this actually works describes it like this this cycle has

repeated for years Congress allows the credit to lapse until another short extension is given proceeded of course

by a series of fundraisers and speeches about the importance of nurturing Innovation Congress essentially uses

this cycle to raise money for reelecting promising industry more predictability

the next time around congress makes the manufacturers dependent upon Congress so

the manufacturers feed congress's dependency or think about in the context of Medicare what I love about Medicare

is it's the only only large organization in the world that doesn't have an official logo that has a high quality

resolution on the web so this is all you know something virtuous about that okay so Medicare Medicare in the

late 1990s launched this program the sustainable growth rate program the design of it was that the amount that

Medicare reimburse doctors would decline over time so every year there was a scheduled uh reduction um and then the

question Congress had to face every year is will they allow the plan to go into effect but of course what we see is

every time this reduction is about to come into effect the dock fix happens again the dock fix refers to Congress at

the very last moment passing a law that says we're not going to actually Force doctors to take less money from Medicare

and what precedes the doc fix exactly the same kind of lobbying and fundraising activity to say to all the

doctors you know we got to get the support we need to make sure that we don't have a reduction in the amount of money you're going to get as a doctor

once again a dependency created to feed the dependency that Congress has has or

the fiscal cliff legislation of course is the is the most dramatic of these and you know there were many of these things

that were inserted in the bill at the last minute while most of us were celebrating um there were plenty of examples of tax extenders put in this

bill the doc fix was put in this bill but the most tramatic and really it shocked Senate staffers so Senate

staffers went to the New York Times uh secretly to I mean with anonymously to sort of get this out there was this

extraordinary gift given to drug manufacturers right there's a there's a these drug gen which is used for

dialysis that was scheduled to go into a lower price regime two years ago

Congress gave it another two-year extension where it didn't have to go into that lower price regime this time

they did it again in the fiscal cliff um Richard painter who was Bush's uh Chief ethics officer wrote this piece in the

illegal ethics Forum calculating it was a 99,9% return which this drug company got

for the lobbying dollars they spent to get this inserted in the fight fiscal cliff this single change will cost

taxpayers one half of a billion dollar over the next two years because of the

refusal to change the way in which we were pricing that particular drug or it's not just in the context of taxes um

all of you of course will recognize this as the communications uh Act of 1934 that act which has seven different

titles today uh six different titles today uh Al Gore shortly after inventing

the internet um had the idea that he wanted to take internet related titles and put them under a new title title

seven and title seven would be fundamentally deregulated so infrastructure provision of uh Broadband

would be fundamentally dgul but when his chief policy person took this idea to the hill as you reported back to me the

idea the feedback from the hill was hell no if we deregulate these guys how are

we going to raise money from them again this is the economy of

extortion and it's a kind of extortion that enables the fundraising and I want to suggest the fundraising is the key or

the funding is the key or to invoke another favorite phrase the funding is the roots in the sense that Theo spoke

of when he spoke of the Thousand hacking at the branches of evil to one striking at the root we need to find a way to

strike at this funding route okay now those claims too have a certain amount of push

back um many some in this room many not in this room argue well look no no no no no money is a problem but there are lots

of other issues out there the Senate is one of the biggest problems more than

money or the Republicans um as uh nor morstein and

Tom man bravely put it in their recent book are the Republicans or polarization is the problem and my view

is no doubt all of these are problems no doubt we've increased polarization at least among the politically active

class but the question I think we need to focus is what do we do do about these

problems or which of these problems can we do something about so how would you address polarization for example

remember in the Federalist uh papers uh Madison in describing a faction sets out

his description of the faction and the problems factions are going to cause uh and um and then to address the pro the

problems of factions are cause you could say one thing we can do is remove the causes of factions and the other is

thing we can do is by controlling the effects of factions and of course to remove cause is would be pretty

totalitarian to force us all to be exactly the same so he wants to deal with the effects I thought that was an

obvious response to that alternative then I found this thing on the internet which is a little bit striking the first is an initiative called Mosaic

Earth the mission is very simple we eliminate debate and I mean

this literally in any area with any amount of emotionally charged

multi-layered problem that you can imagine so he's eliminated the causes

this Madison would have been very intrigued I think by this I mean you can tell me uh Jack but um okay so if we don't want to go down that path of the

literal as he says literally removing all debates by I don't know what he's going to do to us to make it so we don't

disagree at all about anything anymore okay if we don't going to do that then what are we going to do consistent with

underlying values of Liberty and diversity because I think here too we could think about how to remove the

causes of polarization like here's one way the internet suggests Texas could seced that would significant chunk of

the cause of polarization but here's another idea I love the internet I just literally thought has anybody put up a

site for this and the answer is yes invade Canada that's another way to to deal with the problem with polarization

we invade Canada then we give them citizenship rights and they're all liberals so now we have a liberal State

you know so this is the point these are ways we could deal with the polarization but none of them are realistic ways to

deal with the polarization none of them are consistent with more fundamental values instead of those ways of dealing

with polarization we should think about ways that actually we could adopt or

apply that would deal with the polarization and I think changing the economy of fundraising is one way to

deal with the polarization because what's striking about American politics is not that it's polarized it's that

it's inconsistently polarized inconsistent with ideologies so on the

money issues there's only one party in America right the Wall Street issue 1990s 2000s there was only one party in

America the party that supported exactly what Wall Street was paying for in its regulation it's on the social issues

that it's polarized but that pattern of polarization and non-polarization is

perfectly consistent with a strategy to maximize fundraising capacity because

with the business issues you want to speak in a way that will get the businesses to pay you the most with the social issues you want to Rally up the

troops for your crazy side of the debate whether it's Pro gay rights or or anti-abortion the point is that this

strategy is at least correlates with the best strategy for funding and I think

it's the same point that we can make in the context of the other things identified as a problem you might think

Republicans are the problem and in my post Republican stage I'd be happy to say we ban Republicans but of course

that's not going to happen you know we're not going to change Republicans affirmatively in the same way with the Senate um you know we thought we were

going to do something with the Senate but it turns out we're going to do very little with the Senate and you ask the

question how could the Senate give up what they recognize is this money printing machine which they have with

the capacity they have to sell the ability to say no so I think we need to

fix what we can fix and one thing we can fix is the way we fund elections and that's the reason

why I continue to think this for corruption has an effect an effect that we need to take seriously okay so if

this is the problem specifically not the idea of money or not the amount of money

in politics that's not the problem if the problem is kind of disciplining

practice to invoke a folian like conception of it the problem is that we that members are spending tons of their

time raising money from the tiniest slice of America and we invoke the sense of

Pascal in this and think of they are here what they do if this is what

they're doing spending all of their time raising the money from the leers then what is the solution to that problem

what's not a solution not even close to a solution are the things that the Democrats push for example most strongly

the idea of disclosure disclosure doesn't address this problem at all because it doesn't change this Dynamic

at all same thing with common cause out there with its Amendment 2012 strategy or at least last year that has its idea

the solution to our problem is that these slogans corporations are not people or money is not speech if we can

only insert those slogans into our constitution we'll address the a problem that is leading to the corruption of

this democracy but again if the Constitution were amended tomorrow and I hope it isn't to say that money is not

speech I think money is speech um and I don't really care about the corporations as a person thing but if it were amended

tomorrow in both of those ways it would not change in one iota the way in which

members of Congress are spending all of their time raising money from the tiniest slice of the 1 percentage so

these are not changes and then there are changes that aren't enough of changes some people are saying well then the solution here is just eliminate all

limits so that people can give as much money as they want so that they don't give all their money to Super PAC so the

candidates can control the funding uh more directly and and actually spend less time fundraising because if you

don't have to raise money from 50,000 lers you only have to call two or three then you can spend more of your time

doing other stuff and and that's true that solution would deal with the problem of the amount of time that

people spend raising money but would also increase the corruption from the

way that I've described it because it would make our Congress dependent upon an even tinier slice of the American

public you know the adolfs not the lers the kind of really really tiny fraction of Americans who happen to be in the

position to be able to fund these kinds of Elections okay then people push matching funs of fair election now act

as this that pushes more small contributions but the problem is not necessarily more small contributors so I

think that drives us to say well then what would be enough what changes here would be enough and I think arriman and A's idea um and and uh um Rick Rick

Hassen also described this P this early on in this description of um what we could call democracy vouchers um or

democracy dollars is what he was talking about there basically vouchers that we give to voters that they can use to fund

campaigns in my book I modify this a bit to say that the candidate's ability to take these vouchers is conditional upon

the candidate agreeing to fund his or her campaign only with vouchers plus contributions capped at something like

$100 these are systems s for basically spreading the effective Financial influence out to all of us congressman

sarb and Son of Paul S John sarin from from Maryland has a proposal called the Grassroots democracy act that was

introduced um in September this has matching funds and the tax credit and a

pilot program for vouchers all designed to make it so that more citizens are engaged in the practice of being the

relevant funders of campaigns ideally all citizens becoming the funders and not not just the leers now I think this

is reason enough to push this but there's another consequence of this alternative that aren't the people have focused

on I wonder whether the consequence of handing out vouchers to

everybody and telling candidates you're going to fund your campaigns by raising money from everybody through these

vouchers wouldn't create the incentives that the Australian voting system creates the Australians require

people actually show up to vot vote they don't actually have to vote but they have to show up to vote which requires

that candidates actually speak to a wide range of Australians because they know they'll be there at the polls I wonder

whether vouchers don't create the same Dynamic and the reason for thinking that is this if we think about the elections

that we have right now the voting election is a discreet election it happens Primary in the general two days

that it happens every election cycle um and constitutionally mandated to be absolutely equal in the effect of the

the power each of us have the money election is continuous it's an election that happens

every single moment or the four hours or six hours a day that a member of Congress spends calling people to raise

money it's continuous but constitutionally fundamentally unequal but the point is if there were

vouchers out there other people were constantly raising money from this

continuous election um would be an election that would be enfranchising all

people in the system and the incentive of candidates who need to raise money from these vouchers would be like the

incentives of candidates in the Australian system to speak to a wider range of the public in order to

facilitate the funding from vouchers so this effect might be to narrow the uh

strategy of polarization which I think is built into the current way in which we funder devs okay one final point

about this so sy's question is the Republic still in danger of being lost

obviously my view is yes if by Republic we think about a representative democracy a

democracy that depended upon the people alone that Republic has clearly been

lost but what I plead for is a sense of strategic Clarity what is the strategy

that we could craft that might have a hope of getting it back thanks very

much

we will break sharply at two but that gives us roughly 20 minutes for

questions I'm Wonder sorry with if we take roughly four questions at a time

you can respond to that group and then go until

hi my name is mat Spitzer I really enjoyed your presentation thank you uh I was just wondering about your opinion of

the low lowest unit charge regulation on Section 315 which guys like you and me

know about which basically requires that all candidates uh be charged the lowest

possible charge for broadcasting time when I'm asking about broadcast because of course if you ask where the money

goes ask people in Ohio right uh the bunny ends up in advertisement on every

possible conceivable you could possibly watch or listen to uh you know bfcc has

stopped enforcing the lowest unit charge uh and

so so would actually having a lowest unit charge would be enforced be part of

this sort of Equalization approach that uh that you would uh suggest let me ask

there's has a question roughly along this line so may top City cluster have

not been to just respond directly so I I certainly think uh it would it would be

better if the lowest unit charge were being enforced it's of limited utility

because of course it's not going to apply in lots of the contexts which are relevant but still would be valuable but

even if campaigns cost half as much as they cost so long as candidates are

raising money from the tiniest slice of the 1% it's the same corrupting Dynamic

so so I I'm I I agree we should find ways to make the system cheaper that

would be great be great if we could do what Europe gets to do which is basically take over television stations

and mandate time that candidates have in Long chunks to present their case um but

even if we did that still as long as campaigns cost something and we raised money from the tiniest slice that's

corrupting yes I'm curious about an issue that hasn't been raised anywhere yet and that is the ongoing Wars and I'm

wondering are the lesters all war mongers or because I don't see that

there's any sort of uh Movement by people in Afghanistan to hire lobbyists to go on Capitol Hill and have

congressmen vote to drop bombs on their country yeah so and that's really the

danger of where the Republic would be lost it seems to me is that we uh get lost into a cycle Perpetual War

yeah so you know of course certainly um Eisenhower who gave us the

slogan military-industrial complex the original version of that slogan was military Congressional industrial

complex and he was poined to exactly the same kind of concern about the military and the way the military might drive for

it own self-interested Reason by creating dependencies with Congress to increase uh its scope um but and so

there lots of people doing work to demonstrate how that kind of corruption exists inside the military I actually think you know there are certain areas

in our government that might be relatively immune to the problem that I'm talking about so in the context of

administrative agencies activity that's below the political noise level which

you know where the members are nobody's paying attention to it there lots of great um bureaucrats who doing great

work that's actually driven by what makes sense as opposed to anything that's affected by this and I think there are lots of areas of foreign

policy where the same kind of Point might be said I think Jack Gold's latest book kind of suggests the way in which

you can have sensible policymaking around this but I will you know point to a particularly I think grotesque example

of exactly the dynamic you're talking about um uh you know if you think about the the fighting Kosovo United States

decision to militarily get involved in Kosovo one way to understand that is you

know one of the very very few times in American history where we committed troops for what had to be just a

humanitarian purpose there was no strategic reason why we were going to get anything out of Koso there's no oil in Koso you know so all the cynical

assumptions about why we get involved didn't apply in that case but there was a piece in the times a couple months ago

about how all of the public um service contracts that are now being issued by the Cho government um are being bid on

by people who were affiliated with the Clinton Administration so people who were the Clinton Administration now go

over to Koso start these firms and then they bid on like telecommunications contracts or on contracts to deal with

you know whatever other public infrastructure things that you need and I you know and if I were Clinton I would be I would be outraged at that because

you know the one thing of my legacy you could say that I was doing for the right reason now turns out you the coast of ours look at this and think oh I guess

this is the way corruption happens in America it's expost rather than exany so you pay the bribe after not before all

right fine so you know you show up and you say you're Clinton person of course we got to do this what else are we going to do and that's that's I think a really

disgusting Dynamic that you know we should Administration should have a very strong reason

to my name is Carl Jarvis um I'd like to uh I guess suggest a point of strategic

Clarity and get your thoughts on it which is uh a point that you alluded to around the nominating process in the

direct primary and the uh fundraising demands that that creates on the part of candidates and specifically if you go

back back before the direct primary laws were enacted when we had something like the convention system a lot of that

funding actually went through the parties uh candidates were not required to raise money on their own behalf um

and if you look at a lot of these problems I mean everything from Watergate to a lot of the corruption issues that you discussed in your talk

um the problem comes down to the candidates controlling the funds and I

could give a number of examples I'm not going to take up time with that but as far as this point of uh of clarity

people talk about the convention system as being corrupt I think that the problem that we have today is actually a

lot worse under the direct primary and as far as um I just want to say one final thing about that some people may

say well you could never reenact the convention system you can never reenact the indirect primary the fact of the

matter is if you made a law like that optional uh in other words you allowed each party at its discretion to hold an

indirect primary hold a convention that actually selected candidates and only one party opted to do that that party

would win the election for the simple reason of this Dynamic around fundraising to get nominated and also

the dynamic around uh the issues in in in the moderateness of of candidates so

I'd love to hear your thoughts on that yeah I mean I'm not committed to the view or it's it's nowhere close to my

view that there's just one problem in American politics I think there's a whole slew of

issues in American Poli and I would join with the people who believe that the weakening of party system is one of the

um one of the problems or the I would say more precisely the substitution of interested influence for for the party

influence is a problem and and you know you you've given me the introduction to your book in a in a handout and I'm

eager to to look at it to to see about this problem because I've really not thought much about how to change the

original primary system it's convinced you know it's plausible that this would actually create a greater Integrity in

the system more independence from money possible um so that could be one of the

problems to solve but the point I'm trying to emphasize is what's the sequence of Reform what's the reform that would be

generative of other reform what's the reform that make it possible to get to other places and that's why I'm trying

to pick on this one that if we could make progress here I think makes some of these other these other uh uh problems

easier to handle so if we change the way we fund elections there'd be no strong commitment to keeping the existing way

of funding the primaries because that would have been removed so then why not think about other ways of running primaries that will create greater

opportunity for parties to to to do the good work that you're suggesting that can do there I a question which is may be

clarifying which is whether you you're making one proposal or two so early in the talk we talked about the prospect of

the Supreme Court possibly recognize independent corruption and then later at the end of The Talk you propos this idea

of vouchers which I think is a very attractive idea and I wasn't quite sure if they're connected or or how they're

connected exactly you can say more about how how they so here's here's the link um so I think the voucher proposal AC's

proposal um or the proposal I've outlined is perfectly constitutional even under this supreme court but people

ask the question well is it enough is if you have super packs that get to spends unlimited amounts of money maybe that

scares people away from opting system so do we have to address the super package

and the reason it becomes important for the court to recognize dependence corruption is um is that I don't think

the court has actually answered that question if the court conceived of an idea of dependence corruption distinct

from Quick quote quote corruption that was the issue that was raised in the speech now the DC circuit said it

follows from citizens united that limits on independent political action committees are also

unconstitutional but I don't think it follows from citizens united with a proper understanding of what corruption

is that independent political action committees cannot be restricted at all I think it might follow from citizens

united you can't tell the C brothers that they're not allowed to write a check for $10 million and buy a bunch of

ads that might follow from that but I do think dependence corruption suggests that these things like independent

political action committees that become kind of extortion rackets which signal to candidates which way they have to

behave in order to make sure that they're not attacked or they are supported if they do get attacked those

things do directly implicate what I'm talking about is dependence corruption so the court would have to recognize

that conception in order to uphold regulations like a regulation that would try to reinstate with speech now did um

and it also gives a sense to why what the Congress would do with vouchers for example would be advancing a significant

public interest and the interest would be to eliminate this kind of dependence I was talking about the

extent to which you believe there are diminishing returns on campaign contributions um for the simple reason

that if there are it's not as if that solves the problem or makes this a an issue you shouldn't still consider but

it does for like a better way to put it sort of set an upper limit on how bad things can get with money and if if we

can sort of identify points at which you knows they do more damage or less we can

perhaps use that to sort of strategize and prioritize um sort of conrete policy St

yeah this this I think is a this is a version of the of the question of what if we could lower the cost of campaign

so what you're saying is what if we would lower the amount we have to spend on campaigns or have to raise for campaigns because it turns out the last

million dollars is not really worth the effort and I and the answer both cases is that might be true I think this

campaign demonstrated that I think Romney campaign in particular found the last three weeks um they're getting no

return from their advertising because people just tuned out they were so bombarded by television advertisement

they have a reason to they didn't want to listen anymore so the strategy might say tune it back do it more slowly do it

early or whatever but regardless of that there still is the underlying question of how you're actually raising whatever

money you need to raise so I think it's really important to distinguish between one debate which is how much does money

actually buy you does it really buy you Victory and there lots of you know ways

to look at that and the answer is contested questions from the question which I'm focusing on which is what does

it do to a candidate to spend all of his time focused on the problem of raising money that's the issue that I care about

not what does some money buy you know one very dramatic example from this election Barack Obama had 101 public

rits he had 221 fundraisers Ronald Reagan in his second

term had zero fundraisers zero fund and I don't say that because I love Ronald Reagan I

don't know if I do anymore but my point is you know Ronald Reagan lived under Public Funding right um he was the

candidate who benefited the most from Public Funding in the history of Public Funding he ran three National campaigns

with Public Funding um and in the context of Public Funding you have to spent any of his time focused on this question of fundraising he spent all his

time talking to people and it's the differ and that's the difference that I think we have to find a better way to

focus on what do we produce in legislators when legislators are just

obsessed with this narrow question of how do I keep the lesters happy as opposed to keeping the rest of us

happy um the presentations last night

today suggest that there are multiple structural noties that we have to deal

with to correct this problem um and as a a friend of Article

5 convention you and I have long agreed that in order to achieve points we're

going to have to pass constitutional amendment to address multiple many of these structural

anoms just alluded to the fact that um slogan

eror has had some unintended consequences in terms of how people think about this process so my question

is is methodological um I don't think that we ever going to get such a constitutional

amendment through con through Congress has been you know given all the disincentives here that you pointed to

the obstruction ha so I'm curious uh

about where you think we ought to go and how to get how to force Congress to call

an article 5 convention so we can actually address this at the Constitution level where it has to

structurally be addressed yeah I mean I mean let's let's be clear about

just how pessimistic we should be about Congress actually addressing this um Jim

Cooper who's been in Congress for as long as all about 20 other members of Congress characterized to me it to me

like this he said you have to understand Congress has become Capitol Hill has become the kind of farm league for

casy and what he means is members and staffers and bureaucrats have this common business model their business

model focused on their life after government their life as lobbyist um and they focus on their life

as lobbyist because lobbying is extremely lucrative and lobbying is extremely lucrative because in part of

its relationship to the way we fund campaigns most interesting statistic I found when I wrote my book was that in

1972 the average salary of a lobbyist was the same as an average salary of a staffer on Capital Hill the same because

they were just policy wonks right but when they begin to be uh those policy wonks and Central points in the funding

mechanism they're more valuable um and so if you have a system where everybody just expects we're going do my time and

then cash out and become a lobbyist very few of those people are going to be Keen to fundamentally change the economy of

lobbying and therefore destroy their future so I think the idea inside the Beltway change here is hopeless and

that's why I you know I do agree um in a kind of uh you know Jefferson Madison

sense with the Kentucky Virginia resolutions so we got to find a way to go outside right um get the states to

rally for the kind of change that has to happen and that introduces the Article 5

um uh convention um which is a long conversation because you know I think at

least a couple of us are are sat are satisfied with the risks and the returns

of this but I think most people are terrified by it um uh but I I am somebody who believes that uh that at

least the pressure that gets created by States counting you know being counted

on their way to an article 5 convention would be enormously helpful to getting

Congress to actually try to do something about it so we have an organization that's got liberals and conservatives

it's about to launch that is facilitating this process uh Vermont's

uh uh Massachusetts and the Wolfpack people here in Texas have gotten

resolutions introduced in these states to call for um an article 5 convention

and there's conservatives have been doing this much more extensively around balanced budget issues so I think this

is a process that will go for forward but you know let's just flag the fact there are a million questions people have legitimate questions that have to

be addressed in in uh in 30 seconds we can the last question

go so I'm just one of the many people reliev that I spoke before you rather than after I pity the rest of the panel

through the afternoon wanted to be part of the push back crowd I think you're way too sunny about the prospect of

sueme court is going to accept this the so you in some ways that opinion like a

statute you never opion like a statute it's true that in that opinion they don't say exactly what you say rejecting

your theory on the other if we are going to pass a par case like a statute there

one stands out for me which is intiation and access are not corruption more

importantly if you look at the over narrative courts here they have tons and tons of

evidence of the theer Comm and since then they really near

taken advantage of their and taking it down piece by piece

despite extensive evidence of leer theory in record by Congress and and the

Court's own decision so I don't even know why you need to do it you're playing the long game the long game

involves Actuarial tables and Democratic majority putting them going on needs but I don't I don't buy that this accept the

the you do um it's even the more liberal courts we've had have been

very so so I I guess I pushed back on the claim on the push back I push back on

the push back um that the ler theory has been framed in this way I think the the

claim is the my claim is that first the alternative to quid qu quo has been too

expansive it's been the equality conception so I think I don't actually think it's conf frame to consider

there's one brief that raises it in the Arizona case but they didn't need to think about it in the Arizona case okay

but the second but but you know what what am I what's the dynamic I'm expecting here you're right if there are

five members of this Supreme Court who look at our system of election and think yeah this is great this is sunny this is

fantastic what we've done is super nothing I'm saying would compel them to change their mind absolutely but what I

expect is that there's at least one who looks at what has happened and thinks whoa I'm not really excited about what's

been produced here and then what that one might say to his clerk um

is is there a way for me to affirm what

I did before but actually find a way to address what has grown out of this mess

and all I'm saying is the answer is yes there there's a way to say citizens united was rightly decided in the sense that of

course nonprofit has a First Amendment right to spend their money to promote their film um of course the idea of

independent expenditures if truly independent in this sense creates a different kind of issue of corrupt but

the system of funding we've developed where we can see the pattern of attention is focused on this tiny little

group creates what I'm calling Independence corruption and more importantly for this particular Justice

at least in some of his modes of thinking this I think is the strongest originalist view for worrying about

corruption like the framers of a constitution were not thinking about bovich that's not they were worried

about like the structure of incentives that they're setting up the kind of corruption that they're worried about

when they look at the British crown is the institutional corruption the way in which one institution has the

opportunity to corrupt another institution by the by the loyalties they can build in they start thinking about

this in a more General sense and that's EX the kind of corruption I'm talking about here so I would say to not the

Justice I worked for because I don't think he listens on this issue but you know at least another Justice on that court I would say a good originalist

could say the thing they're worried about is exactly this kind of distracting dependency and there's

completely legitimate reason for Congress to try to protect itself from this distract dependency and so

therefore Congress does have the power to enact a kind of reg legislation that would for example try to overturn speech

now and if you want to do this there's nothing you've done before that you need to to step back from um and and so

that's the only point that I'm making but you're right obviously what we're trying to do is create a long-term conception of why it's right to address

this kind of corruption it's right to address this kind of corruption consistent with the idea of creating a a

a government a republic that is responsive to the different type of dependencies which a legitimately

independent government ought to be responsive to before we think uh lar let remind you that we will reconvene

promply 25 in the it courtroom with the next panel is the people's branch is

Congress hopeless

but