In an earlier post I briefly discussed efforts spearheaded by Larry Lessig to “strike at the roots” of political corruption. As I noted then, Lessig is the author of “Republic, Lost: How Money Corrupts Congress–and a Plan to Stop It.”
While Lessig’s overall goal is to free Congress from its corrupting dependence on money (see him interviewed here by Dylan Ratigan, who is spearheading the “Get Money Out” campaign), in this post I want to focus on an aspect of his political reform agenda that has emerged since the Supreme Court’s Citizens United decision: his call for a constitutional convention. Sticking with Lessig’s “roots” terminology, one might call this aspect of his strategy “replanting the roots of our republic.”
In a February 2010 article entitled “How to Get Our Democracy Back,” published in The Nation magazine, Lessig discussed the prospects for campaign finance reform in the wake of the Citizens United decision.
Referring to the changes proposed in the Fair Elections Now Act, Lessig had this to say about its prospects for achieving the necessary reform:
Before the Supreme Court’s decision in Citizens United v. FEC, I thought these changes alone would be enough at least to get reform started. But the clear signal of the Roberts Court is that any reform designed to muck about with whatever wealth wants is constitutionally suspect. And while it would take an enormous leap to rewrite constitutional law to make the Fair Elections Now Act unconstitutional, Citizens United demonstrates that the Court is in a jumping mood. And more ominously, the market for influence that that decision will produce may well overwhelm any positive effect that Fair Elections produces.
While Lessig expressed continued support for efforts to pass the Fair Elections Now Act, the Citizens United decision apparently had convinced him that “we also need to begin the process to change the Constitution to assure that reform can survive the Roberts Court.”
Noting that “[n]o amendment would come from this Congress,” Lessig suggested it was time to seriously consider an alternative path to constitutional reform.
[T]he framers left open a path to amendment that doesn’t require the approval of Congress–a convention, which must be convened if two-thirds of the states apply for it. Interestingly (politically) those applications need not agree on the purpose of the convention. Some might see the overturning of Citizens United. Others might want a balanced budget amendment. The only requirement is that two-thirds apply, and then begins the drama of an unscripted national convention to debate questions of fundamental law.
Many fear a convention, worrying that our democracy can’t process constitutional innovation well. I don’t share that fear, but in any case, any proposed amendment still needs thirty-eight states to ratify it. There are easily twelve solid blue states in America and twelve solid red states. No one should fear that change would be too easy.
Writing on the Huffington Post web site last August, Lessig pointed out that:
Never in the history of the Nation has an Article V convention been called — though we came close a century ago, when the call for a convention to make the senate elected was within one vote of the necessary two thirds. That was enough to spur Congress to reform itself, by proposing its own amendment and ending the need for a convention.
Noting that he has “enormous respect for Meckler,” Lessig also made it clear that he is “not an ally of the Tea Party,” nor does he “share a belief in the substance of the reform that the Teat Party has pushed.”
But, importantly, he said that he and Meckler “share the belief that our nation needs fundamental reform” and “want to have that conversation the way our Framers did—as a respectful discussion among people who disagree fundamentally.” Citing slavery as one of the fundamental disagreements among the nation’s Founders, he described his differences with Meckler, and “between the Tea Party and the Left more generally” as “tiny compared to the differences among many of our Founders.”
Below is a 5 minute interview with Lessig conducted shortly before the conference, which took place September 24-25 at Harvard Law School. In it he discusses issues related to holding a Constitutional Convention.
In a follow-up post after the conference, Lessig reported that:
Attendees included unionists and anti-war activists, states’ rights-ers and balanced budget advocates, electoral reformers and people who want to amend the amendment process. There was neither shoving nor shouting, no bullying or bloviating: We got along, we had a productive conversation, and we built a foundation of understanding that we can add to later…
[O]ur discussion wasn’t contorted by the incentives that warp conversations in Washington, or on cable TV. Attendees weren’t sifted through that same array of filters that makes it next to impossible for an ordinary American to win a seat in Congress. Nor was the conversation steered by cable TV producers constantly aware that only sizzle earns ad revenue. We were free to listen and speak, without worrying about whether being boring would cost us money. And what we found was that being boring bought us understanding. As Mark Meckler, co-founder of the Tea Party Patriots put it, there is a business model that profits from “teaching us to hate each other.” Everyone there was working against that model.
“And that,” he said, “ultimately, was the point of the conference.”
Most Americans can surely agree that Congress, as much as possible, should be unconstrained by incentives that compel it to behave differently than would a representative sample of Americans, coming together to try to do what’s best for our country. But instead we have a Congress that’s so thoroughly captured by narrow interests, subject to so many perverse incentives, that it’s overwhelmingly disdained by the people whom it’s supposed to represent — with recent polls showing only 12% confidence ratings.
In closing his post-conference report, Lessig referred to James Madison’s comments on the first Constitutional Convention of 1787:
Madison reports that at the…Convention, Virginia’s George Mason argued that if the proposing of amendments were to depend “on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.”
In a November 2011 article in the Atlantic magazine, Alesh Houdek suggested that Lessig’s book and his “call for state-based activism on behalf of a Constitutional Convention” could provide a “handbook” for the Occupy movement.
Considering the question “[H]ow do we begin a popular movement that might end with states petitioning for a convention,” Houdek noted that:
Lessig calls for mock conventions to happen all across the land: assemblies of regular people to think of these, and other, problems, and come up with solutions that might work. Not only would these conventions come up with a spectrum of solutions which could be evaluated and selected from, but they’d build national support for the idea that a convention like this could work.
Though he concedes that this scenario “sounds unlikely to happen,” Houdek suggests that the Occupy Wall Street movement, [p]roperly leveraging its support…could generate enough energy to do what Lessig, while writing this book, couldn’t quite picture.“
This possibility is apparently not lost on Lessig, who seemed to be encouraging something along these lines last October, when the Occupy movement was very visible on the streets of cities around the country. For example, here’s a short (1:38) interview with him at the Occupy Wall Street site in New York:
And here’s a 5 minute excerpt of a short speech he made before an Occupy K Street group in Washington, DC, roughly two weeks later.
These comments, his writings and his Harvard-hosted conference with the Tea Party, make it clear that Lessig sees a need and a strategic opportunity to bring together concerned citizens on both the left and the right to address the issue of political corruption and, if necessary, to do so via a constitutional convention.
Though it’s tempting to dismiss this as a pipe-dream, my view is that it’s not only admirable and inspiring, but strategically sound, at least in light of the dismal alternatives. And I think Lessig makes a good and important historical point in his piece in The Nation:
No doubt constitutional amendments are politically impossible–just as wresting a republic from the grip of a monarchy, or abolishing slavery or segregation, or electing Ronald Reagan or Barack Obama was “politically impossible.” But conventional minds are always wrong about pivot moments in a nation’s history.
I especially like the idea of holding “mock conventions” to demonstrate that American citizens can come together to respectfully discuss and debate issues and, in doing so, to discover common goals and value, and practical pathways by which to realize them. All the more so in the Internet era, where those not in physical attendance might still be able to participate in some ways, at least to observe and comment on the proceedings and whatever recommendations or decisions it arrives at.
Among other things, I think these mock conventions could begin to restore our faith in the democratic process, a faith that has become dangerously frayed by the toxic “money dependency” Lessig rails against, aggravated by an endless barrage of mind-muddling sound bites, high-paid punditry and deceptive attack ads.
For those who’d like to learn more about the possibilities for “citizen deliberation” of public policy issues, the following organizations/sites might be of interest. And if anyone can recommend other organizations active in this area, please do so in a comment.