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How the campaign finance system is eroding confidence in Congress

By Lawrence Lessig
Friday, October 1, 2010; A19

For at least 40 years, congressional campaign finance regulation has been about saying no. The laws regulating Congress and congressional elections have limited large contributions from individuals and political action committees. They have banned contributions from corporations. The aim throughout has been to restrict the amount of money in political campaigns and to vigorously disclose that part not restricted. Except for contributions to independent committees, every campaign contributor giving more than $200 is as easily discovered as movie showtimes on Fandango.

(For more opinions on what changes in campaign finance disclosure laws could mean for Democrats and Republicans, read David Axelrod's "The election campaigners we can't see.")

The hope in these regulations was that sunlight and constraint would somehow make politics clean and expand confidence in government. Things haven't quite worked out that way. With each new set of constraints, those interests seeking access (and more) build ever more elaborate means to feed a dependent Congress the campaign cash it so desperately needs.

The result hasn't been a rising tide of confidence or the belief that lawmakers stand independent from their funders. Quite the opposite: The vast majority of Americans believe, rightly or wrongly, that money buys results in Congress. Confidence in Congress is at a historic low -- 11 percent, according to a July Gallup poll. Arguably, more believed in the British monarchy at the time of the Revolution than believe in our Congress today.

(Check out a video in which Lawrence Lessig talks with The Post's Fred Hiatt about potential changes in campaign finance.)

Last week the House Committee on Administration took a step toward radically changing this approach to making government trustworthy. By a voice vote, the committee approved a bill that would give candidates the option to fund their campaigns through small-dollar contributions only. The Fair Elections Now Act would offer a 4-to-1 match for contributions capped at $100. It would ensure qualifying candidates a sufficient grubstake to wage an effective opening campaign.

The aim of this legislation is to increase the total resources available to candidates to fund their campaigns and thus reduce the significance of large contributors at the extremes. It achieves its objective not by saying no but by giving candidates a credible way to tell their constituents: "It is not the money that is buying my vote."

It is not yet clear whether the Democratic leadership will allow this critical reform to come to a floor vote. It should. For too long, Americans have viewed the system of campaign finance as hopeless. This election should at least be an opportunity to debate a system that is fundamentally different. Our Framers intended a Congress "dependent upon the People alone." We instead have a Congress dependent upon "the Funders" primarily. Whether or not it buys us fairness, the Fair Elections Now Act would at least offer the possibility of trust: trust that money is not unduly influencing the results.

Such trust is crucial for public institutions. Americans are fine when the government goes against us, so long as we believe the process is fair. But Americans don't believe that the process in Congress is fair. That belief in turn leads many to simply turn away from politics. A poll conducted in August and commissioned by Rock the Vote found that the No. 1 reason (by a 2-to-1 majority) that young people don't vote is that "no matter who wins, corporate interests will still have too much power and prevent real change."

The current system of campaign finance has corrupted the institution of Congress. Not because members are being bribed or taking kickbacks for government favors, but because it has produced a public that has no confidence that the agents of the institution serve their principal -- the People. That confidence is a key element in making the institution work. But that confidence is gone, at least in part because of the system of funding that this Congress continues to support.

How low does public confidence have to fall before leaders in Congress recognize that their institution is bankrupt? At what point do we, the People, get to debate a meaningful alternative? The House Committee on Administration's answer is the right one -- now, just as the nation launches the largest special-interest-funded congressional campaign in our history.

Lawrence Lessig, a professor at Harvard Law School, is the author of "Remix: Making Art and Commerce Thrive in the Hybrid Economy."

(For more insight on campaign finance, read E.J. Dionne Jr.'s "A bipartisan push to clean up the Supreme Court's mess," Ruth Marcus's "Intoxicated on fundraising" and Katrina vanden Heuvel's "Citizens United aftershocks.")

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