Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [113]
The second effect is on the public’s trust. The public isn’t stupid. It recognizes that the focus of the politician is elsewhere. Every other year there’s lots of screaming at the public, lots of messages on TV, many of them extremely negative. But once the campaigns are over—once, as Obama powerfully put it, the “confetti is swept away… and the lobbyists and the special interests move in”52—the focus shifts back to the funders. The public is therefore not unreasonable in believing that it is the funders, not the voters, who call the shots. The public is not crazy when it loses faith in its democracy.
Justice Kennedy, however, denies this effect on the public’s trust. In a second critical passage from Citizens United, Kennedy writes:
The appearance of influence or access… will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate…. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “to take part in democratic governance” because of additional political speech made by a corporation or any other speaker.53
Notice the nature of this claim. Here, one of our nine lawyers in chief is making a claim not about the law or about some complex legal doctrine that needs the keen legal insight that we presume our Supreme Court justices to possess. He is instead making a statement about cause and effect: a representation about facts in the world. An effect (the voters’ losing “faith in our democracy”) won’t be produced by the challenged cause (“the appearance of influence or access”). And as one does for South African president Thabo Mbeki’s statement that HIV doesn’t cause AIDS, one wants to know, upon what authority did the justice make this claim? On what factual basis did the Court rest this factual judgment?
The answer is none. The Court had no evidence for its assertion. It didn’t even purport to cite any. Instead, Justice Kennedy tried to negate the suggestion that there could be such a link by invoking a point of logic: all the money does is to buy campaign advertisement; a campaign “presupposes that the [voters] have the ultimate influence over elected officials.” That logical fact of “ultimate influence,” Kennedy argued, demonstrates the social-psychological fact that “the electorate [will not] lose faith in our democracy.”
I’ve already addressed the logical gap in this argument in chapter 10: even if the money simply buys political speech, if procuring it or inspiring it to be spent requires distortion in the work of government, that distortion is reason enough to be cynical about the government.
Consider now the psychological gap in Kennedy’s argument: Attitudes don’t follow logic alone. Or, at least in this case, they need not follow from the very narrow chain of reasoning highlighted by the Court. It is perfectly plausible that an individual would look at our current system and lose faith in that system, even if the system “presupposes that the voters have the ultimate influence.”
The point bears emphasis. Imagine the following political system: Every citizen gets to cast a vote to determine which candidate for Congress gets to be a member of Congress. But the Politburo or Exxon or George Soros or Glenn Beck (you pick) gets to decide who will be the candidates for Congress. No doubt, the voters in this system “have the ultimate influence” over which candidates get selected. But the voters in this system have no influence over who the candidates will be.
No one would say that this system was a democracy just because voters had “the ultimate influence.” For a democracy, as we understand the term today, must ensure not only an equal vote at the time of election,