Campaigns need votes to win. But

they need money simply to survive. They get that money from a

vanishingly small percentage of Americans.

According to Harvard law professor Lawrence Lessig, only

0.26 percent of Americans give more than $200 to congressional

campaigns. Only 0.05 percent give the maximum amount to any

congressional candidate. Only 0.01 percent — 1 percent of 1

percent — give more than $10,000 in an election cycle. And in

the current presidential election, 0.000063 percent of Americans

— fewer than 200 of the country’s 310 million residents — have

contributed 80 percent of all super-PAC donations.

“This, senators, is corruption,” Lessig said Tuesday, in

testimony before the Judiciary Committee. “Not ‘corruption’ in

the criminal sense. I am not talking about bribery or quid pro

quo influence peddling. It is instead ‘corruption’ in a sense

that our Framers would certainly and easily have recognized:

They architected a government that in this branch at least was

to be, as Federalist 52 puts it, ‘dependent upon the People

alone.’ You have evolved a government that is not dependent upon

the People alone, but that is also dependent upon the Funders.

That different and conflicting dependence is a corruption of our

Framers’ design, now made radically worse by the errors of

Citizens United.”

Last week, Senate Democrats took another run at blunting

the influence of Citizens United, the U.S. Supreme Court ruling

that permits unlimited contributions to independent political

committees. The lawmakers voted for the Disclose Act, which

would have required groups making more than $10,000 in campaign-

related expenditures to disclose contributors who had donated

more than $10,000. No longer would information about election

spending be limited to, “This ad paid for by Americans United

for a More American America.”

Republican Filibuster

They failed. Senate Republicans successfully filibustered

the legislation. Even if the Democrats had succeeded, the

Disclose Act would not have gone nearly far enough.

It’s a quirk of politics that we tend to focus on the

aspects of problems that are readily dramatized by legislation.

This makes a certain kind of sense: It’s better to spend our

time thinking about what we can fix than what we can’t. It can

also make us a little myopic.

The Disclose Act was ultimately a minor piece of

legislation. Recall those numbers above? It wouldn’t have

changed any of them. Nor could the act truly force full

disclosure. As Lessig argued in his testimony, the Disclose Act

wouldn’t force disclosure of money that hadn’t been spent. In

today’s world of unlimited super-PAC expenditures, that may be

the most influential money of all.

The power of super-PACs is not restricted to their ability

to buy airtime for television ads. That’s what attracts all the

news coverage, but the more insidious function of super-PACs may

be influencing legislation before a single dollar is spent — by

threatening to buy future airtime.

Imagine the oil industry wants a small, technical change in

a law setting environmental standards. It’s an issue few voters

are following, or will even hear about. But it’s worth billions

of dollars to the industry. So oil companies establish a super-

PAC and send lobbyists to every congressional office with a

simple message: Legislators who support the change will receive

a donation, and each legislator who votes against it will be

subject to $1 million in super-PAC attack ads in their district

in the last week of the campaign.

The most likely outcome is that compliant lawmakers will

guarantee that the super-PAC money never has to be spent.

Without spending, there is nothing to disclose.

Wrong Problem

The deeper problem is that the Disclose Act is addressing

the wrong problem. Citizens United focused attention on the

failures of our system of campaign finance. But it did not

create them. As Lessig puts it, “On Jan. 20, 2010, the day

before Citizens United was decided, our democracy was already

broken. Citizens United may have shot the body, but the body was

already cold.”

The real culprit is arguably the 1976 case Buckley v.

Valeo, in which the Supreme Court held that political money is

tantamount to political speech. As a result, Congress can’t

limit spending by campaigns. Citizens United and related court

decisions made it harder to regulate spending by outside groups,

which further eroded the legitimacy of the system. It is all but

impossible to break politicians’ dependence on big funders so

long as their opponents can benefit from moneyed interests

spending unlimited amounts of cash on an election.

There are good ideas out there. The Fair Elections Now Act

would make it substantially easier for members of Congress to

rely on small donors to fund their campaigns, though it still

would not do them much good if a super-PAC descended in the

final days of a race and spent millions on negative ads.

Fundamental solutions require more radical thinking. At the

same Senate hearing where Lessig testified, Ilya Shapiro, a

scholar at the libertarian Cato Institute, said, “To the extent

that ‘money in politics’ is a problem, the solution isn’t to try

to reduce the money — that’s a utopian goal — but to reduce

the scope of political activity the money tries to influence.

Shrink the size of government and its intrusions in people’s

lives and you’ll shrink the amount people will spend trying to

get their piece of the pie or, more likely, trying to avert

ruinous public policies.”

It is true that if you could shrink the government to a

size where it no longer mattered in people’s lives, moneyed

interests might be less likely to try to influence elections.

But that seems unlikely, and between the dismantling of the

social safety net and the destruction of our military might, the

cure might be worse than the disease.

The other side of the coin — and, I admit, this is utopian

thinking — is a constitutional amendment making it possible to

limit the role of private money in politics. This is not a

solution I like endorsing, because it seems impossible to

imagine it actually happening. But it was, presumably, difficult

for a previous generation to imagine that the Constitution would

be amended to permit the direct election of senators, thus

necessitating expensive campaigns that only a small fraction of

Americans would fund. Yet here we are.