What Harvard Law Students Should Know About Equal Justice Works

A few weeks ago, I was visiting with Ralph Nader HLS ’58. I have known Ralph for most of my life and have seen how his dedication to the public interest has created enormous impact on so many issues including consumer rights, car safety, protecting whistleblowers, and corporate misconduct to name a few.

While Ralph is extraordinary, he is certainly not alone. Thousands of lawyers have dedicated their careers to helping under-served communities and causes. The vast majority of these lawyers will say they are incredibly happy with their choice, even though it meant a great deal of personal and financial sacrifice. It is hard but fulfilling work.

Here’s the problem: As the gap between the rich and poor continues to grow, we face a crisis in who has access to justice. There is just one legal aid attorney available for every 6,415 low-income Americans. About 80 percent of defendants in criminal cases can’t afford a lawyer, and the majority of parties in housing, probate, and family courts across the country go unrepresented. All the while, corporations and the wealthiest citizens can afford to hire the best lawyers.

The justice gap in America is a moral crisis, but dedicated law students and lawyers can help. Today, more students enter law school with public interest aspirations than in a generation. Many have been in AmeriCorps, Teach for America, the Peace Corps or have experienced the satisfaction of community service in high school or college. They are hungry for opportunities to serve. Unfortunately many are blocked by the scarcity of public interest jobs and mortgage sized educational debts.

Equal Justice Works, a national nonprofit dedicated to empowering tomorrow’s public interest lawyers, provides programming for students who want to take their public interest commitment to the next level. We pave the way for law students to build careers they dream of –careers that do more than pay the bills – by offering a continuum of programs for law students and young lawyers dedicated to closing the justice gap

Law students should learn how to manage their educational debt before it gets overwhelming. Students can supplement their eligibility for Harvard’s innovative Low Income Protection Plan (LIPP) with many of the educational resources offered by Equal Justice Works. We provide free monthly webinars and a free e-book, “Take Control of Your Future,” that contain comprehensive information on programs that can help you manage your student debt, like income-driven repayment plans and Public Service Loan Forgiveness (PSLF). You can get legislative updates, primers on debt relief programs, and more on our Huffington Post blog.

As a student, you can read about unique public interest law projects and enroll in AmeriCorps JD to cultivate your skills and work with 720 other law students across the country to deliver crucial legal services to people in need. Those with a passion for public service can act as student leaders, raising awareness about the need for public interest lawyers and inspiring other students to explore opportunities to expand access to justice. Because of Equal Justice Works’ student-led Law Students for Pro Bono campaign, thousands more law students across the country will be exposed to public interest law through pro bono requirements like Harvard’s.

You will find a wealth of public interest legal opportunities at the Equal Justice Works Conference and Career Fair, where more than 1,200 law students and recent graduates meet in Washington, D.C. in October to network, participate in cutting edge workshops about public interest law, receive media coaching, and interview for positions with over 140 public interest employers from around the nation.

Students entering their final year of law school can look to Equal Justice Works for answers to that pervasive question – “what’s next?” We offer the largest postgraduate legal fellowship program in the country with 285 Fellows currently in the field. An amazing 85 percent of our former fellows remain in public interest law to this day.

You can apply to help veterans with homelessness, debt, and other legal issues in the Veterans Legal Corps. You might seek to assist individuals in obtaining employment by expunging or sealing criminal records and restoring occupational and driver’s licenses with the Employment Opportunity Legal Corps. If you are committed to helping the recent wave of unaccompanied immigrant children receive assistance and fair representation, apply to Justice AmeriCorps. And if you wish to work with low-income communities to preserve and improve Section 8 housing, you can join the VISTA Affordable Housing Preservation Project. You can also apply for a privately funded Equal Justice Works Fellowship, where you design and implement your own project on any issue from environmental justice to LGBTQ advocacy.

One Harvard alumna, Megumi Tsutsui, is turning her law school experience into a rewarding public interest career through an Equal Justice Works Fellowship. Megumi did clinical work at the Legal Services Center, offering assistance to victims of predatory lending and debt collection. There, she realized an unmet need for the protection of low-income and minority populations against these malicious practices. She designed a plan to cultivate financial stability in low-income and Latino communities in the Bay Area by resolving bad debt and facilitating access to affordable loans. Megumi was awarded an Equal Justice Works Fellowship. Now you can find her in Oakland at Housing and Economic Rights Advocates, continuing the work she started as a student and making her plan a reality.

Megumi isn’t alone. Many Harvard alumni have received these Fellowships to design and implement their own groundbreaking projects. In Michigan, 2014 Equal Justice Works Fellow Jessica Frisina is working to throw a wrench into the school-to-prison pipeline for Detroit’s children, representing them in juvenile court and organizing the local community in advocating for restorative alternatives to incarceration and expulsion.

In California, 2013 Equal Justice Works Fellow Annie Hudson-Price is representing court-involved veterans suffering from service-related trauma and illness while promoting the widespread adoption of Veterans Treatment Courts as community-based alternatives to traditional sentencing models. And right here in Massachusetts, 2013 Equal Justice Works Fellow Erica Boyce is providing legal assistance and educational outreach to independent commercial fishermen on Cape Cod, facilitating mediation and training in dispute resolution to resolve entrenched conflicts between independent fishermen and the massive fishing companies that threaten their livelihoods.

Harvard Law students have more support for public interest pursuits than any other law school in the country. With its comprehensive course offerings, pro bono requirement, student practice organizations, and nearly 30 in-house clinics, Harvard Law School gives its students exemplary tools to cultivate public interest careers.

You have the power to be a force for justice. Under-served community and causes desperately need your talents. And Equal Justice Works has the resources to help you along the way.

David Stern is Executive Director of Equal Justice Works. Visit www.equaljusticeworks.org to learn more about innovative programs and resources that are empowering and mobilizing the next generation of public interest lawyers.

What Harvard Law School Students Need to Know About How They Can Help College and High School Teachers Introduce Tax Policy Issues in Their Curriculum

Here’s a challenge: Try to find a serious discussion of our nation’s tax policies in the curriculum of any liberal arts college or university. Good luck! The subject rarely earns more than minor attention even in economics courses. And it’s virtually absent from our high schools.

No one should be surprised. Consider this anecdote. In the late 1990s, I met with Arthur Schlesinger, Jr. to see if he would write a blurb for my forthcoming book, If Americans Really Understood the Income Tax. A favorite professor of mine when I was a Harvard undergraduate decades earlier, Schlesinger remained one of our country’s most distinguished U.S. historians. His initial comment: “But John, I know nothing about taxation.”

One reason: Never having been taught about our tax laws, let alone tax policy issues, professors as well as high school teachers have little idea what to teach and how to teach it. So they ignore what deserves to be part of a basic civics education.

With troubling implications: Taxation must have little bearing on our nation’s history or its future–on our social history, including issues of race, class, gender and poverty; on our nation’s economic growth; on our government’s ability to pay its debts and fund essential programs. At a minimum, students could well assume that the subject is beyond them, either because it’s inherently within the purview only of tax experts or because “my brain doesn’t do numbers.”

Here’s a different perspective. Except for the U.S. Constitution, federal tax laws represent the most comprehensive expression of our nation’s values. The laws touch upon nearly every aspect of our lives—housing, health care, education, jobs, unemployment, entitlements, marriage, divorce, children and childcare, retirement, charities and charitable giving, the environment, and on and on. The tax choices Congress makes crucially shape who we are as a nation and what we will become. Our young people need to know this.

Put differently, a public illiterate about our government’s tax policies is vulnerable to countless misleading statements about them. This is dangerous. We can’t afford it.

The case for introducing the subject to a college or high school curriculum is particularly timely now given the need for genuine reform of our nation’s dysfunctional income tax, and the vast divide between the parties about what such reform should mean. There is widespread agreement that a simpler tax system could be both fairer and promote greater economic growth. Rhetoric aside, we remain mired in a clash of two shouting matches: Taxes must not be raised on anyone—indeed, they already are too high, particularly on “the rich,” according to most Republicans–or taxes must be reduced on “the middle class” and raised only on “the rich,” the view of most Democrats, including President Obama.

Both arguments share one characteristic: They are data free. The public hears only conclusions, as if either argument is self-evident. Here’s what’s not self-evident: However “middle class” or “rich” is defined—and the choices seem unlimited– the tax liabilities of households within each category depend on far more than the size of their income. With well over 100 tax breaks protecting nearly half of all individual income from tax—nearly $7 trillion of untaxed income last year alone—households of equal size and equal incomes seldom owe equal taxes. Rather, the amount we owe depends far too much on our ability to avoid taxes than on our ability to pay them, whether we are middle class or rich.

Probably to your great surprise, all this can be understood by high school juniors and seniors in an hour.

My confidence stems from experience. For 25 years I taught a seminar for liberal arts students at Mount Holyoke College on the social and economic outcomes of our tax laws. And for the last year and a half, I have given numerous one-hour talks on the subject to high school juniors and seniors studying economics, U.S. government, or U.S. history. The teachers value it. The students get it.

But let’s make it a series of five-one hour talks that you—Harvard Law students—can help prepare that will enable college professors and high school teachers to introduce the major tax issues of the day to their students. Consider these topics I have covered in a single hour on the federal individual income tax for high school students:

First: The choice of an income tax vs. some form of consumption tax.

Second: The central revenue-raising role of the individual income tax and the need, therefore, that it be well designed and respected.

Third: The choice of progressive rates—those now and since 1913–vs. a single flat rate.

Fourth: The vast difference between “economic income” and “taxable income” under our tax laws, in which nearly half of all individual income escapes taxation through tax breaks for personal matters, such as for owning a home, buying health insurance, funding a retirement plan.

–Two consequences: (1) Tax rates on the remaining “taxable income” must be much higher than would be true with far fewer tax breaks; and (2) it is unlikely that people with equal abilities to pay will pay equally.

Fifth: Most of the “missing income” from personal tax breaks appear as exclusions, deferrals and deductions (each explained) that save the most taxes for people in the highest marginal tax brackets.

–Still, the top quintile of income earners pay about 90% of all federal individual income taxes, a much higher share of such taxes than their share of all income. (Low- and moderate-income households, while paying little or no federal income taxes, pay substantial Social Security and Medicare taxes, federal, state and local sales taxes, and, in some cases, state income taxes.)

Sixth: My favorite example: The home mortgage interest deduction—the most prized of all tax breaks and a third rail of American politics. Let’s assume it exists to promote homeownership.

–The law: Taxpayers may deduct the interest on up to $1 million of loans to buy, build or substantially improve up to two homes that they use personally.

–The estimated tax savings, and cost to the government, over five years: $400 billion (from Congress’s nonpartisan Joint Committee on Taxation).

–Who gets that $400 billion? (based on 2014 distribution by the Joint Committee)
For the bottom half of all tax returns: 2% ($8 billion);
For the top half of all tax returns: 98% ($392 billion);
For the top 5% of all tax returns: over 40% (over $160 billion).

Then questions and observations:

–Does the deduction significantly increase the percentage of home ownership? Probably not.

–The deduction drives up house prices.

–The deduction may create double losers: those who don’t benefit from the deduction and may pay higher rents if there are fewer rental apartments because so much capital is drawn to homeownership.

–Our economy may be stronger if fewer tax dollars subsidized expensive homes.

Finally, a discussion of possible reforms, such as subsidizing only a single, basic home; tax credits to subsidize the purchase, with the credits declining as incomes rise; lowering tax rates for everyone if these and other reforms significantly increase the amount of taxable income.

Professors and teachers need your help to craft these discussions. My bet is: you’ll enjoy it.

John O. Fox holds degrees from Harvard College, A.B. 1960; University of California at Berkeley Law School, LLB, 1964; Georgetown University, LLM in Taxation, 1968. He has practiced law in Washington, D.C., 1964- 2000; was visiting professor, Mount Holyoke College, 1985-2011; and is the author of If Americans Really Understood the Income Tax (Westview, 2001), op-eds in Washington Post, New York Times and other publications. He can be reached at johno.fox@comcast.net or 760-778-5222 in California, and, after April 2015, at 413-549-2604 in Massachusetts.

What Harvard Law Students Need to Know About Law School Transparency

In March 2012, I participated on a panel at Harvard Law School’s Global Legal Education Forum. We were asked to unpack the crisis in legal education. As co-founder of Law School Transparency (LST), I discussed the importance of eliminating deceptive law school marketing and increasing the availability of high-quality consumer information. One of our core goals is to empower prospective law students to make smart decisions about whether and where to attend law school. Information, and the narrative surrounding the pursuit of transparency, is paramount to that goal.

Prior to the panel, a well-meaning event organizer approached me. He accurately predicted that my opening remarks would stress how reliable consumer information stimulates competition. The S.J.D. student then suggested that I eliminate the word “consumer” from LST’s advocacy efforts. While he agreed that transparency was critical, he reasoned that pursuing a legal education is not merely or even predominately transactional. We were likely to lose out on potential support from some within the legal academy by using consumer-laden terms.

I thought carefully about his advice for weeks. Ultimately, I decided to stick with the evocative consumer frame. These word choices remind those in and around the profession, as well as those who want to join it, that pursuing a legal education has a distinctly transactional feel. Obtaining a legal education may be primarily about acquiring new knowledge and new skills, but choosing to attend law school today has an awful lot in common with buying a car or obtaining a mortgage.

Neither a home nor car purchase is inherently hazardous, but when a sophisticated party enjoys a major advantage over the other, e.g. an information asymmetry or disparate bargaining power, the results get unfair quickly. The law school process is brimming with examples demonstrating that students need help overcoming foreseeable disadvantages—especially would-be first-generation lawyers.

For many years, law schools withheld meaningful post-graduation employment data from students. The American Bar Association’s accreditation process blessed deceptive if not fraudulent statistics manufactured by schools. Schools counted all employed graduates equally, whether they worked as an associate at a large firm or as a barista at Starbucks or in a temporary job at their law school. Schools also declined to publish survey response rates when advertising starting salaries. Against a widespread belief that law school is a ticket to financial security, statistical chicanery distorted decision-making. Many students would have chosen another school or demanded to pay less if they had known the truth.

Competition among law schools is fiercer than ever. Schools still hire their own graduates to boost employment rates and rankings, although they must disclose it. While disclosure norms have changed, 40% of law schools still do not share their NALP Report, a handy report teeming with useful consumer information. Every school receives its school-specific report from NALP annually.

Unfortunately, Harvard Law School remains one of the holdouts. HLS should have nothing to hide, so the school has zero excuse to withhold information from its applicants. HLS could choose to disclose its NALP Report and stop aiding other schools from distorting student decision-making.

In addition to a continued information asymmetry, law schools have become more creative in their marketing, particularly concerning pedagogical and curricular changes that are challenging to parse. Even the cost of obtaining a legal education is obscure for students. The accumulation of interest on student loans during law school surprises more students than it should. Tuition increases are inevitable yet difficult to predict. And many law schools prey on optimism bias through conditional scholarship programs, which eliminate scholarships based on GPA and cause these students to subsidize higher-performing students.

Applicants also generally misunderstand the purpose of most scholarships; they frequently view scholarships as gifts rather than incentives. As we reinforce the effectiveness of negotiation and emphasize the strong bargaining position today’s applicants have in a soft market, we empower them to confront extraordinarily high prices.

Law schools leave too many people full of potential without hope post-law school. Poor choices in a life-altering financial commitment negatively impact students and their families. Purchasing a legal education is a transaction, and reliable consumer information is essential for combatting unfairness. We can help students become more sophisticated, like the institutions collecting their tuition.

We will continue to change the rules and the norms so that new lawyers join our profession with their eyes wide open. To this end, LST provides prospective law students with two key resources. The LST Reports offer a popular alternative to the U.S. News & World Report law school rankings. We also recently launched a podcast called I Am the Law, which expands public knowledge about the many roles that lawyers play.

We built the LST Reports (www.LSTScoreReports.com) on ABA-required data and data that we obtain from law schools through voluntary disclosure. To help people sift through schools and mountains of data, we carefully organize employment, admissions, and financial data. We help visitors see the big picture and, if they choose, the fine detail. In effect, we empower them to make strategic decisions and informed choices.

Statistics drive the LST Reports. Quantitative measures have significant merit, but answer only some questions. Indeed, “Do I want to be a lawyer?” is better answered with qualitative information. Our new podcast (www.LSTRadio.com) seeks to help people determine what, if any, legal jobs will satisfy them.

Each episode includes an informational interview with a lawyer about what his or her job entails. Our audience gains access to many more lawyers than they can interview on their own, and our hosts ask questions that provoke thoughtful, revealing answers. The interviews will help prospective students investigate whether a legal career is a good match. We hope they will also expose law students to jobs they haven’t considered. The result will be more students pursuing careers based on facts rather than fictions.

The bottom line is that the legal profession has an obligation to maximize the flow of useful, reliable consumer information. These efforts will aid students, prospective students, alumni, and clients. Our country needs lawyers, but they should be lawyers who are part of a transparent, affordable, and fair profession.

Some Things That Harvard Law Students Might Need to Know

Lawyers play many roles, discharge many functions – but we are also social architects [1], creating the systems and institutions and defining the rules by which they operate. [2] As our communities, our nation, and the world undergo vast changes –ecological, demographic, economic, fiscal and technological –we must ask ourselves what do we as lawyers need to know – and what do we need to know that we do not know so that, as true professionals, we know when to ask for help!

Some things that Harvard law students need to know:

1. Legal rules are not self-implementing. Victory on paper does not automatically translate into changed behavior by officials. Until we look at the systems that are responsible for implementation, until we learn how to get systems to do what they are charged with doing, our victories can be meaningless. None of the Harvard law students with whom I have met had heard terms like “emergent structures,” “stocks” and “flows” or considered the function of “Feedback loops.”

2. Most of us lawyers could not afford the very services that we ourselves are selling. We are part of a system that denies justice to anyone who cannot afford our services. When are we going to take responsibility for a system that only the wealthy and corporations can afford?

What are our responsibilities as Officers of the Court to create a system of rules and remedies that takes “justice for all” seriously? We enjoy a monopoly over the practice of law – but monopolies are conferred by law to advance a public purpose. What are we doing to advance access to justice as a fundamental right – at least where life, liberty and the pursuit of happiness are at stake?

3. The public has lost confidence in government’s ability to address the problems that require collective action. It may take a village to raise a child, but how is that village to be sustained and supported if no one will pay for the services and the infrastructure it takes to maintain a village? Voter turnout – or the lack of voter turnout – is a statement. John Barber has noted the degree to which there is “pervasive apathy about things public and political.”

“In a country where voting is the primary expression of citizenship, the refusal to vote signals the bankruptcy of democracy.” We have work to do – as citizens and as human beings – that we cannot delegate or simply contract with professionals and non-profits to do for us. Yet, students do not learn unless they work; patients do not get well unless they do what it takes to get healthy and maintain health; neighborhoods are not safe unless they develop something the experts call “collective efficacy” – a local culture of looking out for each other. Something is wrong if our solution to crime is limited to building more prisons and our solution to eldercare is building more nursing homes to which we can consign and abandon our parents.

4. Are you graduating law school without knowing the term co-production: what it means and what it takes? Nobel prize winner Elinor Ostrom coined the process by which consumers of a service become enlisted as active co-producers of the outcome desired: turning students into teachers and mentors; patients into support systems and healers; citizens into the civic work force needed to make democracy work, human beings into the work force needed to ensure that the planet can continue to sustain life.

5. To what extent have Harvard law students given up on addressing the racial disparities in well-being that system after system perpetuates? We see those disparities beginning in child welfare and proceeding from there to educational disparity, juvenile justice, employment opportunity, health care and eldercare. We see efforts to secure judicial intervention to effect system change blocked by the “intent requirement” established by Washington v. Davis. Plessy v Ferguson, separate but equal, may be gone in theory – but it is alive and well in most of our public systems.

Yet, the intent requirement can be met and transformed by the process of putting officials on formal notice of the effect of present practice and the availability of innovations that work, have been validated, save money and achieve superior outcomes. Once on formal notice, going back to business as usual becomes a conscious choice among alternatives- so that intent to perpetuate racial disparity can be inferred. City of Canton v Harris. Have Harvard law students asked: What would it mean to require officials to make use of knowledge of what works and cease perpetuation of practices that do not work and that perpetuate racial disparity? That requires going outside the law to work with other disciplines, to scrutinize decades of experiments funded by government and foundations, undertaken by innovators and by community groups. It would even take acknowledgment of our own ignorance of those alternatives and the pursuit of knowledge outside our own discipline.

6. Have students who entered this law school wanting to make a difference in the world pondered whether they have any responsibility for dealing with the implications of the dynamics built into our fiscal system that Piketty has documented? What is our individual, collective and professional responsibility to address and counter those forces that relentlessly drive inequality and perpetuate entrenched disenfranchisement? Consider Piketty’s conclusion:

When the rate of return on capital exceeds the rate of growth of output and income, as it did in the nineteenth century and seems quite likely to do again in the twenty-first , capitalism automatically generates arbitrary and unsustainable inequalities that radically undermine the meritocratic values on which democratic societies are based.

7. Have Harvard students succumbed to the myopia that defines a client only in terms of his or her problem — but does not see the client in terms of capacity and potential to contribute to the well-being of others? We are not blind to the assets of wealthy clients or corporate clients. But are we blind to the assets of those without money but who have the capacity to fight for justice, to help others, to advance democracy, to provide support for the frail and the disabled, to make our communities vibrant and our planetary ecosystem sustainable.

8. Why have we bought into a culture and a legal system that monetizes everything? Most recently Peter Barnes has reminded us that:

The global value of financial derivatives in 2012 was $687 trillion. That compares to a total world GDP of $72 trillion.

The total value of foreign exchange transactions in 2010 was $1.5 quadrillion, (a quadrillion is 1,000 trillion). Of that amount, only 1.5 percent was used to pay for real goods. The rest was currency speculation. (P. 57)

Our primary growth industry has become the finance industry, manufacturing digits in cyberspace which have no relation to anything other than digital risk and return. We are told that the primary question in our lives must be: “Is your money working for you?” Have we abandoned asking another set of questions: “What are you working for? What do you want your life to mean? And what kind of world do you want to leave for your children and their children?”

9. In Greek mythology, a certain King Midas was given anything he wished for. His wish (to turn everything he touched into gold) revealed itself as a curse when his food, his furniture and finally his daughter became inanimate gold. Have even the most idealistic Harvard students unwitting internalized what I call the Midas Monoculture where all values are converted into cost-benefit analysis utilizing a monetary system that devalues the very universal capacities that enabled our species to survive and evolve? Have they unwittingly succumbed to the Midas Monoculture where all investments of effort are judged in terms of the bottom line: billable hours and profit?

10. Finally, why have we not asked ourselves whether we have permitted only one medium of exchange to function as the definitive and exclusive means to compute value when we know it is possible to create alternative mediums of exchange to shape behavior? In education, we invented another medium of exchange to shape behavior: grades and academic credits. In cooperative economics and worker owned enterprises, we can honor sweat equity and confer ownership prerogatives. In TimeBanking and other complementary currencies, we can honor work that the market does not value and a citizen work force not recognized by economists. And we know from when we alter the characteristic of a medium of exchange that we change the dynamics.

Wall Street knows that when it “securitizes derivatives.” The World Bank knew it when they created special drawing rights. Environmental advocates knew it when they created carbon credits. Teachers know it when they change a grading system from 4.0 to pass-fail and when they confer academic credits for group projects and community service. Why are we not asking ourselves: what kinds of currencies, what kinds of mediums of exchange do we need to create the kind of world we all want to see emerge? We have ample productive capacity – but we do not have a distributive system that works to realize universal human values?
Yet, we have no medium of exchange that values, decency, caring and a passion for justice. In a world which is more interdependent than ever, what currencies and what fiduciary institutions vested with what powers of approval, disapproval and secular sanctification might we create to advance human dignity, preserve the planet and provide the exchange systems needed for all to subsist, develop, and contribute? How might a different medium of exchange and a different way to define value nurture the emergence of a different economics, an ecological economics that honors life?

My own attempt at an answer was to make Time itself a form of money – because Time is life itself. It is the most precious thing we have. Perhaps we need a different currency to return economics to its origin, Oekonomia – the management of the household, the human household, not the corporate household – in order to center our efforts on advancing life values for all living beings.

Have you learned to ask these kinds of questions – and to ask how juridical concepts like rights and duties, powers and immunities might contribute? And have you asked yourself, how a whole range of mutual obligations and a whole range of relationships that are not subject to legal enforcement might also be part of creating an ecological economics that advances life values?

[1] Charles Hamilton Houston (who charted the pathway to Brown v the Board of Education) declared that a “lawyer is either a social engineer or a parasite on society”

[2] 25 of the 56 signers of the Declaration of Independence and 32 of the 55 framers of the Constitution were lawyers.

Edgar Cahn is a distinguished legal professor. Shortly after graduating from Yale Law School in 1963, he became counsel and speech writer to Robert F. Kennedy. He created the Antioch School of Law with his late wife, Jean Camper Cahn. He is the founder of TimeBanking, a currency that rewards decency, caring, and social justice.

What Harvard Law Students Should Know About Corporations and Campaign Finance

The greatest impediment to dealing with the greatest challenges facing our nation and planet — preventing catastrophic climate change, addressing wealth and income inequality, ensuring health care for all, and much more — is concentrated corporate power. And because corporations are legal creations of the state, the problem of corporate power is, ultimately, a legal question: What legal rights, responsibilities and restraints do We the People impose on our creations?

There are a multitude of sources of corporate power, and no one approach will be sufficient to reassert popular sovereignty over our corporate creations. But amidst a host of desperately needed reforms, reducing corporations’ political power is an absolute necessity; and a key imperative means of reducing their political power is through amending the Constitution. I favor a constitutional amendment to establish that for-profit corporations do not have claim to constitutional rights broadly, but here focus on a more particular issue: an amendment to enable control of election-related spending by corporations and the corporate class.

Following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, corporations are now endowed with First Amendment political speech rights comparable to those of real, live, breathing human beings; and, more specifically, have been bestowed with the power to make unlimited expenditures from the corporate treasury to influence election outcomes (corporations do not, yet, have the right to make direct contributions to candidates). Citizens United and a host of other decisions have also empowered the super rich to devote unlimited amounts of money to outside groups aiming to influence elections (these include Super PACs, 501(c)(4) social welfare groups and trade associations); overturned spending limits; undermined effective public financing systems for elections; made it impossible to control spending by self-financing candidates; overturned a limit on the total amount of money the super rich can contribute to candidates; and much more.

The result is something very much resembling a plutocracy – rule by the wealthy elite – and a campaign finance system completely dominated by a very tiny number of corporate and super rich donors. Consider:

• The top 100 donors were responsible for more than half of all Super PAC contributions in 2012, with 2014 sure to show similar results.
• With rising income inequality, the top .01 percent of the population now take a staggering 4 percent of national income. But that same .01 percent of the population is responsible for more than 40 percent of all campaign contributions.
• Through their vast network, the Koch Brothers have announced plans to spend nearly $300 million in the 2014 elections. How consequential is this? The Koch Brothers are responsible for one in ten political advertisements on TV this election cycle.

We’ll never know how much the Koch Brothers actually spent, because their organizations are required to report only a portion of what they spend. Indeed, in the 2012 election, the Kochs ran most of their money through something called Freedom Partners – organized as a trade association, though it is effectively a political committee – that no one even knew existed until after the 2012 election was complete!

Is all of this an abstraction? No, it has very direct impact on virtually every national policy fight. Consider just the issue of climate change. The problem is well encapsulated by Senator Sheldon Whitehouse, D-Rhode Island: “The polluters give and spend money to keep polluting. … Not truth, not science, not economics, not safety, not policy, and certainly not religion, nor morality — nothing supports climate denial. Nothing except money. But in Congress, in this temple, money rules; so here I stand, in one of the last places on Earth that is still a haven to climate denial.”

The American people get this. A new poll commissioned by Public Citizen and conducted by Lake Research Partners, a Democratic polling firm, and Chesapeake Beach Consulting, a Republican polling firm, found that voters hold an unfavorable view of spending in elections by special interests and lobbyists by an astounding six to one margin. This opposition is roughly equal among Republicans, Democrats and independents. By the same six to one margin, voters say that reducing the influence of money in politics is an important issue.

The poll found that voters favor a constitutional amendment by a 61 to 28 percent margin – a more than 2-1 ratio. Presented with these arguments for and against an amendment, Republicans strongly favor the amendment — by a 54 to 36 percent margin. Other polls find even stronger support.

To understand how mind-boggling are these levels of demand for reform, consider that only three-quarters of Americans believe the earth revolves around the sun.

The public demand for action and a large-scale grassroots organizing drive – more than 550 cities and towns, and 16 states have passed resolutions or the equivalent calling for a constitutional amendment to overturn Citizens United – has forced the issue on to the agenda in Washington.

In September, the U.S. Senate voted on the Democracy for All amendment, introduced by Senator Tom Udall, D-New Mexico. The amendment, which simply states that Congress and the states shall have the authority to impose reasonable regulation on election-related spending, received 54 votes, with 42 opposed. This was short of the 60 needed to clear a procedural hurdle, as well as the 67 needed to pass a constitutional amendment.

The vote was on party lines, but there was nothing inevitable about unanimous Democratic support. In 2010, only four senators favored an amendment; only 26 did in 2012. Even this year, it was a grassroots push that ensured all Democrats would vote for the amendment.

Even though many Republican senators hate Citizens United, hate the current campaign finance system and almost surely favor an amendment, none voted for the Democracy for All amendment. This was due to the party discipline exercised by Senate Minority Leader Mitch McConnell (R-Ky.) – a degree of control that will eventually recede as public demand for action grows even stronger.

We are now amidst a period of constitutional crisis, with corporations and the super rich empowered by an activist Supreme Court to exert a stranglehold over our purported democracy. But we are also in a period of constitutional amendment ferment.

It should be a time of extraordinary excitement at law schools across the country, with fevered debates not only about whether the constitution should be amended, but how, and with what precise wording. Several Harvard Law scholars are notably engaged in the debate, but from Harvard and law schools across the country, we need way more voices, with more focused engagement. The American people are engaging in the serious and purposely effort of amending our core democratic document. They want to make the law advance popular sovereignty and democratic and equality values. They need help from the nation’s legal scholars.