Cleaning Up the Capitol

(Sneak peak at our upcoming November issue.)

As a fan of Lawrence Lessig's pioneering work on copyright and digital culture, I was saddened when, a few years back, he shifted his focus to congressional corruption and campaign finance. Efforts to take the money out of politics—as opposed to playing the underdog's hand as well as possible—had long struck me as a sucker's game. Either way, you have to beat the moneyed interests. My skepticism deepened at a dinner where Lessig presented his ideas and, in response to hostile questions, seemed unfamiliar with an extensive academic literature casting doubt on the commonsense theory that campaign contributions buy policy results.

Smart people, it turns out, learn a lot from hostile audiences. Not only does the dinner in question earn a mention in Republic, Lost, the latest fruit of Lessig's work on money in politics; Lessig has also developed a reply that packs a lot of theoretical punch and should be must-reading for anyone who's tuned out the campaign-finance debate.

Lessig moves beyond quid pro quo corruption of the sort that typified the Gilded Age and recently ensnared such congressmen as Duke Cunningham of California and William Jefferson of Louisiana. Taking a broader view of the problem, Lessig develops a concept of dependence and independence that draws on the Founding generation's obsession with the alleged corruption of Parliament at the hands of a monarchy that dispensed pensions and offices to compliant representatives. As part of this analysis, Lessig cites the anthropological concept of a "gift economy" to argue that a person can become indebted to another without any explicit agreement of a quid pro quo.

Socially and psychologically, human beings do favors for people who have done favors for them. Lobbyists, bund-lers, and campaign contributors don't need to bribe anyone to exert influence. They just need to give. By the same token (although what is at stake is often hardly a token), it would be illegal and gauche, not to mention unnecessary, for members of Congress to bargain votes explicitly for post-congressional rewards such as trade-association presidencies. Without anyone necessarily being bribed, Lessig argues, a dangerous and unseemly economy of influence has arisen in Washington that renders legislators dependent on lobbyists and all too independent from their constituents or the national interest.

Lessig takes on the model of lobbying as "legislative subsidy" developed by political scientist Richard Hall and economist Alan Deardorff as an alternative to the naive lobbying-as-bribe model. Legislators come to Washington passionate about several issues. Quickly, though, they come to depend on the economy of influence for help in advancing an agenda. They need the policy expertise, connections, public-relations machine, and all the rest that lobbyists can offer. Since this legislative subsidy is not uniformly available, the people's representatives find themselves devoting more of their time to those aspects of their agenda that moneyed interests also support. No one is bribed, but the political process is corrupted.

At the same time, Lessig argues, fund-raising is not only a way of obtaining campaign cash but a method for members of Congress to live beyond their means. Congressional political action committees engage in massive spending on dinners, parties, retreats at fancy resorts, and other fundraising events with donors. These events enable members to treat themselves to vacations and high-priced meals they couldn't otherwise afford. Abjuring the money hustle would, in practice, entail a psychologically difficult decline in the average member's standard of living in a way that would lead him to shy away from challenging his donors' interests even if the direct electoral stakes were small.

But for all that Lessig impresses with his wide-ranging and theoretically ambitious critique of the status quo, the solution he puts on the table is much less compelling. He argues for the creation of a publicly funded, clean elections system. Every voter would get a $50 "democracy voucher" and would be "free to allocate his or her democracy voucher as he or she wishes." In addition, "voters are free under this system to supplement the voucher contribution with their own contribution—up to $100 per candidate." To be eligible for the voucher money, a congressional candidate would have to agree not to accept any money beyond the $50-and-$100 system, meaning "no PAC money and no direct contributions from political parties."

The book, unfortunately, dances rather quickly from a description of this proposal to outlining a number of political strategies that Lessig believes might bring it about. This proposed remedy—enough of a heavy lift to prompt questions about its political feasibility—also seems curiously unsuited to addressing the problems that Lessig has identified.

For starters, the disappointing experience of the McCain-Feingold campaign-finance effort (of which this magazine was always, and rightly, skeptical) should remind us that it's extraordinarily difficult to get money out of politics in a manner consistent with freedom of association and expression. Nothing in this proposal would prevent vast sums from being raised and spent by nominally independent groups with an interest in campaigns. Precisely in keeping with Lessig's point about the gift economy, such spending would have a dependency—inducing influence regardless of the technical independence of the spending from the candidate.

The virtue of the voucher scheme is different. If enacted, it would flush more money into campaigns and make it easier for challengers to get off the ground in both primaries and general elections. Making electoral politics more competitive is a desirable outcome, though it might also make members of Congress more attuned than ever to opportunities for post—congressional employment.

A sounder approach would acknowledge that the American political system suffers from multiple ills. Arizona, a state that's adopted an admirable clean-elections campaign-finance law, is hardly free from special-interest influence. Instead, the combination of low-paid, part-time legislators with term limits and meager staff resources (in the Arizona House, some members get a half-time secretary) makes members dangerously dependent on the "legislative subsidy" that savvy lobbyists can provide. Problems of this kind are endemic to American state government, and Congress isn't immune to them. Better ethics rules at all levels should be paired with efforts to professionalize legislative and staff work and provide better pay. Stronger leadership and tighter party discipline, though often bemoaned, also tend to reduce interest—group power relative to ideological agendas. Lessig cites the many concessions to industry in the Affordable Care Act as examples of interest-group clout in Congress. That they were, but the fact that interest-group support delivered precisely zero Republican votes in favor of the bill highlights the limits of that clout as well. Under conditions of strong discipline, partisan and ideological considerations trump the economy of influence on high-profile bills. 

Another issue to consider is the excessive number of veto points in the American political system. It is difficult, though possible, for broad public-interest coalitions to trump concentrated interests in Congress. But the more hurdles a reform needs to clear, the more likely that momentum will dissipate. The fight to create a Consumer Financial Protection Bureau, for example, was hard on its own terms and is now being largely undermined by Republican resistance to confirming a director at a time when public attention has moved on.

Some of Lessig's strongest passages remind us of the early candidacy of Barack Obama, who impressed some and frightened others with his emphasis on good government and procedural reform. That figure disappeared after Inauguration Day, replaced by a cynical dealmaker ready to do what it took to get a few key pieces of legislation over the finish line. Under the circumstances, it's striking that he's gone on to spend so much of his administration hamstrung by an increasingly broken Congress. Republic, Lost is a powerful reminder that this problem goes deeper than poor legislative tactics or bad character. As progressives contemplate how best to pick up the pieces after recent setbacks, a robust agenda to change how business gets done in the capital needs to be part of the picture. This time, we'd better mean it.

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