Lessig on the Effects of Elected Officials' Dependency Problem

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Sat, 11/05/2011 - 07:52

Campaign Finance

Lawrence Lessig's excellent new book <a href="http://books.google.com/books?id=pOd9J3vvWhkC&printsec=frontcover#v=one…; target="”_blank”">Republic,

Lost: How Money Corrupts Congress—and a Plan to Stop It</a>
(Twelve, Oct. 5, 2011) is about Congress and mostly about campaign
finance, but it is also an important look at institutional
corruption that has some valuable things to say that are relevant to
local government ethics. 
 
Lessig, who is director of the Edmond J.
Safra Foundation Center for Ethics at Harvard University,
came to government ethics in an interesting fashion. As a law
professor specializing in copyright law, he sought to make
out-of-print but copyrighted books available to the public. But his
efforts, as reasonable, as clearly in the public interest, and as
consistent with the Constitution (which actually mentions copyright)
as can be, went nowhere. Instead, copyrights were extended more and
more. 
 
Institutional Corruption 
Lessig came to realize that what caused these extensions,
institutional corruption, is "the gateway problem: until we solve
it, we won't solve any number of other critical problems." True
reform, in any area, is impossible as long as the current
institutional situation remains. Therefore, he switched his focus
from copyright to government ethics, with an emphasis on campaign
finance.

The problem, as Lessig puts it, is not that there are evil people
ruining our country, but rather that there are ordinary people
working in an institution corrupted in such a way that a great deal
of what happens is distorted from what was intended to happen when our governments were formed. It isn't that
no laws are passed or regulations promulgated (although many are
blocked), it is that these laws and regulations are so much affected
by those who benefit (or may be harmed) by them (and by their
lobbyists) that they are written differently than they otherwise
would. They are written in a way to benefit those who have the
access and influence. In fact, they are often written by the people
they regulate. 
 
It is not only laws and regulations that are over-influenced by
those who benefit from them. It is also contracts, permit
applications, grant applications, all those documents that, for most
of us, simply exist. Those documents that get very little press, and
whose authorship is not accomplished or, often, even discussed at
public meetings. 
 
A Dependency 
Lessig uses an excellent word for what is wrong here:
dependency. Some influences are so strong, they rise to the level of
a dependency in that, like alcohol, drugs, or the Internet, they
distract government officials, particularly elected officials, from
their job, which is to serve the public. Lessig asserts that when
influences as a whole, not any particular influence, rise to the
level of dependency, "those responsible for the effectiveness of the
institution must ask whether that dependency too severely weakens
the independence of the institution. If they don't ask this
question, then they betray the institution they serve." 
 
This is strong language but, I think, appropriate. Officials have an
obligation not to become dependent on anyone in a way that distorts
the operation of their body or agency. If they find there is a
dependency, they must find a way to rid themselves of it. 
 
When you read Lessig's description of a dependency, you see how apt a
description it is for what happens in government:<ul>

[A] dependency develops over time; it sets a pattern of interaction
that builds upon itself; it develops a resistance to breaking that
pattern; it feeds a need that some find easier to resist than
others; satisfying that need creates its own reward; that reward
makes giving up the dependency difficult; for some, it makes it
impossible.</ul>

In his talk of how raising funds for campaigns has become a
dependency, Lessig notes how similar politicians' talk is to that of
other addicts: "I can handle it ... It isn't affecting my work
... I can't be addicted [or corrupted or bought]." In other words,
the principal response is not thoughtful or analytical, but denial.
The principal response assumes that the statement is an accusation
regarding the politician's personal integrity, when it is really
about a dependency shared by nearly all the politician's colleagues.
It is rarely responded to as an institutional issue, but instead as
a personal issue, and then primarily in the language of denial. 
 
Lessig includes a fascinating quote from former representative Tony
Coelho, who does touch on the difference between the personal and
the institutional, but still seems in denial:<ul>

The press always tries . . . to say that you've been bought out. I
don't buy that. . . . I think that the process buys you out. . . . I
think there's a big difference there."</ul>

But is there a big difference to the public? Does the public have
more trust in a politician who gives preferential treatment to those
with the money to help keep him in power (or help someone else
replace him) than in a politician who sells a vote on a city
contract to a contributor or, for that matter, a politican who helps
his brother get a contract with the city? No. The law may
differentiate between these situations, but citizens do not. 
 
The dependency that concerned the founding fathers was Parliament's
dependency on the king or, in the future, a president or foreign
country (see <a href="http://www.usconstitution.net/xconst_A1Sec9.html" target="”_blank”">Article I, Section 9 of the Constitution</a>). Since then,
the problematic dependencies have changed. 
 
Lessig quotes from Federalist 52,
that a representative democracy is to be "dependent upon the People
alone." Corruption can be defined as a competing dependency. That is
the current situation. Not bad people taking money in bags, but
ordinary people dependent on taking money in order to get elected,
and using the power of their position to do what it takes to get
more of that money. This dependency is not on "the People," whom an
elected official is supposed to represent, but on a tiny percentage
of people who benefit specially from government decisions, whom an
elected official is not supposed to represent. It is not unequal
influence that bothers Lessig as much as preserving electoral
influence. 
 
The opposite of dependency is independence, as in the following
statement made by San Diego Law School professor Frank Partnoy: "The
only discernible difference between [Jim] Leach and other members of
Congress was that Leach did not receive financial support from Wall
Street. … Because he refused to accept contributions from political
action committees, Leach could speak with an independent mind." 
 
The Effects of the Dependency 
The result of this dependency is primarily to preserve the status
quo, that is, to protect the private interests that are already
given preferential treatment, and to protect the incumbency of those
in power, that is, those who have the most to offer the private
interests. 
 
What has happened in a world where so many people are dependent on
raising large amounts of funds is that it is no longer embarrassing
for elected officials to take money from those they regulate and do business with. In
fact, it is a sign of status, a sign that you have the power
necessary to raise these funds. What is apparently improper to the
rest of the world is, within the political world, what everyone is
striving to be able to do. 
 
It is not that money buys votes (although the prospect of money may
very well do this, leading to what Lessig calls a "shape-shifting
dance"). In most cases, the elected official was going to vote for
it anyway. What money buys is access, prioritizing (the agenda),
allocation of effort, killing a bill or ordinance, and the details
(which is, of course, where "the devil is" ). In order to get the
money, all of these aspects of the legislative process are
distorted. The question Lessig asks again and again about the
influence of spending on various policies is, "Does it weaken your
ability to believe that the current policy makes sense?" 
 
Is access all that important? After all, we can all write our
representatives, and even meet them at their local office. But a different level of access
can mean a great deal. Lessig notes that when he spoke with members
of Congress about copyright issues, the problem was not that they
did not agree with him. It was that "members didn't understand that
there was another side to the issue. They had never even heard it."
They thought the issue was for or against copyright, not the details
of copyright law, which were handled by lobbyists. 
 
As for prioritizing, it's the relatively minor issues that produce
the most lobbying. Few citizens care much about copyright law,
except when it gets in the way of free downloads. But lobbying
changes priorities, so that copyright bills keep coming before
Congress. And getting passed. Even though they clearly go against
the wishes of the founding fathers (see <a href="http://www.usconstitution.net/xconst_A1Sec8.html" target="”_blank”">Article 1, Section 8, Par. 8
of the Constitution</a>). 
 
At the local level, think about the difference between spending on new school buildings (with lots of interested contractors) versus decreasing class size or subsidizing the training of teachers (with one or two interested teacher unions, and lots of parents). 
 
As for killing a bill or ordinance, it's important to recognize that
when people say money does not buy votes, they are limiting
influence to the tip of the iceberg. There are, as Lessig points
out, a million ways to kill a bill or ordinance, completely or in
part, and that is where most of legislative activity occurs. Voting, which is where our attention is always drawn, is usually the
least meaningful part of the process. In fact, nothing is easier than voting for a good cause that you know will never get to the floor of the legislative body. This happens all the time with ethics laws. 
 
As for lobbying, Lessig notes what happens to an institution when
what was once considered unethical, what was once done in an
underhanded manner, with money in envelopes and secret
conversations, becomes the norm, done with checks and conversations
that are sometimes even logged and placed online for the world to
see. The bagman is now the lobbyist or bundler. Better that there be
disclosure, but worse that the conduct is so common and respectable.
"[A]s the practice has become more professional, its effect on our
democracy has become more systemic." 
 
A Gift Economy 
There is no need for quid pro quos. Lessig refers to campaign
finance as a gift economy, "a series of exchanges between two or
more souls who never pretend to equate one exchange to another, but
who also don't pretend that reciprocating is unimportant … And the
exchanges that happen within gift economies try to hide their
character as exchanges by tying so much of the exchange to the
relationship. ... Gift giving in relationship-based economies is a
way to express and to build relationships. It's not a system to
transfer wealth. ... Gifts are moves in a game; they oblige others." This is why government ethics is concerned so much with relationships and obligations, rather than with money. (see <a href="http://www.cityethics.org/node/569" target="”_blank”">my 2008 blog post</a>
on politics as a gift economy) 
 
The fact is that the public only gives one gift to an elected
official, and this only happens every so many years. In the interim,
as well as in order to get the public's support, gifts are given,
favors are made, and many of them do not involve money, at least not
directly (there is a lot of advice, research, drafting, campaign
work, transportation, and bundling). The gifts and favors are not
meant to "buy" the official, but to make her feel obligated to the
giver more than to the community. 
 
Lessig supports public campaign financing as the best solution to
the dependency problem. He notes that public financing reduces the
gap between the funders and the people, because the people become
the principal funders (at least assuming that all the money doesn't
flow into independent expenditures). To get enough funds to get
elected, under the unusual financing system Lessig contemplates, a
candidate would have to reach out not to individuals who benefit
directly from the government, but to everyone. 
 
Other Observations 
Lessig describes leadership PACs as akin to representatives handing
each other $5,000 checks in the Capitol. They are "the glue that
keeps the system together." At the local level, these PACs can be
extremely important. They allow an incumbent
to use his power over those who benefit from government to get money with which to support other
candidates, to create a network of obligations that, like those to
lobbyists, have nothing to do with the public. These layers of obligation bring everyone into the system from the very start. 
 
One final thing. Lessig notes that our founding fathers saw
citizenship itself as a public office. "As the holder of that
office, each of us is charged with voting not to advance our own
private interests, but instead to advance the public's interest."
This is something that has long been forgotten. One wonders whether,
if each of us was to think like a public official, we would expect,
and get, more from our public officials. 
 
There's a lot more to Lessig's book that is irrelevant to local
government ethics. But his portrayal of problems as well as his
solutions are original and thought-provoking. I highly recommend the book. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

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