The Sifted Bookshelf: Republic, Lost by Lawrence Lessig

In each of our last three elections — 2006, 2008, and 2010 — the electorate called for sweeping change. 2006 was a rejection of the Iraq War, which President Bush then escalated and President Obama only recently managed to end. 2008 was a more general rejection of Bush policies, many of which President Obama has continued. 2010 was a sweep in the other direction, in favor of Tea Party candidates who wanted to slash government spending. That also has not happened, except in fairly small, symbolic ways.

The lesson seems clear: Whether voters look right or left for change, they don’t get it. While it’s wrong to say that there’s no difference between the two major parties, either party’s ability to deliver the change it promises is limited.

Democracy doesn’t seem to work any more. But why?

The problem. Lessig’s book Republic, Lost frames the problem brilliantly. Its essence, he claims, is that our laws ban one kind of corruption, but we actually have a different kind. Obvious as that corruption might be to any reasonable observer, it is invisible to the law.

Our laws aim — and mostly succeed — at stopping quid pro quo corruption. Rod Blagojevich, for example. If you’re explicitly selling political favors for money, you’re clearly breaking the law and stand a good chance of getting caught.

If all quid-pro-quo corruption ended tomorrow, though, you’d barely notice the difference, because a completely different kind of corruption dominates our system: dependence corruption. Politicians can’t get re-elected without big contributions from the same special interests that are asking for favors. They do those favors not in exchange for an explicit pay-off, but to stay on the contributors’ good side. Rather than an explicit I’ll-do-this-if-you-do-that, politicians and lobbyists work on maintaining mutually beneficial relationships.

Lessig describes this by borrowing a term from the anthropologists: Washington isn’t an exchange economy, it’s a gift economy. He quotes 20th-century Senator Paul Douglas:

The enticer does not generally pay money directly to the public representative. He tries instead by a series of favors to put the public official under such a feeling of personal obligation that the latter gradually loses his sense of mission to the public and comes to feel that his first loyalties are to his private benefactors and patrons.

Nothing about that is illegal, and the politicians may not even feel corrupt, because over time their points of view align (like needles in a magnetic field) with the special interests that support them. Who can say whether Senator Inhofe blocks action against global warming out of conviction or because the fossil fuel industry supports his campaign? The Senator himself may not know.

But the effect is identical to quid-pro-quo corruption: Politicians come to represent the Funders rather than the People, and government revolves around their needs rather than ours.

Nicholas Kristof had a tremendous example a week ago: Furniture has toxic fire-retardant chemicals in it, not because they will do any good in case of fire, but because three companies get richer. For another example, see the discussions of food policy and of Tagg Romney’s business career elsewhere in today’s Sift.

Solutions. Lessig recognizes that you can’t solve this problem by enacting stricter rules and putting rule-breakers in jail. It’s systemic; the problem isn’t bad people. People with high ideals are either corrupted or flushed out of the system, and the path of their corruption starts with actions that aren’t that different from what politicians are supposed to do: help constituents and then ask for their help at election time.

But once you have the problem framed correctly — politicians have become dependent on the Funders rather than the People — the possible answers are clear: Either you get the big money out of politics completely, or you find some way for the People to become the Funders.

The first path, where you ban both large political contributions to candidates and large “independent” expenditures like Super-PACs or “issue-oriented” spending by organizations like the Chamber of Commerce or big unions, goes against Lessig’s libertarian/anarchist streak. (He considers himself a liberal now, but was a young Reagan delegate to the Republican Convention of 1980. That younger-self voice still resounds inside his head.)

The problem is that (bad as it sounds to the liberal ear) “Money is speech” is not entirely wrong. If you control money too tightly, you’re going to stop some kinds of speech from getting out. Worse, in a pure public-funding scheme, it’s easy to wind up with a system that institutionalizes the two major parties, gives incumbents a built-in advantage, and makes radical change more difficult rather than less.

Instead, Lessig favors changing the incentives rather than banning spending outright. His Grant and Franklin proposal (named after the figures on the $50 and $100 bills) calls for the government to give each voter a voucher (he suggests $50) that they can contribute to congressional campaigns.

Campaigns can only use the vouchers, though, if they are committed to a fairly low cap on additional individual contributions. (He suggests $100.) But there is no cap on overall expenditures — if you can collect a vast war-chest from small donors, good for you.

In this way, government funding would make small-contribution campaigns competitive while still allowing individual contributors to decide where the money goes. But candidates who want to take larger donations and individuals who want to give them are not criminalized.

At a recent League of Women Voters forum in Concord, MA, Lessig stated the goal like this:

We’re aiming for a world where it’s the broad range of Americans who are contributing.

In other words, the Funders become more representative of the People rather than the special interests.

In addition, he wants to limit (but not eliminate) spending by groups that work outside the candidates’ campaigns. Given the current Supreme Court rulings, that will require a constitutional amendment.

Walking While Chewing Gum. Interestingly, he does not focus on an amendment to undo the Citizens United ruling.

The day before Citizens United was decided, our democracy was already broken. Citizens United may have shocked the body, but the body was already cold.

Because it neither bans contributions nor involves the government in setting spending limits or choosing who gets the money, Lessig believes Grant and Franklin gets around recent Supreme Court decisions, and so it doesn’t put all the eggs into one constitutional-amendment basket.

I think this is wise, and that the examples of the Equal Rights Amendment and Human Life Amendment apply. Constitutional amendments are good devices for galvanizing popular movements, but often the real work gets done in legislation that spins out of the movement, even if the amendment itself doesn’t pass.

Bipartisanship. Often to the annoyance of his fellow liberals, Lessig frames the issue in a bipartisan way: Whatever kind of change your movement wants, liberal or conservative, you won’t get it in the current system.

As the desire for reform grows, the Powers That Be will undoubtedly try to keep it split between liberal reform and conservative reform. But Left and Right recognize a common problem: Concentration of power. The Left sees it as corporate power and the Right as government power. But both sides see the concentration and the corrupt practices that maintain it. The challenge is to come together to fix that corruption, without being divided by fights that would be decided better afterwards, on a playing field more like the republic the Founders envisioned.

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  • Kim Cooper  On June 2, 2012 at 1:13 am

    So, are you saying you think Lessig’s solution is a good one?

    • weeklysift  On June 2, 2012 at 8:08 am

      Yeah, I am. It’s not the only way to attack the problem, but I think it would help a lot.


  • By Enemies of Capitalism « The Weekly Sift on May 28, 2012 at 1:25 pm

    […] The Sifted Bookshelf: Republic, Lost by Lawrence Lessig. The last three elections have all been calls for sweeping change, and neither party has been able to deliver it. Why doesn’t democracy work any more? And what can be done about it? […]

  • By The Sifted Books of 2012 « The Weekly Sift on December 31, 2012 at 6:32 am

    […] Nancy Cohen, Drift by Rachel Maddow, With Liberty and Justice for Some by Glenn Greenwald, Republic, Lost by Lawrence Lessig, Twilight of the Elites by Chris […]

  • […] can afford to hire good lobbyists. (If you want a more detailed discussion of the problem, read Republic, Lost by Lawrence […]

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