Gregory's Reviews > Republic, Lost: How Money Corrupts Congress--and a Plan to Stop It
by Lawrence Lessig
“we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it”
~ James Madison, Federalist No. 39
“We have lost something profoundly important to the future of this republic. We must find a way to get it back.”
~ Lawrence Lessig
Americans are not happy with their government. Congress’ approval rating is at an all time low. The usual reason given for this high level of dissatisfaction is partisan gridlock, the perceived inability of Republicans and Democrats to work together to pass important, or any, legislation; a “do nothing” Congress where members of the opposition party are self-righteous and mean-spirited, thwarting the high ideals and good intentions of one’s own party. Seemingly, for the average citizen, it is this attitude that fuels ill will toward politicians, and voter disaffection. But there is also the judgment among many that politicians are doing the bidding of the rich and powerful for their own selfish ends and at the expense of their constituents’ best interests. For Lawrence Lessig this is a malignancy that is at the heart of the nation’s troubles and is, more ominously, a threat to the republican ideals of the Founders and the future of our representative democracy. Partisan bickering has been a feature of our politics since the beginning, and will no doubt remain so, but the indirect yet unconcealed use of political influence as a source of funding for electoral campaigns, effected by lobbyist middlemen, is a recent, and with regard to the conduct of the peoples’ business, a crippling phenomenon. Republic, Lost examines this state of affairs and offers strategies to put a stop to it.
Voters elect their representatives with the expectation that their concerns will be addressed within the halls of Congress. It is to be rightly assumed that Senators and Representatives will look out for the interests and concerns of the citizens of the state that elected them, and of the nation as a whole, and in the process honor the Constitution they swore to support and defend. This was certainly the intent of the Founders. Mr. Lessig quotes Mr. Madison in Federalist No. 57: “the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people.”* Lessig adds, “This is the work of sophisticated constitutional architects all aimed at a single end: to establish and protect a link between Congress and ‘the People alone.’ A link. A Dependency. A dependency sufficiently strong to ensure the independence of the institution.” This dependency is key to the author’s assertion of a corrupt Congress. If that dependency shifts away from the people, if the independence of Congress is thus compromised, this perhaps is indicative of a corrupt institution, one certainly that has lost its republican principles. Lessig refers to this as “dependence corruption” to distinguish it from the more venal, and outright illegal, forms.
Money, money, money; it takes huge sums of the stuff to run for public office. You and I quite simply can’t pony up; we’re broke. It’s got to come from someone (or somewhere) else. Fortunately for members, and aspiring members, of Congress, America is still the land of opportunity, populated with buyers and sellers, and overpopulated with middlemen. Politicians need money to fund their campaigns. CEOs and financiers and fat cats of every stripe crave influence over the doings of Congress. K Street is happy to act as intermediary, for a price. Politicians can get their campaigns funded with an expectation that, should the campaign be successful, the funders may wish to have a chat. No quid pro quo. Not a bribe. Nothing so crass as that and certainly nothing illegal. It is, as Lessig describes it, a gift economy. He writes, “A gift economy is a series of exchanges between two of more souls who never pretend to equate one exchange to another, but who also don’t pretend that reciprocating is unimportant—an economy in the sense that it marks repeated interactions over time, but a gift economy in the sense that it doesn’t liquidate the relationships in terms of cash.” In other words, this is “the gift that keeps on giving”. And it is enough to induce in the members of Congress a forgetfulness of their dependence on the people.
That sets out the dependence component of “dependence corruption”. What of the corruption part? Lessig is at pains to advance the notion that members of Congress are, in the very most part, honest, sincere, dedicated and hard working. These are not bad people behaving badly. The ethics may be a bit stretched but not intentionally so. Lessig again, “[P]ractically every single member of Congress is not just someone who seems decent. Practically every single member of Congress is decent. These are people who entered public life for the best possible reasons. They believe in what they do. They make enormous sacrifices in order to do what they do. They give us confidence, despite the fact that they work in an institution that has lost the public’s confidence.”
The problem then is not one of personal malfeasance but instead institutional breakdown. The corruption is systemic. It is a product of the manner in which contemporary political campaigns are conducted. To get and keep one’s job as a Senator or Representative, one has no choice but to accede to the demands of incessant fundraising. Those seeking or brokering influence take advantage and the system obliges. The institution of Congress becomes corrupt because the focus of Congress shifts away from its primary business, that of serving the people. Republic, Lost details a set of proximate causes and the many adverse consequences of this state of affairs, but the net result is that everyone loses except the wealthy and powerful. Democracy itself is corrupted. We have become a plutocracy in fact. Republic lost indeed!
The big question then becomes what can we do to regain our lost republic? Lessig suggests four strategies. The first of these involves a change in election law. The Fair Elections Now Act (currently House bill H.R.1404.IH and Senate bill S.750.IS), which is similar to “clean election” laws in several states and municipalities, would provide for public funding of a candidate’s campaign in exchange for certain restrictions on private fundraising. Strategy 1 is passage of the Fair Elections Now Act. Lessig discounts the probability of that happening in the current political environment because those charged with passing it, your Senators and Representatives, and the special interest lobbyists on whom they depend, benefit enormously from the status quo. Strategies 2 through 4 suggest plans of action to circumvent congressional reluctance to bring about Strategy 1.
On Election Day those voters who support the idea of clean elections may wish to elect a candidate who will back the Fair Elections Now Act. Lessig’s second strategy, which he calls “peaceful terrorism”, is a tactic to stand such a candidate for Congress. This candidate would run in several districts (permissible under the Constitution) against incumbent candidates; must be a prominent but disinterested citizen, not a politician; and must “remain in the race so long as the incumbent does not commit publicly to supporting citizen-owned elections”. That is, the candidate’s sole purpose is to provide a challenge to incumbent candidates who have shown opposition or lack of commitment to the Fair Elections Now Act or other clean election efforts and force a reversal, at which time the candidate will withdraw from the race. These citizen-candidates would be non-politicians playing a political game. There are at least three possible outcomes from Strategy 2. Voters seldom take single-issue candidates seriously and the candidate’s non-politician status will only reinforce this predilection. The astute incumbent will use this to his advantage. If the challenger is not perceived as a thoughtful and committed future member of Congress, willing to tackle all the issues that that job entails, then the wary voter is not likely to assent, and the risk to the incumbent is neutralized. The second possible outcome has the challenger actually wining the election. Now what? Part of the candidate’s commitment was to be “a disinterested citizen whose only objective is to change the system” and not have “the objective of becoming a congressman or other politician.” What we need least of all are public officials who are not fully committed to their constituents. (This is an even bigger issue when considering Strategy 3 below.) The third possible outcome would be the intended one. The incumbent changes her tune and the “peaceful terrorist” goes home. Lessig gives this strategy about a 5% chance of success. Small reward for what needs be a considerable effort.
The third strategy is a corollary of the second, this time involving the presidential race. According to this strategy, the ideal candidate for the White House, again a non-politician, would pledge if elected to “hold Congress hostage until it passes fundamental reform” and “resign once that reform is enacted.” In Lessig’s imagination this commitment would put any challengers on the defensive and encourage the opposition party to adopt an identical strategy. The American public being fully engaged in the ensuing debate and hungry for reform would overwhelmingly approve. Both parties would acquiesce to voter sentiment, and we would, in the end, elect an instant lame duck president. (I have, of course, left out many important details of this bizarre plan. I will leave it to the interested reader to suss these out.) This strategy presents the same problems as Strategy 2. Will the electorate support a single-issue candidate for president, especially one that does not intent to fulfill the duties of that office? Will the opposition party really promote a like candidate or will they use the shortcomings of this strategy to their advantage? But the most important pitfall of Strategy 3 is that it involves what is universally regarded as the “most powerful office in the world”. I think that the American people would recognize that to trifle with the presidency in such a way in a time of global chaos would be deeply irresponsible. To leave the world in the lurch while we play domestic political games is dangerous business. Lessig briefly touches on this issue but does not resolve it satisfactorily. But there is another related matter that must be addressed. Regardless of the occupant, the Office of the President of the United States commands respect. To put it to such a use would be regarded by many, most I think, as demeaning. The respect that the presidency engenders is an important national asset that when lost, as history has shown, weakens the president’s authority and may portend grave consequences. That is a high price for any reform. There must be a better way.
Finally, Strategy 4 invokes the untested convention clause of the Constitution. Article V provides two alternatives for proposing amendments to the Constitution. The first, which has been used successfully twenty-seven times when you include the Bill of Rights, requires a two-thirds approval of the House. The second option, which has never been utilized, requires two-thirds of the states to call for a constitutional convention. In either case an amendment doesn’t become part of the Constitution until ratified by three fourths of the states. The Constitution was itself a product of a constitutional convention whose stated purpose was to amend the Articles of Confederation, the original organizing document of the United States, but whose efforts instead resulted in an entirely original and, one should add, enduring federal government. That the founders did not restrict themselves to the stated purpose of their convention should give us pause. Nobody knows where a new constitutional convention would take us. Thomas Jefferson believed that a constitution should be a generational document, a concept that is still a subject of debate. Perhaps the times are ripe for the current generation to revisit our Constitution with an eye toward fixing its perceived flaws or, taking Mr. Jefferson’s famous words to heart, altering or abolishing it. Perhaps not! Except for the example of the current document itself this is unexplored territory. And that example suggests caution; that it worked out well the first time is no guarantee. We live in different times and liberty is still a point of contention. Lessig addresses these concerns and for that I refer you to his book.
Mr. Lessig’s deep anxiety over the current state of our politics is nothing if not sincere. And he has obviously given his four strategies a great deal of thought. But are they feasible? He freely admits that none are likely to succeed on their own. But I think he misses the most obvious and realistic strategy. The consent of the governed is the foundational philosophy of our republic. The vote is the most powerful tool each of us has to ensure that consent. (In a recent essay I outlined some ideas about how to make the most effective use one’s vote.) On Election Day you and I get to do the hiring and firing of our elective office holders. Each of the strategies outlined above would require a huge effort on the part of many in and out of government. Consider instead one humongous grassroots effort to simply vote out of office any member of Congress who has not made a high priority commitment to passage of the Fair Elections Now Act. Give all incumbents the boot unless their support for clean elections is already on record. Put all challengers on notice that campaign reform is not just an issue, it is the issue. If our Senators and Representatives start losing their jobs because they refuse to address this issue with complete and unreserved seriousness then perhaps the message will finally sink in. The threat of a pink slip is powerful incentive. No successful challenger is likely to second-guess the voter knowing that her predecessor’s career was cut short because of opposition or indifference to reform. There are many examples to follow to make this a successful grassroots effort. Rock the Vote, MoveOn.org, the Occupy Movement, the Tea Party, even the Arab Spring provide contemporary models. Unlike Lawrence Lessig’s top-down strategies, involving as they do political party deal-making, stifled candidates and constitutional tinkering, a voter revolt would be bottom-up, a revolution of and by the people.
First things first. The consent of the governed. If we the people could bring about campaign reform using the power of the vote Mr. Madison would be proud. As I’m sure would Mr. Lessig.
* Until 1913, when the 17th Amendment was ratified, Senators were appointed by each state’s legislature.