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Republic, Regained

By from the February 2012 issue

A serious liberal has written a book conservatives should read.

Republic, Lost: How Money Corrupts Congress — and a Plan to Stop It
By Lawrence Lessig
(Twelve, 383 pages, $26.99)

Larry Lessig, a liberal at Harvard Law School, has written a book he thinks conservatives should read. And he’s right.

Lessig takes conservative concerns seriously. He likes free trade and deplores the costs trade barriers impose on consumers. He thinks farm subsidies absurd, and the influence of teachers’ unions deplorable. He even finds nice things to say about the Tea Party. “The reform party in America is not the Democratic Party. We had that moniker on January 20, 2009, Obama then fumbled it, and the Tea Party picked it up.” What Obama gave the country, he says, was a classic bait and switch. We were promised hope and change, but got something very different.

Lessig concedes all that, and then challenges conservatives with the following question: if you agree with me about this, then mustn’t you also decry the influence of big business in politics? Corporations can distort policies in just the same way as the trial lawyers, and both are harmful, and both constitute a form of corruption.

Lessig distinguishes between two different kinds of corruption. Type I corruption is that of a Rod Blagojevich who peddles his political influence, or a bribe-taking William (“Dollar Bill”) Jefferson. These are crimes, and dealt with adequately by the law. What the law fails to sanction is what Lessig calls Type II corruption, where money is donated to a political campaign in the expectation of favors to be received, with one gift inviting a return gift, especially between repeat players.

Most of Lessig’s book is given to a description of Type II corruption, which he also calls “dependence corruption.” This includes problems on which the left has focused more closely than the right, such as costly political campaigns which distract congressmen from the business of legislating and the dismaying tendency of congressmen to become lobbyists when they leave office. That’s something conservatives should worry about, says Lessig. “From the birth of conservative thought,” he notes, “conservatives have always objected to people getting rich because of the government.”

Does Lessig have our number, then? He is a practitioner of third way politics, which seeks to find fault with both sides in the debate. If liberals are AWOL on some policies, so too he says are the conservatives, specifically the distortions that result from corporate political spending. However, that doesn’t describe the Tea Party movement, which has focused attention on wasteful policies across the board, including subsidies for corporate welfare bums. That is a problem of crony capitalism, which conservatives recognized well before any liberal. Indeed, no administration has rewarded its corporate friends more than the current one, with loan guarantees and bailouts to firms which donate to the Democratic Party. If we’re well on our way to Peronism, we know who has brought us here.

So what’s the answer? For Lessig, it’s campaign finance reform. Like many liberals, he focuses on process, on inputs, on how politicians are elected. He issues the following challenge to conservatives: Do you really think you can reduce the size of government, simplify the tax code, and get government out of markets, given our present level of campaign spending? If so, you’re being naïve. The entrenched interests will win in the end, as they always have.

Is he right? The evidence about the effect of money on politics is mixed, as Lessig admits. His Type II corruption does not come down to Type I corruption. Campaign contributions aren’t like bribes. As well, restrictions on campaign finance have been observed to backfire: they tend to entrench incumbents and in doing so magnify the problems of which Lessig complains.

Conservatives are properly cynical about the liberals’ concern for process and apparent indifference to outcomes, about a Democratic Party that wraps itself around the banner of campaign finance reform and then cuts deals with public sector unions, trial lawyers, and sham green energy firms. Even when proposed by people of obvious good faith, such as Lessig, campaign finance reform has been employed as a stick to beat one side only in the debate. Remember the storm of protest from the mainstream media when Obama turned down spending limits and public campaign financing in the 2008 election? Funny, neither do I. Obama was the first presidential candidate to decline public financing since 1976 and raised $750 million from private sources. John McCain stuck to public financing and received only $84 million. One isn’t surprised when one’s opponents game the system. What bothers is when they sound pious in doing so. That raises hypocrisy to the level of an art form.

THAT SAID Lessig’s message is one conservatives should find welcome, for it encourages the belief that a coalition of givers can defeat a coalition of takers, that Americans of good will can unite to defeat the concentrated groups which use politics to transfer money to themselves. This belief underlies Lessig’s policy prescriptions, even if most of these, as Lessig admits, are long shots. This includes his most interesting proposal, that a Constitutional Convention be called under the Constitution’s Article V.

Congress must call a “ConCon” when 34 states so request, and (simplifying a little) the amendments so adopted become part of the Constitution when ratified by the legislatures or state conventions of 38 states. The subject is attracting attention across the political aisle, and last September Lessig co-sponsored a Harvard Law School conference on ConCons with (remarkably) the Tea Party Patriots. While liberals are now exploring the idea, the ConCon movement in its most recent incarnation was a conservative initiative. By 1989, 32 states had called for a ConCon to adopt a balanced budget amendment, two short of the 34 states required by Article V. Since then three states have rescinded their petitions, but some members of the Tea Party want to restart the process.

Many conservatives fear that a ConCon would be a “runaway” convention, which might entirely rewrite the Constitution, just as the Philadelphia Convention of 1787 entirely erased the Articles of Confederation. Given the requirement of ratification by 38 states, however, that seems unlikely. All it would take is one branch in each of 13 states to kill an amendment, not a high bar given the polarized nature of contemporary politics.

Even amongst political allies there is bound to be much disagreement about just which reforms to adopt. That was certainly true of the 1787 Convention. What led to the compromise that gave us the Constitution was the Framers’ belief that the Articles of Confederation were fatally flawed, and that they had to agree on something to replace them. That was also why the Constitution was ratified: it was that or nothing. But that’s not where we are now. Before a ConCon could take off, things would have to get a lot worse. That said, many think that the country is in crisis, that the political gridlock in Washington hurts the country, and that things are indeed going to get worse. If so, we’ll be hearing more about ConCons, and Lessig’s excellent book will be a good place to start.

About the Author

F.H. Buckley is Foundation Professor at the George Mason University School of Law. 

Letter to the Editor View all comments (51) |

Carey Hagen| 2.17.12 @ 6:24AM

The issue is not just corporations, but all corporatism, that includes labor unions and special interest groups also. The contitution was created to garantee the rights of individuals.

Polititians like corporate entities... they provide one stop shopping to get money and power. As were have been sliced and diced into groups, we have lost our rights as individuals.

Bob K.| 2.17.12 @ 10:16AM

It is not just money that is the problem. It is also the Corporate Media/Government Axis that has to shoulder most of the blame for this. Without all the money that is poured into their coffers during the 18 month presidential campaigns we have every 4 years much of these problems would not exist. The people who profit from this have a vested interest in keeping things the same.

This review, and I expect also the book and it's author, does not mention the corporations which have these strangleholds on the media. Those corporations which own newspapers, television and radio stations, magazines and publishing houses.

Those that hire politicians like George Stephanopoulos as "journalists."

capatolistmom| 2.17.12 @ 2:09PM

I don't like big business or big government!! They both wield too much power and be it with money or "Solyndra" type projects, the system has become blatantly corrupt.

The one area overlooked in your article is the incredible bias of the Main stream Media!! Without an objective look at everything we will continue to have corruption and undo influence. To your point, the recent public display of G. Stephanopoulos at the ABC debate was a beautiful example of incompetent "journalism"!! He needs to be highlight for his impartiality and ignorance at every level of the discussion. He is a poster boy for incomplete journalism. I will not watch him anymore!! He can't be trusted. Did you know that that stupid question was actually a bet with Diane Sawyer? How stupid do they think we are and what an abuse of the debate process. ABC should not be allowed to moderate any more "so called Objective" debates.

RJ| 2.17.12 @ 3:56PM

You nailed it, Bob K.

Campaign finance reform is too weak a tool to reform government. We have tried it for years and haven't gotten good results. I think they pass those things only after they have figured out how to get around them and then there are candidates who flout the law without much consequence.

Maddox| 2.17.12 @ 6:46AM

If we are relying on corrupt individuals in Congress and the regime to pass laws that stop the corruption that enriches them, we are without hope for our society. The genie is out of the bottle and he ain't going back without being forced.

Anthony| 2.17.12 @ 9:48AM

Exactly Maddox! Yes money corrupts, however the flow of money would be significantly reduced if Term Limits were in place.
As long as power continues to reside in the permanent political class, money will flow like water.
This is not to say that Term Limits are the ultimate panacea. There are no perfect solutions when dealing with imperfect human beings, but the constant shaking up of the power structure will stanch the flow of the big dollars.
Congress will never legislate itself out of the power structure, which is why we Americans need to do ourselves, or else America is finished.

clifford smith| 2.17.12 @ 6:50AM

Another Reason for Limited Government, Limiting Corruption
18Nov2011 – CCS

“Power corrupts. Absolute power corrupts absolutely,” goes the famous quote. And since governmental corruption would seem to offer competion for the mantle of “the oldest profession,” CCS offers a variation on a theme: “Limited government provides limited corruption opportunities. Big government provides big corruption opportunities.”

CCS suggests, don’t add more government spending programs and more anti-corruption laws which will just provide more opportunities for corruption to work its pervasive evil. Rather, reduce corruption by limiting the scope of government and hence limit corruption opportunities.

Maybe the founding fathers who wrote the Constitution were on to something.

Layne S| 2.17.12 @ 7:54AM

Agree 100%!!

JimH| 2.17.12 @ 8:54AM

Exactly so. If you would limit influence peddling, limit the influence available to peddle.

RJ| 2.17.12 @ 4:15PM

I agree too.

W| 2.17.12 @ 7:26AM

Our constitution is fine if Congress, the Courts, and presdident would follow it.
Liberals love "campaign finance reform" that creates another agency to regulate political speech, and we end up with McCain Finegold.

skip| 2.17.12 @ 12:14PM

~

"Reason and experience both forbid us to expect national morality can prevail in exclusion of religious principle." (George Washington)

~

"Our Constitution was made for a moral and religious people. It is wholly inadequate to the government of any other." (John Adams)

~

"A Republic, if you can keep it." (Ben Franklin)

~

Our Constitution is fine if We the People of the United States would, with intelligence and honesty based on reason and experience devoid of emotional prattle, morally keep it.

The Founding Fathers accounted for the tyranny oppressing our liberty we are experiencing, and understood social, political, and economic rights were each essential to liberty.

Repeal the Seventeenth Amendment, and then every two years every citizen - from that body of citizens entitled to vote - can limit the term of that Representative of the House who selected their Senator to poor effect, was influenced by free speech expressed through money to poor effect, or utilized their term in office to campaign for reelection instead of legislating to good cause.

Old Soldier| 2.17.12 @ 7:35AM

Glad to see a liberal who has generally come to his senses. I don't disagree that too much money in the election process - buying elections and influence is a tremendous problem.

I don't like the liberal solution of revoking First Amendment rights of individuals and corporations. They are attacking the wrong side of the equation.

Term limiting Congressmen and Senators would also decrease the influence of money. When you only have one re-election to worry about, there isn't much influence to buy.

richard ryan| 2.17.12 @ 8:30AM

This author is not a liberal, at least in the modern sense. He sounds like he has some reasonable ideas. Therefore he is not a liberal.

Bob| 2.17.12 @ 11:58AM

He's a law professor at Harvard. Could've fooled me.

weaverofdreams_2000| 2.17.12 @ 10:46AM

Old Soldier writes "When you only have one re-election to worry about, there isn't much influence to buy."

So I take it no one is trying to influence the President??

Cheers!

weaverofdreams_2000| 2.17.12 @ 10:50AM

Further to the above, I would add that the solution of term limits may beget a new problem of its own -- the likelihood of an increase in "Type I" corruption. (i.e. if I'm only going to be here a short time, I better make the most of it!).

Cheers!

Bob| 2.17.12 @ 11:59AM

At least Type I corruption is a criminal act punishable by law.

PattyMor| 2.17.12 @ 8:02AM

Do you seriously think the corruptocrats will reform the very same system that they benefit from? No they seek money and power to distribute money and power.

I predict (gloomily) that no reforms will be made until the whole system collapses. While the debt clock ticks away, the corrupts are busily working on reducing the Social Security Taxes. Welfare, food stamps, Social Security, Medicare, Medicaid forever and day (and on a credit credit card).

joetentpeg| 2.17.12 @ 8:04AM

Agreed!
Halve their pay, fire their staffs, empty their offices of the 50" flatscreens and mahogany desks, billet them at FT. Belvoir/FT. Meyer/Marine Corps Barracks, and let them take the bus/metro to the capitol building.

joetentpeg| 2.17.12 @ 8:04AM

Agreed!
Halve their pay, fire their staffs, empty their offices of the 50" flatscreens and mahogany desks, billet them at FT. Belvoir/FT. Meyer/Marine Corps Barracks, and let them take the bus/metro to the capitol building.

Nancy in NC| 2.17.12 @ 8:28AM

It was worth saying twice.

I would add: term limits, no retirement, no perks, no free health care. Serving should be an honor rather than a way to become wealthy. The wealthy should forego all pay and allowances. We need more George Washingtons and no Obamas and Pelosis.

Until we can elect moral, upstanding people we are doomed. Until we become a moral, upstanding citizenry we are doomed.

Allan| 2.17.12 @ 2:39PM

I had another idea similar to yours. Move all compensation for reps to their respective states. No more public trough. The state legislatures for each rep determines their compensation and the aides they need. Two terms and they are out and only get what comparable benefits are available in there respective states and commercial areas. They can transfer there 4yrs of retirement bennies to there private one at there place of employment. Payable at there private rate. No lifetime pensions or medical benefits.

Jill Johnson| 2.17.12 @ 8:07AM

Nice that a liberal would change his mind about Obama's hope and change. 'Twould have been so much better if he had seen beforehand, like the rest of us, that Obama was a pandering Marxist and a destroyer.

POST American| 2.17.12 @ 9:12AM

---Nice book ---for 1990.

ALAS, merely DIS--traction in this,
the 11th hour of the CFR RED China
handover, sellout, TREASON and
---------TOTAL EUGENICS OP--------.

TIME TO MOVE

Patrick| 2.17.12 @ 10:18AM

Thank you for the thoughtful summary and critique. Lessig makes a number of good points, but we don't need to change a wonderful Constitution to fix this mess.

We the People already have the ability to fix this problem but we have been PC'd into passivity. We created this problem by electing poor leaders. Everyone single one of us has a bully pulpit (the Internet) and we need to grab our megaphones and insist on change. If Washington doesn't hear the noise, we exercise our democratic right to vote them out.

KML| 2.17.12 @ 11:15AM

I don't believe a ConCon is required, nor do I believe we can trust anyone currently in office to ratify a constitution that, first and foremost, upholds and protects the sovereignty of the individual. A Democrat would never support such a constitution, and there are very few Republicans who believe the power of the state should be curbed. No, I believe we would be playing right into the hands of the big government statists and Liberals. Too many in Washington believe the answer to the country's ills is more government. If the Constitution needs to be changed, there is an amendment process that has worked fine for a couple centuries now.

Bob| 2.17.12 @ 11:56AM

Wow, a liberal advocating that the States assert their right under Article V of the Constitution to call for a Constitutional Convention. Is this one of the signs of the Apocalypse? You know the country is in serious trouble when a Harvard liberal asks that States assert their rights and rein in the federal government.

vtwin| 2.17.12 @ 12:02PM

“No person, corporation or business entity of any type, domestic or foreign, shall be allowed to contribute money, directly or indirectly, to any candidate for Federal office or to contribute money on behalf of or opposed to any type of campaign for Federal office. Notwithstanding any other provision of law, campaign contributions to candidates for Federal office shall not constitute speech of any kind as guaranteed by the U.S. Constitution or any amendment to the U.S. Constitution. Congress shall set forth a federal holiday for the purposes of voting for candidates for Federal office.” --Dylan Ratigan's proposed constitutional amendment

skip| 2.17.12 @ 5:47PM

vtwin vtwin vtwin

MSNBC promotes itself as "A Fuller Spectrum of News" - where is the no spin fair balance?

What do their other talking heads such as Al Sharpton, Lawrence O'Donnell, Martin Bashir, Andrea Mitchell, Chris Matthews, Rachel Maddow, and their top dog competing with Fox News at 8 pm Keith Olbermann propose?

skip| 2.17.12 @ 5:53PM

And the no spin fair balance proposal of Ed Schultz?

W| 2.17.12 @ 8:33PM

This is a stupid proposal designed to have as the end result federal funding of candidates. When you have federal funding, what do you think is the next step? Another federal agency with regulations and further loss of freedom and more nanny state.
Wake up. Stop trying to restrict the First Amendment.

Robert| 2.17.12 @ 12:21PM

One way to weaken corporate and union influence is to increase the number of representatives in the house and return the election of senators to the State. It may not solve all the problems but it will make it reduce the cost of campaigns, make the voter feel he is listened to more by his representative then his lobbyist and make our congress members less fearful of PC press manipulations because they are better connected to their constituents.

Dave Williams| 2.17.12 @ 12:57PM

NOOOOOOOOOooooo, do NOT wish for a Constitutional Convention!!!! Sad to say, thinking individuals with some self-control are VASTLY outnumbered by the Oprah/Jerry Springer/wrestling/action movie-watching trash, and if they EVER get a chance to rewrite the rules we play by, America is OVER. (It may be over already, but let's not make it official just yet....)

Steve Padilla| 2.17.12 @ 2:02PM

Blaming money and crony capitalism is certainly an easy to understand explanation. What's always missing is WHOM starts the ball rolling. It is legislators whom (in utter transparency and often in anticipation of personal profit) grant such favors. Until term limits are established first, limiting political contributions will only stifle speech and have unintended negative consequences. Legislators are not 'distracted', they are actively scamming for their own profit. The real problem is that this country is so productive that we have given a bunch of fools so much money, sums unimaginable to any single person, who waste it irresponsibly with no consequences to them. Swatting the flies works only temporarily. So long as the source of the stink remains, smarter flies will find their way to it.

Ted| 2.17.12 @ 2:29PM

"Until term limits are established first..."

I disagree on term limits. If you have term limits, then you will have an entrenched bureaucracy that will not be accountable at all to the voters. Further, they will resist an reforms by term limited politicians and simply wait them out.

As an excellent example I give you the Pentagon. Why? Because the military personnel there are "term" limited in the sense that, unless they retire, they will move to another military assignment in 2-4 years. What do the DOD civilians do with the military man (or woman) who comes in and rocks their boats? They wait them out and/or use their knowledge of the Pentagon to stymie an efforts at doing things another way.

Ted| 2.17.12 @ 2:26PM

So basically we are simply rehashing Citizens United v. FEC and proposing a "solution" that the Supreme Court struck down in that case.

Is there too much money in politics? Maybe. But maybe not. As the saying goes, money is the life blood of politics. A candidate or a group of like-minded citizens can't get their message out if they don't have any money to pruchase air time. If they have no air time, they can't get their message before the voters.

Matthew L Kees| 2.17.12 @ 10:21PM

When insider trading was exposed, they responded by passing a BILL to force their hands to behave. No one in Congress said they would stop trading based on moral or ethical grounds. They needed a BILL.

The Wrecking Ball is here...

http://m.guardian.co.uk/music/.....pe=article

Richard Baker| 2.17.12 @ 11:44PM

clifford smith:
Agree with your idea. If there is limited influence to peddle then peddling influence doesn't pay. Limited means limited. Get the government OUT of our lives.

POST American| 2.18.12 @ 12:18AM

----------------------FINAL WORD----------------------

"--Let's ALL DIE
----------or LET'S DO IT."
-Thomas Carlysle

---------------HUAC/ NUREMBERG 2012------------

TSA now being rolled out ---in cities!
across America.

-----TROJAN HORSE EUGENICS
(CHEM-trails/ GMO food/ weaponized injections)
now joined by open, TROJAN HORSE
TREASON-----

There can be NO more debate about
any of this.

---------------HUAC/NUREMBERG

-------------------------------LET'S DO IT!

PsychoDad| 2.19.12 @ 2:53PM

Sir, call the Drug Hotline ASAP,they'll help talk you down.

macwell| 2.18.12 @ 5:53AM

Congress was never meant to be a career.

Congress was never meant to be filled with lawyers.

The problem America faces is the same problem we've been facing for over 50 years, the career politician.
We send these people to DC to speak for us, instead all they think about is their next election, their next stock tip, their next raise.

The House of Representatives is supposed to be made up from a cross section of Americans, not just lawyers. The joke we refer to as Congress has been beefing up the good old boys club for a long time now. I think these people have forgotten why they were sent.

Congress was never meant to be a career.

We the people must DEMAND an end to the lobby, we must take the millions out of political service. We have been duped into believing that one must have little letters after ones name in order to serve your fellow Americans. I say bunk. Joe the plumber is running for Congress, good for him, we need more Joe the plumbers running.

Look folks, the founders left us the proper model, citizen government.
The House should be made up of people from all walks of life from barbers to librarians, homemakers to iron workers and everyone in between.

In November we have a chance to begin taking our country back from the hands of one who wishes to "fundamentally transform" America into something. He hasn't exactly told us what he wants to transform her into.
We the people can no longer remain the silent majority.
We must band together and rid America of those who don't love her, those who use her for personal gain.

If we the people don't stand up to the tyrants in November then maybe we don't deserve America.

Jeamar| 2.18.12 @ 11:44AM

Term limits sound good but deprive citizens of electing their choice for office. I am being only somewhat facetious when I say what we need is campaign limits. The current one started the day Obama was elected and both parties are so obsessed with campaigning for the next election, they have not time to tackle current problems. Somehow, I reluctantly agree with those who say the whole corrupt mess must collapse before it will be fixed--I hope for the better.

Marlowe| 2.18.12 @ 11:55AM

"For Lessig, it's campaign finance reform. Like many liberals, he focuses on process, on inputs, on how politicians are elected."

This is the same logic that gave us the monsterous McCain-Feingold. There are, upon further examination two fatal flaws with this argument.
First, any law passed to stem political corruption must of necessity be written by the self-same politicians it endeavors to constrain. Talk about FATAL FLAW.
The second problem of course is the Constitution.

Garfield| 2.18.12 @ 12:59PM

Sorry but I don't trust politicians with messing with the Constitution. The left would love to eliminate the 2nd Amendment for example.

martin j smith| 2.18.12 @ 4:16PM

When I hear the term Crony Capitalism then I might feel we are on the same page. Big Business has their hands on which ever political Party they believe can give them the best deal. This is a gigantic problem.
And that brings me to much of the MSM which also shows the curruption in a highly influential big business. No sir, I am not quite buying this guy. We need to get to the bras tacks of the real influence peddling including BIG UNIONS as well for they too are Big Business. No siree--there is lot of stuff that Socialists ( aka Democrat Party ) are pushing that are right in line with the curruption that we are talking about and Obama is a master of it.

NeilBJ| 2.18.12 @ 5:18PM

To call for a constitutional convention is an exercise in futility. One would think that we would have to have a Constitution that is followed in the first place for a constitutional convention to have any meaning.

Why should expect an amendment to have any effect when the Consitution itself is completely ignored?

John Kettlewell| 2.18.12 @ 9:00PM

You can trace most problems back to the Income Tax Amendment. The way it gradually opened the doors toward a Statist society. I'm too tired to make all the connections, but that will give the readers something to think critically about. 1913-present. Ready, set, go.

POST American| 2.18.12 @ 9:53PM

"Let's ALL DIE --or LET'S DO IT."
-Thomas Carlysle

---------------------------------WE ARE THERE!

POST American| 2.18.12 @ 9:53PM

"Let's ALL DIE --or LET'S DO IT."
-Thomas Carlysle

---------------------------------WE ARE THERE!

Dick| 2.19.12 @ 7:23AM

The answer is the constitution and not conservative or liberal. You are a smart guy, so go back and read and study it. Then it should be taugHt to the masses and then you might have the govt that works

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