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.