Republic, Lost: How Money Corrupts Congress and a Plan to Stop It / Lawrence Lessig -- N.Y.: Twelve, 2011

If I were to nominate a best book of 2011 it would be Lawrence Lessig's Republic, Lost. It is, as its subtitle declares, an account of how money corrupts Congress, and it provides a plan to escape this corruption. Lessig quite rightly recognizes that numerous public policy and governmental problems cannot be solved until we remove the undemocratic influence that big money has on our political system. Furthermore, big money in politics frustrates the policy agendas of both liberals and conservatives or, more accurately, the policy agendas of people with all manner of political philosophy. The only interests that our current system serves are those of corporations, politicians, and lobbyists. No book has made this case more persuasively than Republic, Lost.

The first 247 pages of Republic, Lost provides an extremely cogent and readable account of how money distracts Congress from the business of governing, distorts the representational character and agenda of Congress, and undermines the trust that citizens otherwise might have in government. The last 79 pages describe a system of publicly financing elections and discuss four strategies for rectifying the problem.

Most of the ills presented in the book are attributed to some form of corruption. Lessig differentiates "quid pro quo" and "dependence" corruption, but finer distinctions can be made. Quid pro quo corruption involves an illicit exchange of favors, e.g., campaign money or other favors expressly exchanged for a favorable vote. This is plainly illegal. Quid pro quo corruption is nothing less than bribery or extortion depending on which party to the transaction has more power or initiates the transaction. A weak member of Congress (in need of campaign cash) can be induced to accept a bribe in exchange for his or her vote. On the other hand, a powerful member of Congress can extort campaign contributions by threatening a negative vote. These forms of corruption usually grab headlines, but are probably quite rare.

The more problematic form of corruption is what Lessig calls, "dependence corruption." Lessig claims that the delegates to the 1787 constitutional convention intended to set up a government that was "dependent on the people alone;" however, with the massive influx of money into political campaigns and the growth of lobbying, members of Congress have become dependent on rich campaign financiers and corporate lobbyists. Conversely, corporations are subject to legislation and hence are dependent on legislators. Lessig's book is dedicated to exposing and eliminating this co-dependence. Like quid pro quo corruption, dependence corruption can come in two forms: "venal corruption" in which politicians are made subservient to corporations, and "systematic corruption" in which corporations are made subservient to politicians. Liberals, fearing big business, are concerned about venal corruption. Conservatives, fearing big government, are concerned about systematic corruption.

Notably, quid pro quo corruption takes place in a political economy in which votes are simply commodities to be bought and sold. In contrast, dependence corruption takes place within an economy in which contributions and votes function as gifts. Campaign contributors usually make their gifts freely and without expecting specific votes in return. Legislators usually cast their votes without expecting an immediate campaign contribution; but as in any gift economy, there is an expectation that recipients will eventually return the favor. If, over time, gifts are not reciprocated, they will stop coming. The connection between contributions and votes is certainly real, but it is too tenuous to be actionable in court.

Lessig aptly compares dependence corruption to a dance, but the metaphor is more illuminating if we extend it to quid pro quo corruption as well. Quid pro quo corruption is like a dance in which the partners touch one another. Dependence corruption is like line dancing, where the dancers coordinate their movements. Line dancing is legal as long as the partners do not touch each other. Nevertheless, anyone can see that the dancers are intentionally coordinating their movements. They are "shape-shifting" to ensure that they are getting and giving what is needed in the relationship.

Lessig portrays lobbyists as the middlemen in the co-dependent relationship. The enormous growth of the lobbying industry is a clear sign of the expansion of the problem. There were 175 lobbying firms in the early 1970s, but by 2011, there were more than 12,000 registered lobbyists. Furthermore, becoming a member of Congress is increasingly a stepping stone to a far more lucrative career as a lobbyist. Between 1998 and 2004, most former senators and more than 40% of former House members became lobbyists, making three to ten times their government salaries. Because of this, many legislators are not inclined to support any changes to the systems of campaign finance and lobbyist favors, lest they compromise their own careers.

Lessig is, however, at pains not to judge individual corporate donors, lobbyists, and legislators too harshly. He emphasizes that dependence corruption is a natural product of the praiseworthy gratitude that good people feel toward gift-givers. His view is that the moral obligation one feels to reciprocate a gift makes it virtually impossible for legislators, in particular, to avoid becoming sympathetic to well-healed gift-givers. Here, Lessig is adopting an amazingly generous attitude. A more demanding critic would expect legislators to rise above personal sentiments and would denounce participation in dependence corruption as a moral failing. Legislators ought to have a stronger sense of professionalism and impartiality. After all, the business of legislators is not to be polite to donors, but to protect the interests of their constituents. It should go without saying that more self-interested motives for returning favors are clearly unethical.

If there is anything lacking in Lessig’s analysis of the campaign finance corruption, it is that he largely has overlooked a crucial form of distortion that we might call “candidate selection bias.” Unlike quid pro quo and dependence corruption, candidate selection bias does not require immoral actions of any kind or degree; nonetheless, it significantly distorts Congress’s agenda and legislation. It prevents Congress from accurately representing the interests of the whole of the electorate. This form of distortion is a kind of Darwinian natural selection. It does not alter the votes of individual legislators. Instead, it determines the character of the legislature as a whole, well before any legislator takes his or her oath of office.

Candidate selection bias works as follows: given the enormous sums needed to win a primary and/or general election, only those candidates who raise a lot of money ever become "viable," at least for national or state-wide office. Those that are starved for cash simply will be removed from the political gene pool. In this way, rich campaign financiers are empowered to determine who will become viable candidates. Consequently, nearly every successful candidate will have a broadly pro-corporate political ideology. After being elected, legislators can act entirely conscientiously, but still, the result will be pro-corporate legislation. The only question will be which rich and powerful group the legislator will favor, and “the peoples' agenda” will be subordinated, if not completely disregarded.

Lessig understands this problem, but he does not give it a prominent place in his book and does not explicitly describe it until page 244. Even here he only points out that candidate selection bias will undermine our trust in government; he does not observe that it actually establishes a pro-corporate baseline for policy-making. Perhaps a better way to structure a critique of our system is to first note that the prevalence of private, high-limit (or no-limit) campaign funding means that nearly every successful candidate will hold a pro-corporate political philosophy. From there, dependence corruption will cement the legislator's allegiance to pro-corporate policies and particular corporate interests. Finally, the temptation to slip out of the gift economy and into quid pro quo bribery and extortion will be too much for at least some legislators.

Keeping bribery and extortion out of the system is clearly not enough, but neither is it enough to eliminate shape-shifting dependence corruption. To make our electoral process truly democratic (i.e., to give each person equal influence on public policy) we must also eliminate the candidate selection bias that creates a plutocratic baseline in our legislatures. Furthermore, to be successful in reforming the system we must demonstrate that our campaign finance system distorts democratic representation without immoral actions of any kind. If immorality is essential to our critique, then we will be forever distracted by quid pro quo corruption, and the subtlety and moral ambiguity of dependence corruption will insulate it from effective criticism.

In the final part of Republic, Lost, Lessig presents his proposal for eliminating corruption in our campaign finance system. He describes a method for publicly financing elections that he calls the “Grant and Franklin Project” and he offers four political strategies for implementing the plan. Lessig encourages readers to join (or create) a movement employing one or more of these strategies or to offer a better strategy.

Under the Grant and Franklin Project, each voter would be given a $50 voucher to donate to candidates of his or her choice. All $50 could be given to a single candidate or divided between several candidates. Voters may supplement their voucher donations with private contributions of no more than $100 per candidate. For candidates to receive voucher money, they must agree to limit any private donation to their campaign to $100. Lessig believes that this proposal would pass constitutional muster and would create a pool of campaign financing that would successfully compete with corporate-funded candidates. This seems quite likely. Were a candidate for the Senate to receive twenty thousand $50 vouchers, she or he would have a million dollars to wage a campaign. As allocating one's voucher costs the voter nothing, it is likely that plenty of money would flow to popular candidates who do not necessarily have support among the traditional wealthy campaign financiers. Clearly, those benefiting from the current system will not want the new electoral competition that this will engender and so will not get on board with this plan. Implementing the Grant and Franklin Project will require unconventional political strategies.

Lessig offers four strategies. (1) Lobby Congress to pass a law mandating the system. This is a conventional method which Lessig believes has no chance of success. (2) Mount primary challenges to be conducted until the incumbent commits publicly to supporting publicly financed elections. There is actually a bit more to this strategy, but its main goal is to create political threats sufficient to persuade incumbents to support campaign finance reform. (3) Mount presidential primary bids in both parties with the promise that if elected the new president would "hold the government hostage" until Congress enacts effective campaign finance reform. Once the reform is enacted, the president would resign. (4) Mount a movement to convene a constitutional convention that will require publicly financed elections. Lessig does not believe any of these strategies has much chance of success, but he holds out the greatest hope for strategy (4). He believes some combination of all but the first would be advisable.

Lessig invites his readers to think of addition (better) strategies. In response, I would suggest a modification to his second strategy. (2a) Mount serious campaigns for state and county legislative seats based on strict campaign finance restrictions. Candidates running for office would voluntarily agree to limit contributions to no more than $100 and would accept contributions only from people (not corporate persons) residing within the district they seek to represent. Furthermore, if elected, they would promise to accept no gifts from lobbyists. For most state and county offices, these restrictions would not prevent the candidate from raising the same amount of money that is normally raised for such seats and they would have the further advantage of highlighting the embarrassing sources of their opponents' campaign funding. Many such “low limit” candidates would actually win office and be positioned to press for genuine campaign finance reform on a state-by-state basis. Additionally, their campaigns would dramatically highlight the issue of campaign finance. Where ballot access laws are progressive enough to run independent and third-party candidates, voluntary low limit candidates could run in the general election. Above the level of state legislative candidates, candidates could adopt the same restrictions, though we should not expect electoral success. Their candidacies would mostly publicize the campaign finance issue.

In Lessig's strategy (2), candidates mounting primary challenges announce in advance that they are running not to be a politician or to take office, but to pressure other candidates to support publicly financed elections. I think his point here is that by running, but not actually seeking office, the candidate assures voters that he or she is not simply going to become another corporate politician, but it is hard to imagine that many voters would choose to vote for such a candidate. Announcing in advance that one is merely a protest candidate is a sure-fire way of being ignored by all but a small minority of protest voters, and dropping out of the race on the mere promise by an opponent to support publicly financed elections will certainly defeat the strategy. Broken promises are a dime a dozen in politics. A more potent challenge to incumbents would come from candidates who truly are campaigning for office while abiding by the strict campaign finance restrictions outlined in my strategy (2a) above. Such candidates can assure voters that they will not become dependent on big money and, once elected, they will have every reason to work to pass campaign finance rules that will level the playing field. Genuine reform candidates must be genuine candidates and must walk the walk. They must seek to replace big money candidates, while remaining consistent with their principles. Otherwise, we should deny them our votes.

My proposed strategy need only succeed enough to bring publicly financed elections to a notable number of states before campaign finance would become a significant national issue. Certainly, if a large state (e.g., California, New York, Texas, or Florida) adopted publicly financed elections, it would become a viable national issue, increasing the likelihood that one of Lessig's strategies might work. At very least, democracy would begin to grow in specific states, and all the various local, low limit campaigns would generate experienced, pro-reform politicians who could advance to national office, creating yet more possibilities for campaign finance reform.