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Lessig on the Effects of Elected Officials' Dependency Problem
Saturday, November 5th, 2011
Robert Wechsler
Lawrence Lessig's excellent new book Republic,
Lost: How Money Corrupts Congress—and a Plan to Stop It
(Twelve, Oct. 5, 2011) is about Congress and mostly about campaign
finance, but it is also an important look at institutional
corruption that has some valuable things to say that are relevant to
local government ethics.
Lessig, who is director of the Edmond J. Safra Foundation Center for Ethics at Harvard University, came to government ethics in an interesting fashion. As a law professor specializing in copyright law, he sought to make out-of-print but copyrighted books available to the public. But his efforts, as reasonable, as clearly in the public interest, and as consistent with the Constitution (which actually mentions copyright) as can be, went nowhere. Instead, copyrights were extended more and more.
Institutional Corruption
Lessig came to realize that what caused these extensions, institutional corruption, is "the gateway problem: until we solve it, we won't solve any number of other critical problems." True reform, in any area, is impossible as long as the current institutional situation remains. Therefore, he switched his focus from copyright to government ethics, with an emphasis on campaign finance.
The problem, as Lessig puts it, is not that there are evil people ruining our country, but rather that there are ordinary people working in an institution corrupted in such a way that a great deal of what happens is distorted from what was intended to happen when our governments were formed. It isn't that no laws are passed or regulations promulgated (although many are blocked), it is that these laws and regulations are so much affected by those who benefit (or may be harmed) by them (and by their lobbyists) that they are written differently than they otherwise would. They are written in a way to benefit those who have the access and influence. In fact, they are often written by the people they regulate.
It is not only laws and regulations that are over-influenced by those who benefit from them. It is also contracts, permit applications, grant applications, all those documents that, for most of us, simply exist. Those documents that get very little press, and whose authorship is not accomplished or, often, even discussed at public meetings.
A Dependency
Lessig uses an excellent word for what is wrong here: dependency. Some influences are so strong, they rise to the level of a dependency in that, like alcohol, drugs, or the Internet, they distract government officials, particularly elected officials, from their job, which is to serve the public. Lessig asserts that when influences as a whole, not any particular influence, rise to the level of dependency, "those responsible for the effectiveness of the institution must ask whether that dependency too severely weakens the independence of the institution. If they don't ask this question, then they betray the institution they serve."
This is strong language but, I think, appropriate. Officials have an obligation not to become dependent on anyone in a way that distorts the operation of their body or agency. If they find there is a dependency, they must find a way to rid themselves of it.
When you read Lessig's description of a dependency, you see how apt a description it is for what happens in government:
Lessig includes a fascinating quote from former representative Tony Coelho, who does touch on the difference between the personal and the institutional, but still seems in denial:
The dependency that concerned the founding fathers was Parliament's dependency on the king or, in the future, a president or foreign country (see Article I, Section 9 of the Constitution). Since then, the problematic dependencies have changed.
Lessig quotes from Federalist 52, that a representative democracy is to be "dependent upon the People alone." Corruption can be defined as a competing dependency. That is the current situation. Not bad people taking money in bags, but ordinary people dependent on taking money in order to get elected, and using the power of their position to do what it takes to get more of that money. This dependency is not on "the People," whom an elected official is supposed to represent, but on a tiny percentage of people who benefit specially from government decisions, whom an elected official is not supposed to represent. It is not unequal influence that bothers Lessig as much as preserving electoral influence.
The opposite of dependency is independence, as in the following statement made by San Diego Law School professor Frank Partnoy: "The only discernible difference between [Jim] Leach and other members of Congress was that Leach did not receive financial support from Wall Street. … Because he refused to accept contributions from political action committees, Leach could speak with an independent mind."
The Effects of the Dependency
The result of this dependency is primarily to preserve the status quo, that is, to protect the private interests that are already given preferential treatment, and to protect the incumbency of those in power, that is, those who have the most to offer the private interests.
What has happened in a world where so many people are dependent on raising large amounts of funds is that it is no longer embarrassing for elected officials to take money from those they regulate and do business with. In fact, it is a sign of status, a sign that you have the power necessary to raise these funds. What is apparently improper to the rest of the world is, within the political world, what everyone is striving to be able to do.
It is not that money buys votes (although the prospect of money may very well do this, leading to what Lessig calls a "shape-shifting dance"). In most cases, the elected official was going to vote for it anyway. What money buys is access, prioritizing (the agenda), allocation of effort, killing a bill or ordinance, and the details (which is, of course, where "the devil is" ). In order to get the money, all of these aspects of the legislative process are distorted. The question Lessig asks again and again about the influence of spending on various policies is, "Does it weaken your ability to believe that the current policy makes sense?"
Is access all that important? After all, we can all write our representatives, and even meet them at their local office. But a different level of access can mean a great deal. Lessig notes that when he spoke with members of Congress about copyright issues, the problem was not that they did not agree with him. It was that "members didn't understand that there was another side to the issue. They had never even heard it." They thought the issue was for or against copyright, not the details of copyright law, which were handled by lobbyists.
As for prioritizing, it's the relatively minor issues that produce the most lobbying. Few citizens care much about copyright law, except when it gets in the way of free downloads. But lobbying changes priorities, so that copyright bills keep coming before Congress. And getting passed. Even though they clearly go against the wishes of the founding fathers (see Article 1, Section 8, Par. 8 of the Constitution).
At the local level, think about the difference between spending on new school buildings (with lots of interested contractors) versus decreasing class size or subsidizing the training of teachers (with one or two interested teacher unions, and lots of parents).
As for killing a bill or ordinance, it's important to recognize that when people say money does not buy votes, they are limiting influence to the tip of the iceberg. There are, as Lessig points out, a million ways to kill a bill or ordinance, completely or in part, and that is where most of legislative activity occurs. Voting, which is where our attention is always drawn, is usually the least meaningful part of the process. In fact, nothing is easier than voting for a good cause that you know will never get to the floor of the legislative body. This happens all the time with ethics laws.
As for lobbying, Lessig notes what happens to an institution when what was once considered unethical, what was once done in an underhanded manner, with money in envelopes and secret conversations, becomes the norm, done with checks and conversations that are sometimes even logged and placed online for the world to see. The bagman is now the lobbyist or bundler. Better that there be disclosure, but worse that the conduct is so common and respectable. "[A]s the practice has become more professional, its effect on our democracy has become more systemic."
A Gift Economy
There is no need for quid pro quos. Lessig refers to campaign finance as a gift economy, "a series of exchanges between two or more souls who never pretend to equate one exchange to another, but who also don't pretend that reciprocating is unimportant … And the exchanges that happen within gift economies try to hide their character as exchanges by tying so much of the exchange to the relationship. ... Gift giving in relationship-based economies is a way to express and to build relationships. It's not a system to transfer wealth. ... Gifts are moves in a game; they oblige others." This is why government ethics is concerned so much with relationships and obligations, rather than with money. (see my 2008 blog post on politics as a gift economy)
The fact is that the public only gives one gift to an elected official, and this only happens every so many years. In the interim, as well as in order to get the public's support, gifts are given, favors are made, and many of them do not involve money, at least not directly (there is a lot of advice, research, drafting, campaign work, transportation, and bundling). The gifts and favors are not meant to "buy" the official, but to make her feel obligated to the giver more than to the community.
Lessig supports public campaign financing as the best solution to the dependency problem. He notes that public financing reduces the gap between the funders and the people, because the people become the principal funders (at least assuming that all the money doesn't flow into independent expenditures). To get enough funds to get elected, under the unusual financing system Lessig contemplates, a candidate would have to reach out not to individuals who benefit directly from the government, but to everyone.
Other Observations
Lessig describes leadership PACs as akin to representatives handing each other $5,000 checks in the Capitol. They are "the glue that keeps the system together." At the local level, these PACs can be extremely important. They allow an incumbent to use his power over those who benefit from government to get money with which to support other candidates, to create a network of obligations that, like those to lobbyists, have nothing to do with the public. These layers of obligation bring everyone into the system from the very start.
One final thing. Lessig notes that our founding fathers saw citizenship itself as a public office. "As the holder of that office, each of us is charged with voting not to advance our own private interests, but instead to advance the public's interest." This is something that has long been forgotten. One wonders whether, if each of us was to think like a public official, we would expect, and get, more from our public officials.
There's a lot more to Lessig's book that is irrelevant to local government ethics. But his portrayal of problems as well as his solutions are original and thought-provoking. I highly recommend the book.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
Lessig, who is director of the Edmond J. Safra Foundation Center for Ethics at Harvard University, came to government ethics in an interesting fashion. As a law professor specializing in copyright law, he sought to make out-of-print but copyrighted books available to the public. But his efforts, as reasonable, as clearly in the public interest, and as consistent with the Constitution (which actually mentions copyright) as can be, went nowhere. Instead, copyrights were extended more and more.
Institutional Corruption
Lessig came to realize that what caused these extensions, institutional corruption, is "the gateway problem: until we solve it, we won't solve any number of other critical problems." True reform, in any area, is impossible as long as the current institutional situation remains. Therefore, he switched his focus from copyright to government ethics, with an emphasis on campaign finance.
The problem, as Lessig puts it, is not that there are evil people ruining our country, but rather that there are ordinary people working in an institution corrupted in such a way that a great deal of what happens is distorted from what was intended to happen when our governments were formed. It isn't that no laws are passed or regulations promulgated (although many are blocked), it is that these laws and regulations are so much affected by those who benefit (or may be harmed) by them (and by their lobbyists) that they are written differently than they otherwise would. They are written in a way to benefit those who have the access and influence. In fact, they are often written by the people they regulate.
It is not only laws and regulations that are over-influenced by those who benefit from them. It is also contracts, permit applications, grant applications, all those documents that, for most of us, simply exist. Those documents that get very little press, and whose authorship is not accomplished or, often, even discussed at public meetings.
A Dependency
Lessig uses an excellent word for what is wrong here: dependency. Some influences are so strong, they rise to the level of a dependency in that, like alcohol, drugs, or the Internet, they distract government officials, particularly elected officials, from their job, which is to serve the public. Lessig asserts that when influences as a whole, not any particular influence, rise to the level of dependency, "those responsible for the effectiveness of the institution must ask whether that dependency too severely weakens the independence of the institution. If they don't ask this question, then they betray the institution they serve."
This is strong language but, I think, appropriate. Officials have an obligation not to become dependent on anyone in a way that distorts the operation of their body or agency. If they find there is a dependency, they must find a way to rid themselves of it.
When you read Lessig's description of a dependency, you see how apt a description it is for what happens in government:
-
[A] dependency develops over time; it sets a pattern of interaction
that builds upon itself; it develops a resistance to breaking that
pattern; it feeds a need that some find easier to resist than
others; satisfying that need creates its own reward; that reward
makes giving up the dependency difficult; for some, it makes it
impossible.
Lessig includes a fascinating quote from former representative Tony Coelho, who does touch on the difference between the personal and the institutional, but still seems in denial:
-
The press always tries . . . to say that you've been bought out. I
don't buy that. . . . I think that the process buys you out. . . . I
think there's a big difference there."
The dependency that concerned the founding fathers was Parliament's dependency on the king or, in the future, a president or foreign country (see Article I, Section 9 of the Constitution). Since then, the problematic dependencies have changed.
Lessig quotes from Federalist 52, that a representative democracy is to be "dependent upon the People alone." Corruption can be defined as a competing dependency. That is the current situation. Not bad people taking money in bags, but ordinary people dependent on taking money in order to get elected, and using the power of their position to do what it takes to get more of that money. This dependency is not on "the People," whom an elected official is supposed to represent, but on a tiny percentage of people who benefit specially from government decisions, whom an elected official is not supposed to represent. It is not unequal influence that bothers Lessig as much as preserving electoral influence.
The opposite of dependency is independence, as in the following statement made by San Diego Law School professor Frank Partnoy: "The only discernible difference between [Jim] Leach and other members of Congress was that Leach did not receive financial support from Wall Street. … Because he refused to accept contributions from political action committees, Leach could speak with an independent mind."
The Effects of the Dependency
The result of this dependency is primarily to preserve the status quo, that is, to protect the private interests that are already given preferential treatment, and to protect the incumbency of those in power, that is, those who have the most to offer the private interests.
What has happened in a world where so many people are dependent on raising large amounts of funds is that it is no longer embarrassing for elected officials to take money from those they regulate and do business with. In fact, it is a sign of status, a sign that you have the power necessary to raise these funds. What is apparently improper to the rest of the world is, within the political world, what everyone is striving to be able to do.
It is not that money buys votes (although the prospect of money may very well do this, leading to what Lessig calls a "shape-shifting dance"). In most cases, the elected official was going to vote for it anyway. What money buys is access, prioritizing (the agenda), allocation of effort, killing a bill or ordinance, and the details (which is, of course, where "the devil is" ). In order to get the money, all of these aspects of the legislative process are distorted. The question Lessig asks again and again about the influence of spending on various policies is, "Does it weaken your ability to believe that the current policy makes sense?"
Is access all that important? After all, we can all write our representatives, and even meet them at their local office. But a different level of access can mean a great deal. Lessig notes that when he spoke with members of Congress about copyright issues, the problem was not that they did not agree with him. It was that "members didn't understand that there was another side to the issue. They had never even heard it." They thought the issue was for or against copyright, not the details of copyright law, which were handled by lobbyists.
As for prioritizing, it's the relatively minor issues that produce the most lobbying. Few citizens care much about copyright law, except when it gets in the way of free downloads. But lobbying changes priorities, so that copyright bills keep coming before Congress. And getting passed. Even though they clearly go against the wishes of the founding fathers (see Article 1, Section 8, Par. 8 of the Constitution).
At the local level, think about the difference between spending on new school buildings (with lots of interested contractors) versus decreasing class size or subsidizing the training of teachers (with one or two interested teacher unions, and lots of parents).
As for killing a bill or ordinance, it's important to recognize that when people say money does not buy votes, they are limiting influence to the tip of the iceberg. There are, as Lessig points out, a million ways to kill a bill or ordinance, completely or in part, and that is where most of legislative activity occurs. Voting, which is where our attention is always drawn, is usually the least meaningful part of the process. In fact, nothing is easier than voting for a good cause that you know will never get to the floor of the legislative body. This happens all the time with ethics laws.
As for lobbying, Lessig notes what happens to an institution when what was once considered unethical, what was once done in an underhanded manner, with money in envelopes and secret conversations, becomes the norm, done with checks and conversations that are sometimes even logged and placed online for the world to see. The bagman is now the lobbyist or bundler. Better that there be disclosure, but worse that the conduct is so common and respectable. "[A]s the practice has become more professional, its effect on our democracy has become more systemic."
A Gift Economy
There is no need for quid pro quos. Lessig refers to campaign finance as a gift economy, "a series of exchanges between two or more souls who never pretend to equate one exchange to another, but who also don't pretend that reciprocating is unimportant … And the exchanges that happen within gift economies try to hide their character as exchanges by tying so much of the exchange to the relationship. ... Gift giving in relationship-based economies is a way to express and to build relationships. It's not a system to transfer wealth. ... Gifts are moves in a game; they oblige others." This is why government ethics is concerned so much with relationships and obligations, rather than with money. (see my 2008 blog post on politics as a gift economy)
The fact is that the public only gives one gift to an elected official, and this only happens every so many years. In the interim, as well as in order to get the public's support, gifts are given, favors are made, and many of them do not involve money, at least not directly (there is a lot of advice, research, drafting, campaign work, transportation, and bundling). The gifts and favors are not meant to "buy" the official, but to make her feel obligated to the giver more than to the community.
Lessig supports public campaign financing as the best solution to the dependency problem. He notes that public financing reduces the gap between the funders and the people, because the people become the principal funders (at least assuming that all the money doesn't flow into independent expenditures). To get enough funds to get elected, under the unusual financing system Lessig contemplates, a candidate would have to reach out not to individuals who benefit directly from the government, but to everyone.
Other Observations
Lessig describes leadership PACs as akin to representatives handing each other $5,000 checks in the Capitol. They are "the glue that keeps the system together." At the local level, these PACs can be extremely important. They allow an incumbent to use his power over those who benefit from government to get money with which to support other candidates, to create a network of obligations that, like those to lobbyists, have nothing to do with the public. These layers of obligation bring everyone into the system from the very start.
One final thing. Lessig notes that our founding fathers saw citizenship itself as a public office. "As the holder of that office, each of us is charged with voting not to advance our own private interests, but instead to advance the public's interest." This is something that has long been forgotten. One wonders whether, if each of us was to think like a public official, we would expect, and get, more from our public officials.
There's a lot more to Lessig's book that is irrelevant to local government ethics. But his portrayal of problems as well as his solutions are original and thought-provoking. I highly recommend the book.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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