Ethics and Open Government

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“RICH” AND “POWERFUL” go together so naturally that they seem to be not just partners but synonyms. When it comes to the workings of our democracy, however, Lawrence Lessig says that bond has never been as tight as it is today. Wealth may always have a larger claim on power, but Lessig says money and the special interests that wield so much of it today have clogged the system so completely that we are unable to address sensibly the most pressing problems facing the country. From climate change to health care, or even an obesity epidemic we help fuel through subsidies on foods that add to the problem, Lessig says the outsize influence of special-interest money amounts to a form of legal corruption that threatens the very foundations of the American system.

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Lessig, a professor at Harvard Law School, lays out his book-length indictment in Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It, which documents all the ways legal corruption infects our system, subtle and not. In the 1970s, he writes, just 3 percent of outgoing members of Congress became lobbyists. From 1998 to 2004, more than half of all departing senators and 42 percent of those leaving the House went through the revolving door to join the ranks of influence peddlers.

That may be the most glaring evidence of the capture of the nation’s lawmaking by special interests. But Lessig lays out all sorts of examples of how the process of deliberation and debate has fallen victim to an arms race among well-financed interests that makes laughable the idea that healthy compromise based on the “greater good” could prevail. Sausage-making is one thing. The picture he paints is of a far graver threat to the democratic experience.

“Until it gets fixed, governance will remain stalled,” he writes. Our capacity for governing, Lessig declares, “has come to an end.”

The first step toward a fix, he says, is some type of small-donor campaign finance system that wrests control over elections away from big-money interests. He offers one model, dubbed the Grant and Franklin Project. Lessig argues that the corruption now infecting our system is bad for those on the left and right alike, and points to the common outrage in the Occupy and Tea Party movements over the power of Wall Street.

Lessig himself has journeyed across the political spectrum. In 1980, he was a 19-year-old alternate delegate for Ronald Reagan at the Republican National Convention. After law school, he clerked for conservative US Supreme Court Justice Antonin Scalia. But Lessig describes himself as a “libertarian” who became increasingly “sensitive to the role of equality as a value” society needs to promote. “When you put those two together, that produces a position that feels more to the left than the right,” he says.

Lessig has also migrated away from an area of scholarship that he devoted years to—nationally recognized work on intellectual property and copyright law. His shift to institutional corruption in the political system, he says, was a natural outgrowth of the frustration he experienced in watching well-funded interests bottle up efforts to allow greater public access to information and content in the digital age.

Lessig directs the Edmond J. Safra Center for Ethics at Harvard, where he is overseeing a five-year research project exploring various facets of institutional corruption. He also founded an organization, Rootstrikers, that aims to galvanize activists to take action to fight the influence of money in the political system, and he has been speaking widely on the topic to audiences across the country.

In speeches, as in his book, Lessig is fond of recalling the story of Benjamin Franklin being stopped by a woman outside Independence Hall as he left the Constitutional Con­vention. “What have you wrought?” she asked him. “A republic, madam—if you can keep it,” was his wry response.

In Lessig’s view, the news on that front is grim. “Ben Franklin would weep,” he writes. “The republic that he helped birth is lost.”

I sat down with Lessig in mid-November at his office in Cambridge to hear why he thinks so, and what might be done to reclaim it. What follows is an edited transcript of our conversation.

–MICHAEL JONAS

COMMONWEALTH: A good jumping off point might be the title of your book. It may be popular to talk about our way of government being imperiled or endangered, but you suggest the republic that was envisioned by the framers of the Constitution is not just endangered but lost.

LESSIG: I have a way of unpacking what is meant by republic, and I think what they meant was representative democracy, which would be a government dependent on the people alone. What we’ve seen emerge is a government that has this conflicting dependency, a dependency upon funders who are not all of us but are a tiny, tiny fraction of the 1 percent of us. It’s that conflicting dependency that negates this as a republic. To eliminate that conflicting dependency, I think, is the challenge if we want to find a way to restore or bind again that republic.

CW: You zero in most specifically on Congress as the place where things have come undone. How does that play itself out?

LESSIG: We have a split or a separated form of constitutional government, which means that there’s no guaranteed majority, unlike in a parliamentary system where the majority is the majority. In that system, the minority can be a militant minority; it doesn’t really matter. In our system, there are many, many places to block reform, block change, block legislation, and Congress is the most prominent institution for doing that. The Senate in particular is very, very supportive of minority power. So Congress is like the honey that attracts the bees, and it’s at that place that people work as hard as they can to subvert the legislative process that might lead to some kind of reform. That’s why I think this is the place we ought to focus on.

cw: Can you talk more about this dominance of Con­gress by the moneyed interests? In your book, you argue that this dominance has become much worse over the last couple of decades. So what’s changed?

LESSIG: It’s been differently bad. A hundred years ago, corruption was the old-fashioned kind. It was bribery. It was influence peddling in a direct and criminal way. And in some sense that’s worse. In some sense that’s better because it has its own self-limiting structure to it. There’s shame in that system. We’ve evolved into a system where the influence peddling is legal and out in the open and rewarded, and people are proud of it. And in that world, the extent of government that can be guided by this kind of influence is much greater than it was a hundred years ago. So in some sense I think this absolutely is worse in the harm that it does, even though the kind of mens rea, the intent or moral standing of the people engaging in this behavior, is much better. These are good people, these are decent people, but they’re living within a system that produces this enormous corruption.

CW: Can you illustrate how that plays itself out in terms of the role of money and the kinds of outcomes that it yields or the lack of action—often it’s designed to thwart things from happening.

LESSIG I think the most prominent examples are actually examples of reform not done. It’s astonishing and terrifying that four years ago both presidential candidates acknowledged global warming or climate change as a critical issue that required urgent attention. And in this recent presidential election the issue was literally not mentioned once in the debates. In the interim, an enormous amount of money was deployed by interests that oppose climate change regulation, and that money basically pushed the issue off the table. Even though it continues to be important to people, it’s not important to politicians, because politicians realize the consequence of taking the issue up would be a kind of punishment that they’re not willing to bear. Fin­an­cial reform was another issue, where, in 2010, the number one contributor to congressional campaigns was Wall Street. What they were able to do is to blackmail both Republicans and Democrats alike to enact, quote, “reform,” which doesn’t change any of the fundamentals that led to the crisis in 2008. In some sense, this might be the most egregious example because if that crisis doesn’t generate enough political will to respond to it, then what will? People always say we need a crisis to get us to do the right thing.?We had one, and even then we couldn’t respond.

CW: Your description of corn subsidies and the changes they have led to throughout the whole food supply were really eye-popping.

LESSIG: Agriculture has forever been the most grotesque area of influence peddling, and tragic because it was motivated by this idea we were going to help family farmers. What it has been is a basic subsidy to very large agribusiness. It hasn’t helped [smaller] farmers, it hasn’t helped the environment, and it hasn’t helped our food supply, because the food that we actually consume now is a product of subsidies on unhealthy food. We subsidize corn production. That drives down the cost of high-fructose corn syrup relative to sugar as a sweetener. High-fructose corn syrup becomes ubiquitous in our food supply. Something like 40 percent of all products in the supermarket have high-fructose corn syrup in them, something that in 1980 no human had ever consumed. Now we consume it all the time. This is a product of explicit legislation that says we’re going to be providing billions of dollars in benefits to these special interests. Why would this be part of our policy mix? That’s the product, I think, of this kind of corruption.

CW: You write about this long period of the modern-era Congress from roughly the Depression up to Ronald Reagan or later to Newt Gingrich. As much as people would say one-party domination isn’t healthy, you write that it was the revival of Republican congressional power and the beginning of contested competition for control of Con­gress that in some ways set a lot of this in motion. Is that right?

LESSIG: That’s right. It didn’t necessarily have to do that. It was not just that Republicans became competitive, but the whole norm of Congress was changed, self-consciously changed by Newt Gingrich. I don’t think there is a person more responsible for the architecture of Congress next to James Madison than Newt Gingrich. And all for the worse, all for the worse. He comes in, he decides that this idea of members of Congress working together is terrible. He sends all of his congressmen home on the weekends, which basically means they can be fundraising on the weekends. They work three day weeks in Washington. John Sarbanes, a Democrat from Maryland, has been in Congress for six years. He says in six years he’s has lunch with a colleague 10 times. And it’s because if you have time to have lunch, you have time to raise money. So all of the norms of what a deliberative body needs, which is people who respect each other and can work together and connect, have been self-consciously destroyed by this kind of militantism. You could have imagined a Republican Party becoming competitive but still having strong norms around the need to work together and to try to work out the problems of the nation. But it’s the perfect storm, and it creates more pressure on people to raise money, the pressure to raise money creates more pressure for people to be polarizing, and those things going together produces the kind of completely dysfunctional institution that we now have.

CW: I keep being struck by all these different numbers that have come into the popular use: The 1 percent. The 99 percent. Romney made famous the 47 percent. The number from your book that jumped out at me was the 75 percent, referring to…

LESSIG: …the percent of people who believe money buys results in Congress.

CW: Right. Doesn’t that tell you almost all you need to know to understand the state of things?

LESSIG: I think if I had to pick a couple of numbers the 75 percent is one; .05 percent is the other.

CW: Which represents what?

LESSIG: It represents the percentage of people who are the funders of elections, the effective funders of elections. In this current election, .3 percent of Americans, one-third of 1 percent, have given $200 or more; .05 percent have given the maximum amount to any congressional candidate; .01 percent have given $10,000 or more. So this is a tiny, tiny fraction of the 1 percent who are funding elections. And it’s this dependency upon this tiny, tiny fraction which constitutes what I think of as the corruption of the system.

CW: Which, I guess, has a lot to do with why this 75 percent figure is as high as it is.

LESSIG: Exactly right. I mean, people get it.

CW: You talk also about not just the profusion of lobbying, but the direct connection of lobbying to both congressional members and staffers. Can you talk a little about that?

LESSIG: Jim Cooper [a Democratic congressman from Ten­nessee] talks about Congress as a farm league for K Street, where the lobbyists work. And the image here is you’ve got these people who think of their purpose, or their objective, their business model, as, “How do I get out of Congress on my way toward becoming a lobbyist?” I think it was reinforced by a really wonderful passage in Jack Abram­off’s book, where he said the most effective technique I had was going into a Senate office, and I’d talk to the chief of staff. And I say, what are you going to do in two years? And the chief of staff says, well, I don’t know. And Jack would say, well, I want you to look me up. And Abramoff said, from that moment I owned that staffer. And not a single dollar had traded hands. What’s really disgusting is, especially at the staffer level, there’s developed a kind of awareness of who are the chumps and who are the smart people. And the chumps are the people who don’t cash out in time. And the smart people are people who’ve figured out —well, I’ve been here long enough, I’ve been on this committee, I can now cash out and have a successful career as an influence peddler. When that’s true, basically, we’ve now shifted power to the machine of lobbyists. That’s going to be great for some people. But it’s obviously not great for the way that democracy functions.

CW: What was striking about the election that we just held a week ago and the campaign that led up to it? Have we learned new things about this whole dynamic?

LESSIG: There’s a bunch of things that struck me about it. One thing is that even though, according to a Gallup poll in July, corruption in Washington was the number two most pressing issue in people’s minds for the next administration, it was not mentioned by either candidate. We did some research and found that, as far back as we can see, there’s never been an issue that was in the top 10 of that Gallup list that didn’t find its way onto the candidates’ policy positions. This issue is invisible, and it was invisible because neither side wanted to talk about it.

CW: It is striking that neither candidate talked about it. If we back up four years, a lot of the excitement around Obama’s candidacy was that he really framed that issue very eloquently. You write about it in your book, and write about your real disappointment in him. He rejected Hillary Clinton’s traditional playbook and offered something very different. But—you use the term “bait and switch”—we ended up with the same playbook and a real betrayal, you say, of what he pledged.

LESSIG: Understanding exactly why that happened is hard from this side of the White House walls, although there are some interesting clues. I do think the only way you can execute on that strategy is if you’ve really thought it through well. You can’t be an amateur about that. And as much as it was useful rhetoric, it was pretty clear—and I’ve gotten this confirmed by people on the inside—that they had no plan about how they were going to take up the fight about how Washington works. So they got in place, and most of the people in the administration were former Clinton people, and Clinton people didn’t have any sense about this being an important issue to solve. Many of them were already into the revolving door of lobbyists and policymakers. They were the problem. And it sort of mirrors what happened with the financial crisis, too, where Obama appoints all the people who created the problem.

I do think there’s a way he could act on this issue now. I think he’s got to be Obama the teacher, which is the person who explains and helps America recognize just how extreme the current situation is. I think Norm Ornstein and Thomas Mann’s book, It’s Even Worse Than It Looks, is quite brave in this respect. These are quintessentially the establishment guys It’s the first time they’ve been partisan. They just say, we can’t in honesty describe this problem without saying, it’s the Republicans. The Republicans are behaving in a completely destructive way, and it was clear in this campaign that America doesn’t understand that, because the idea that Romney could run an ad that says that the problem is that the president doesn’t know how to work with Congress and he is a person who could work across the lines, was chutzpah beyond. Because they were the ones who adopted the not-one-vote strategy—not one vote will be given to this administration.

CW: Obama is somebody you knew in Chicago. You were colleagues [at the University of Chicago]. You believed him and the apparent sincerity that he brought to that issue. He had this background fighting against entrenched power, starting as a community organizer. So it’s not that he doesn’t understand the dynamics.

LESSIG: The question is whether he feels liberated now. It’s like the business model for success is to win reelection. You’ve only got to do it once. Once you’ve done it, everything’s gravy, so why not try to get as much of this done as you can.

CW: Talk a little about your idea for what needs to be done, which has to do with the way we finance campaigns.

LESSIG: The problem in my view is you have a system which creates a dependency upon a tiny fraction of the 1 percent, the funders. And the funders are not the people. And we’re not going to change the fact that Congress is dependent upon its funders, but we can change who the funders are. We can make it so the funders are the people, all of us are funding. And the simplest way to do that is to do one of the many versions of bottom-up funding proposals, which would make it so that members are sensitive to the wide range of views as they are raising funds for their campaigns, just like they’re supposed to be sensitive to the wide range of views as they try to get the votes they need to be elected. We can talk about the kinds of public financing bills that would achieve that. It doesn’t emphasize the Citizens United issue. It doesn’t emphasize the corporations-are-persons issue or money-is-speech issue. I think that framing is a distraction to the underlying issue that’s at stake here. I think we’ve got to find a way to educate and to build this movement around the need for this kind of citizen-funding of elections. And then, the second order question is, do we have a way to address the problems that might be created by Citizens United? But I think that’s second. First is the funding issue.

CW: You talk about one model that you call the Grant and Franklin Project. Describe how that would work.

LESSIG: The general category here is small-dollar funded elections, citizen-funded elections. And there are basically three versions. There’s a matching grant version, where I give $100, the government matches it. A second proposal is a tax credit. If I give a $100 contribution I can take $100 tax credit on my income taxes. And the third proposal is a voucher proposal: We’re going to give out the resources to everybody, and people can then use those vouchers to fund campaigns for candidates who are taking small contributions only.The Grant and Franklin Project is a voucher program. It says, every voter gets a $50 voucher [the Grant half of the name, since he appears on the $50 bill]. They can give those vouchers or any part of them to any candidate who agrees to take only vouchers plus contributions of up to $100—that’s the Franklin side [since Franklin is on the $100 bill]. This is one of a number of proposals that are out there now. I think it’s an idea that could really spread—the possibility of ordinary people funding elections broadly as opposed to much narrower, less ambitious reforms, which are coming out of the inside-the-Beltway think tank groups.

CW: We had a very brief experience with public funding of state elections in Massachusetts through the Clean Elections law passed here in the late 1990s. But the Legis­lature hated it and voted to scrap it, and it died with little more than a whimper. Why don’t you think there was more public outcry or push back?

LESSIG: You have to have reasonable expectations about the public. The public did its job by rallying and actually voting for the referendum that created it. I think it was unfortunate that it was structured in a way that basically allowed the Legislature to short-circuit it. It’s a lesson in how to do this in the future. If there had been a number of elections in Massachusetts funded in this way, you would have had a much stronger public recognition of why this was important and valuable.

CW: Nine or 10 percent of people, according to polls, have faith in Congress, 75 percent think money is what carries the day there. Yet it seems that campaign finance reform is one of the great duds of public-interest issues in terms of capturing people’s imagination, getting people mobilized or revved up.

LESSIG: I just think it’s a framing issue, a framing problem. If you’ve got an alcoholic uncle and you talk about the liquid intake problem he has, that’s one thing. If you talk about the alcoholism he has, that evokes a very different sense in people. Same thing here. I don’t talk about this as campaign finance. That’s so generic. This is a corruption issue. When you frame it as corruption, 87 percent of Americans say this is a top issue the next administration should consider. That was the second of those top 10 issues. So I don’t think America is disconnected from the importance of this. I think what America rightly says is: What are we going to do about it? And whenever Con­gress comes forward with an idea, people say, yeah, well, so what? Why would we trust you?

CW: So we truly have the fox guarding the chicken coop?

LESSIG: That’s right. But I don’t think ultimately this is going to be a hard sell. You know, when I first started working in areas of copyright back in the late 1990s, that was an issue where it was genuinely difficult to see how we would get people to see why this was important. Because you started from the position where most people were on the other side of the issue. Most people thought, why shouldn’t Disney own Mickey Mouse forever? But this is an issue where, you do the polling, and people are on our side from day one. The question now is how do you motivate them? Harvey Milk says how do you give them hope so that they have a reason to want to push the issue and get something done about it?

CW: You’ve written that the Occupy movement and the Tea Party, though with wildly divergent outlooks on a lot of issues, were both tapping some common frustration with the influence of big money in politics. You have been part of an effort to try to bring some of these groups together. What do you see in those two movements, both of which, frankly, were kind of flashes in the pan? They came and went, at least in an overt way, really quickly.

LESSIG: I don’t think the significance of them is the particular movements. It’s more from demonstrating the potential for these things to rise up. I describe it in the book as the politics of body surfing, where you now have a good sense of the enormous power inside that wave, and you just have to be set up in the right way and be able to nudge it in the right direction once another wave like this comes. The hard thing here is that the business model is so contrary to the normal business model of politics today, because it only works if it’s cross-partisan. And the number of cross-partisan movements that we’ve seen is really small. The thing here to think about is how you can get people of radically different characters to want to work together on this kind of issue, and that is what I think is the ultimate, most difficult challenge.

CW: You talk in the book about how the outsize influence of money harms efforts on the right as well as on the left, so you really do believe it’s an equal opportunity destroyer of genuine political thought?

LESSIG: I really believe this. I think people can come to see it. I’ve been most proud when I’ve had reviews of my book by conservatives, who say, yes, this is exactly right. It’s still hard to get people to want to talk to each other and to work with each other. I think that the natural instinct of too many people, especially progressives, is to embrace this kind of anti-corporate, anti-free market ideology, which in many ways I’m sympathetic to. It’s not like I think they’re wrong.

CW: But that’s not what this is about?

LESSIG: It’s not what this is about. It’s also certain to kill the movement. We’ve got to adopt a way of speaking that the other side can hear. Let’s get the reform through that makes it possible for politics to work again, and then we can go back to our fights.

CW: What’s the sense you have from the organization that you’re involved in? Do you feel some grounds for optimism about what’s happening?

LESSIG: I don’t have a lot of faith in the organizations. There are some that I think are really great. There are individuals I think are really super. But I think organizations have their own pathology. I’ve spent a lot of time just out in the field talking to people. In that experience, it’s always energizing and edifying because I just think there’s a real hunger out there for this and so we’re going to push as many ways as we can to get to it. But it’s going to take changes in a lot of things, including the dominant insiders. For example, one way to think about what’s happened over the last 30 years is we’ve had a strategy at the reform level of begging for crumbs, and it’s not worked.

CW: What do you mean by that?

LESSIG: I mean, people who were trying to get campaign finance reform, like, OK, let’s just limit soft money, instead of pushing for a recognition of why we need the fundamental reform of the way we fund elections. They wanted to do things they could win. They always were trying to get stuff they could win. They won a bunch of stuff, but we lost the war.

CW: You write, for example, about this issue of transparency, and that full disclosure of donations has done very little.

LESSIG: It’s done tiny little things. We’re at a point now where we ought to be talking about, what is the goal, what should we be aiming for that would give us the fundamental change we need? All of the people on the inside are proposing their own little matching-fund proposals, which is not changing the system fundamentally and probably half of the subsidy would go to large contributors, so it’s large donations that get to be matched. It is, to me, very frustrating because the focus can’t be “what are you going to win?” You can’t think in this way. It’s the tyranny of tiny minds here. We’ve got to think about how we build a real fundamental grassroots movement that gets big enough so that I can turn around and demand that stuff inside Washington change. That’s what I want to work on.

Meet the Author Michael Jonas Executive Editor , CommonWealth About Michael Jonas Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency. Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section. Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston. Michael lives in Dorchester with his wife and their two daughters. About Michael Jonas Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency. Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section. Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston. Michael lives in Dorchester with his wife and their two daughters.

CW: Rootstrikers is the organization you helped form to work on these issues. Explain where the name comes from and what it is suggesting.

LESSIG: I have this weird tie to Walden Pond. I got engaged at Walden Pond. It’s an inspirational place. Henry David Thoreau, at Walden, wrote, “For every thousand hacking at the branches of evil, there’s one striking at the root.” And that strikes me as the dynamic of this problem. We have all these people rallying to health care reform or climate change legislation or whatever the issues are. And all of them, I think, are wonderful souls pushing for the right thing, but they’re oblivious to the way in which they are not going to get it until they fix this fundamental problem. So Rootstrikers is aimed at trying to teach people, educate people, recruit teachers to this cause of showing people how it all comes back down to this root. We want to make it so it’s just second nature in conversations that, whatever the issue is, after you complain about it the next step is to say, see, this is because of the connection to money and whatever it is you want to do. And we think as you develop that recognition, so that no sane person cannot make this connection, you till the ground or make the ground fertile for the kind of reforms that we need here. So health care, financial reform, the debt, the taxing system — pick your issue. Regardless of the issue, we’re not going to make any sensible progress until we address this problem. So addressing this problem is fundamental, essential. It’s got to be the thing we do next.

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