Lawrence Lessig

August 28, 2015

There are two stories about why Washington doesn’t work. One blames a corrupted process. The other blames Republicans.

Corrupted process sorts point to the grotesque inequality that has developed within our political system — an inequality that makes Congress ripe for capture by special interests, by giving the funders of campaigns unprecedented power. Four hundred families, the New York Times reports, have given half the money that has been raised in this election cycle so far. That extraordinary concentration makes it trivially easy to block reform of every sort, as candidates for every office bend over backwards to please their funders.

Anti-Republicans have a simpler story. The problem with our democracy, these sorts have it, is that we have badly behaving Republicans. Nothing can happen because Republicans block everything. Nothing can happen sensibly because Republicans have become so incredibly extreme. If only we could ban the party, or at least defeat enough of them, government just might work. But until we do — or until they grow up — nothing sane can happen.

Thomas Mann (with his regular co-author, Norman Ornstein) believe Washington doesn’t work. Their latest book — It’s Even Worse Than It Looks (2012) — is the best account of the pathology of Congress that I have read. After watching decades of decline, they write powerfully and with experience of the crisis of government that we face. As they say,

All of the boastful talk of American exceptionalism cannot obscure the growing sense that the country is squandering its economic future and putting itself at risk because of an inability to govern effectively.

The question is why? Why can’t we govern ourselves “effectively”? What change would make effective governing possible?

Mann and Ornstein acknowledge the problems that corrupted-process sorts focus on. They are brilliant in their description of the way money corrupts the system. They understand the cost of perpetual “begging for money.” As they write, “Time spent this way means less time to spend with colleagues, and since the money raised in many cases will go directly into campaigns of vilification against other lawmakers, it is not exactly conducive to working together.” They see what most miss — that even the threat of SuperPAC spending can fundamentally shift a politician’s focus. And thus, in their view, “a new framework for campaign finance” — one “based more on incentives than restrictions” — “remains a key component for reducing dysfunction in the American polity.”

But in the end, they believe that the real “root” to America’s problems is not process. It’s Republicans. As they write,

however awkward it may be for the traditional press and nonpartisan analysts to acknowledge, one of the two major parties, the Republican Party, has become an insurgent outlier — ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence, and science; and dismissive of the legitimacy of its political opposition.

Republicans have become “more loyal to party than to country.” “As a result,” as they conclude, “the political system has become grievously hobbled at a time when the country faces unusually serious challenges and grave threats.”

As a Democrat, it is easy to agree with Mann’s account. Too easy. It gives a simple foe. It validates a partisan frame. And it leads to scholarship as partisan cheerleading (I last met Mann at a Democratic Leadership retreat. My message: The system is corrupt — and you’re part of the system. His message: Republicans are nuts! Guess who got invited back?).

But the flaw in this approach is its incompleteness. In its rush to name an enemy, it misses Nobel Prize winning economist Ronald Coase’s core truth: that the cause of a problem is the part you can fix. And given that Republicans are here to stay, and that a Democratic supermajority in Congress is as likely as world peace, our focus should be on the parts of this system that have induced this Republican (and often Democratic) craziness, and on building a political movement to change at least those parts.

This incompleteness shows itself in Mann’s latest essay — an essay that charges me (and Donald Trump) with “the dumbing down of American politics” — “a reality,” Mann writes, just to show he’s as good with the rhetoric as any of us, “that will bring tears to the eyes of civics teachers and political science professors across the country.” (Oh, the poor civics teachers!)

My sin is my effort to make the corrupt inequality of our democracy the focus of the 2016 presidential election. I’ve said that if we can crowdfund $1 million by Labor Day, I will seek the Democratic nomination for President. But I would serve as president in a very specific way — a way designed to produce a mandate powerful enough to make change actually plausible. If I’m elected, I would serve only as long as necessary to pass fundamental reform. Once that reform is passed, I would resign.

That idea, Thomas Mann says, is “absurd.” The problem, he suggests, isn’t the money. The problem is “Republicans.” And so our focus should not be on fixing democracy. Our focus should be on defeating Republicans. That, Mann tells us, will be the “key.” “It is foolish to imagine that campaign finance is the only route for private wealth to influence public policy,” Mann writes. (And of course it is, though no one I know imagines that; what we’re focused on is how that influence actually happens now.) And “foolish,” he writes, to believe that “reform will dramatically transform the policy process.”

I’ll return to this bit of Mann-as-political-analyst later. The part I want to focus on just now is the incredible reversal from the view that he and Ornstein argued so effectively in their book. A “new framework for campaign finance,” as they put it in their book, is apparently no longer a “key component for reducing dysfunction in the American polity.” Instead, that idea is now “foolish.” Now, the “key” to solving our partisan problem is a renewed commitment to partisanship — just get those Republicans OUT!

No doubt the emerging extremism of Republicans contributes to the policy problems that we face. But the question we should be asking — as citizens and as scholars, not as partisans — is what forces induce that extremism? What in the system of influences makes it pay to be so extreme? What makes it so costly for Congress to behave as Congress once did?

And of those forces and influences, critically, which can we actually change?

The answer to that question would bring us back to the key insight that Mann and Ornstein had offered in their book: “These developments in campaign finance work in multiple ways to reinforce the partisan polarization at the root of dysfunctional politics.” And that insight is why Mann and Ornstein pushed so hard then for precisely the reforms that my candidacy intends to rally an election around.

But that insight is now gone in Mann’s piece attacking me. Money is a problem, he insists, but it turns out, not such a big problem after all. “Money,” he writes, “did not prevent the major legislative enactments of 2009–2010 — including the stimulus, student loans, the Affordable Care Act, and financial services reform.”

That statement is truly astonishing. Yes, when he had a super majority in Congress, Obama achieved an incredible success with the stimulus and student loan reform. But the Affordable Care Act was only passed, as Jonathan Cohn makes clear, after Obama made key concessions to pharmaceutical and insurance lobbyists. Those concessions were not given because millions of voters were going to rally to support drug companies or insurance companies. They were given because insurance companies and drug companies threatened to spend millions of dollars to defeat Democrats.

Likewise with financial reform: No doubt, Dodd-Frank was important reform. But as if by an invisible hand, it was crafted so as to give the lobbyists an almost endless opportunity to stymie and defeat the law. Core provisions have now been undermined or repealed — after well funded campaigns for change. And practically every Democratic candidate for President is now eagerly pressing for much more fundamental reform, to fix the obvious flaws in perhaps the most heavily lobbied bill in the history of the United States Congress.

Even more extraordinary, however, is the sentence that follows: “Nor is it likely to be the critical factor on climate change, immigration, infrastructure or jobs and wages.”

It’s not clear what Mann means by “jobs,” beyond creating a stable environment for the economy to grow. But if Mann means public works programs — which would be great — then like infrastructure spending, that is obviously tied to money — as Congress bends over backwards to keep the taxes on its campaign funders as low as possible.

Likewise with “wages”: if he means the minimum wage, then certainly the threat of the Chamber of Commerce spending millions to defend the absurd status quo will make that reform unlikely.

Likewise with “climate change [legislation]”: Here’s NASA Scientist Jim Hansen’s view: “I believe the biggest obstacle to solving global warming is the role of money in politics.”

And likewise with immigration. As Maplight reported, in the immigration bill that passed the Senate in 2013, interest groups supporting the bill gave 24 times as much to members supporting the bill as interest groups opposing; senators voting “yes” received 18.3 times more from groups supporting the bill as from groups against; Democrats supporting the bill received 16 times more money from groups supporting the bill than from groups opposed; Republicans received 77 times more from groups supporting the bill than from groups opposed.

Sure, of all the issues on Mann’s list, immigration is the most partisan. As Trump has shown, rallying the immigrant-hating base is a powerful political strategy. But to say money won’t be a “critical factor” is to confuse “critical” with “exclusive.” No one serious believes that money is the only issue. The question is whether money is an issue that we could get a strong enough consensus to change. The cause of a problem is the part we can change. Can we change this?

Mann believes we cannot. He believes we cannot — politically — rally Americans to the cause of reform. But that raises an obvious question: On what does he base that opinion? Because the data of many supports precisely the opposite conclusion. As Politico summarized the work of pollster Stan Greenberg:

“Voters aren’t stupid,” he said. “They’ve lived through two billion-dollar cycles paid for by these big interests.” Greenberg described focus group results in which he tested a hypothesis: How much trust could candidates gain just by proposing election reform? In a series of messages, he cycled campaign finance to the front of the candidate’s pitch. “If you present your reform agenda first, then support for your economic plan rises 12–13 points higher,” Greenberg said. “But people need to hear the reform agenda first.”

Did Thomas Mann’s focus groups show something different?

I get the appeal in blaming Republicans. I understand the attraction in good vs evil stories. I see the strength in the partisan rally. I get it’s a great strategy for winning elections.

But it is not a strategy for governing. We won’t have a functioning government until we create a functioning democracy. And it is precisely because of the rhetoric of Republicans such as Trump, that we have a chance now to build a campaign that rallies America to this obvious truth. There will be citizens of good conscience who argue against the idea of wealth equality. There will be liberals as well as conservatives who argue against the notion of speech equality. But who is going to explain to America that citizens do not deserve equal representation as citizens? Who’s going to defend the grotesque system that gives 400 families so much political power? If there is one truth for us that is self-evident, it is that a representative democracy should represent us equally. And if there is one truth that cannot be denied, it is that America’s democracy doesn’t.

Focusing America on that core principle may well be “dumbing down” the debate. I don’t think so. I think its a way to elevate the debate above the stupid partisanship that has disillusioned so many. I think it’s time to fight for a big idea that Americans actually believe and that was the core idea of our Republic: that a representative democracy represent its citizens equally. I think we could win that fight. And if we do, we would win something much bigger than yet another partisan election.

I’m happy to be called “absurd” and “foolish” for standing up for that ideal, and proposing an idea to get it. But when I am, I’m not sure it is I who am “dumbing down” the democratic debate. I’m not sure that’s debate at all.