Republic Lost: The Corruption of Equality and the Steps to End It, by Lawrence Lessig
Review by Dave Gamrath
One-liner: If you want to understand the details behind the impact of money in politics, read this book.
Lawrence Lessig has gone into great depth to explain the evolution of increasing money in American politics and how it has destroyed our government, and thus our democracy from working. Lessig has addressed this issue from multiple angles and provides robust details on each. His argument is compelling: our government will not be able to function anywhere close to efficiently until we remove this problem. Lessig details how organizations on both the Left and Right are today attempting to fix this problem, and provides his own argument as to what he believes the most likely successful approach.
Lawrence Lessig states that we have experienced the collapse of our government’s ability to govern. The key reason for the collapse is the corrupting influence of money in political campaigns. Our Republic has been corrupted because we’ve allowed it to evolve into a structure of influence that denies the equality of citizens; a corruption of what is supposed to be a representative democracy.
We now have a fraud democracy, held by “tweedism”, named by Lessig for Boss Tweed’s famous quote “I don’t care who does the electing, as long as I get to do the nominating.” If the field running for office is highly, highly restricted, you don’t have a democracy. Candidate nominations are driven by money, where for a candidate to be credible they need to “show the money” they’ve raised from the tiny few people that give to campaigns. Thus politicians are obliged both to spend most of their time raising money, then highly obliged to those that donated to them. In America in 2014, ~5 million people (1.75% of our population) gave something to our political process, and of these the top 100 donors gave as much as the bottom 4.75 million donors, ensuring that these elite few have extraordinary power and influence. 0.02 percent of Americans give the max donation allowed to a campaign of $5,200. They drive who gets nominated, thus limiting us other 99.98 percent of Americans to only have the choice to vote for politicians the wealthy have chose to fund. In a true representative democracy, equality of citizens means that we all have an equal place. Equality of citizens should mean equal political empowerment. Money in politics destroys this. America has two primaries: a voting primary, but first a money primary, which Lessig calls the “Green Primary”.
Tweedism renders America ungovernable. Lessig doesn’t believe it has produced an aristocracy, a kleptocracy or a plutocracy. But it has created a “vetocracy”, where change of almost any kind, from the right or left, is practically always stopped, due to so many having the power to block proposed change. Thus sensible reform has become impossible. We have increasing efforts by funders to get what they can when they can, since everyone else is too. These funders are setting the rules in our markets, thus destroying what is supposed to be a free market. A vetocracy is a system that has perfected the ability to make decisions that are bad for society if they are beneficial to the few with power. Entire industries become untouchable, because to regulate them would be political suicide for the party in power or the party trying to get power. Exhibit #1: the financial sector, where we privatized the benefits but socialized the costs. Neither party can afford to make major industries (financial, pharmaceuticals, energy, etc.) their enemy.
Lessig believes that 90% of the problem of our political system is this concentration of funders. If concentration is the problem, then dilution is the solution. Instead of calling this just “public funding” he stresses we need “citizen public funding” of elections. In America today, there are two conceptually different methods for this. The approach more supported by Republicans is for vouchers, whereas Democrats generally support matching funds for small contributions. Vouchers would work something like giving voters a $50 gift card from which they could allocate to the candidates of their choice (as long as the candidates meet a minimal standard that guarantees legitimacy) and Lessig describes many details of this approach. The matching funds method would have government match small contributions, even at a ratio such as 9 to 1. Both of these approaches would cost tax payers something, but remember we’ve spent close to $1 TRILLION building democracy in the Middle East, thus this investment for democracy at home is peanuts in comparison. These approaches would limit the power of lobbyists.
The Supreme Court’s Citizens United decision did not open the floodgates of corporate money into politics, at least not directly. But it did lead to unlimited contributions to independent political action committees, and thus the super PAC was born. Because of a loophole in the way the law requires disclosures, corporations and unions (and billionaires) can effectively use super PACs to launder their contributions. If the entity giving money to a super PAC is itself a nonprofit, then all that must be disclosed is the name of that nonprofit, which may or may not disclose the names of its contributors. Thus now we have extensive “dark money” in American politics.
Lessig stresses that the inequality in our democracy comes from how money is raised, not from what it buys. He details how money in politics has skyrocketed in the past few decades and that this drove Democrats to be much more pro-business and drove both parties to be more extreme, albeit Republicans probably more so than Democrats. This extremism was needed to raise money. I.E., more money led to greater separation of the parties ideological positions. Both lobbyists and super PACs are eager to supply the cash that oblige policymakers to them. This normally does not take place as a direct quid pro quo, and thus is not seen as a outright bribe. Lessig calls ours a “gift economy” where the players never pretend to equate one exchange to directly to another, but also don’t pretend that reciprocating is unimportant. With this, we’ve seen a gradual shift of a politician’s loyalties from their constituents to those that have been doing them favors, I.E., behavior based on private friendships instead of the public good. Said another way, our gift economy is grounded upon relationships, not direct quid pro quos, which are banned. The seed for this economy was earmarks, which camouflage the passing of government funds to support private organizations. Earmarks are typically secured by lobbyists. Thus as the gift economy has grown, the lobbyist industry has grown. Organizations have gratitude towards the politicians that obtain the earmarks that support the organization, and thus have a hard time not saying “yes” when the politician comes calling on a fundraiser.
Lobbyists give their clients a huge return on investment: for every $1 that a firm spends to lobby for targeted tax benefits, the return is between $6 and $20. Capitol Hill is a farm league for lobbyists, I.E., working as or for a politician is a stepping stone to the big bucks of working as a lobbyist. There has been exponential growth of politicians retiring then moving to K Street to work as a lobbyist. The system feeds itself.
Lessig lists 3 key effects from our gift economy. One is that it can work both ways: not only are politicians reliant on donors, but too donors of the cash are victims of extortion by Congress. “Support my campaign or I won’t help you!” Second is the huge distraction money is on Congress, taking the majority of politician’s time. As the influence of money went up, the days in which Congress has been in session has gone down. Congressmen rarely sit together and debate anymore. Staffers and worse, lobbyists, now produce most of the legislative work. Congressmen just focus on raising money. Thirdly, it distorts the views and behavior of Congress. Congressmen are much more likely to support and give time to those that finance them. There are two key types of distortion. First is “substantive distortion” that maps the gap between what “the people” believe about an issue and what Congress does about the issue. Second is “agenda distortion” which maps the gap between what Congress actually works on and what “the people” want them to work on. This has led to the average American having near zero impact on public policy, and has helped drive our huge wealth gap. Obviously it’s the wealthy that are giving, and thus influencing, and from this their wealth is growing while for the rest of us wealth stagnates. All of this has helped destroy America’s trust of Congress.
This situation has hurt both the Left and the Right. On the left, it has led to defeats of the push for stronger regulations, such as on the financial industry. On the Right, it has hurt their desire of smaller government as politicians grow government to increase their fundraising targets. It’s added complexity to our tax code as lobbyists win tax breaks for their clients. And it has killed any hope for a “free market”.
Can Congress do anything about this? Lessig thinks they can, although he admits others will disagree. The key is in the word “corruption”. If a law from Congress is targeting corruption, even if it hinders “free speech”, which is protected by the First Amendment, that law is permissible. “Ordinary” corruption equates to bribery. This is corruption by individuals. Lessig claims we face a second type of corruption: institutional corruption, which is his books’ focus. He calls it dependence corruption. Lessig believes Congress can act based on this second type of corruption. We need a majority in Congress committed to fundamental reform, we need a president to lead that majority. And we need a public to demand that the president lead.
Lessig describes current movements on both the Left and Right demanding changes to our laws – in effect, movements demanding amendments to our Constitution. They have different strategies. Lessig fears they are destined to fail due to partisanship. Constitutional change has always been cross-partisan (not counting the Civil War). The Constitution outlines two modes by which our fundamental law might be changed. First is for Congress to propose amendments to the Constitution (which the states then ratify); second is for the states to call on Congress to convene a “Convention for proposing Amendments” to the Constitution, or the “Article V convention”. This is not a “constitutional convention”, as some call it, but rather a “proposing convention” which requires ¾ of states to ratify proposals resulting from Congress’s convention. States can ratify or refuse to ratify in either their legislatures or at state conventions, with the method being chosen by Congress. BTW: in the US, we have always followed the first mode: Congress proposing amendments.
Citizens United has driven the Left’s activity, which relies on the first approach, I.E., upon Congress. What is wanted can vary, but usually includes a declaration that corporations are not people and that money is not speech. The plan is that state legislatures pass a resolution “demanding” Congress propose an amendment. But these state resolutions would not legally oblige Congress, but are a fancy “please pass this” request, which Congress is free to ignore. Lessig believes “there is exactly a zero change that the US Congress is going to pass by a two-thirds vote an amendment to effectively reverse Citizens United. Zero.” He believes this so because Democrats have rendered the issue partisan, which is the nature of DC politics.
The movement on the Right has more substance and less process. It has pursued the second mode which calls for Congress to call a convention. For this to happen, two thirds of the states (~34 states) must make applications demanding Congress to call the convention. This has never happened before. Recently there have been up to 30 resolutions in state legislatures calling for Congress to call this “Article V convention”. Almost all of these would require the convention to only consider topics pushed from the Right, such as requiring a balanced budget, limiting taxes or shifting regulatory power back to the states, and some to even give state legislators or governors the power to select US senators. Lessig believes they will ultimately fail, for if they succeed in getting Congress to call the convention with this partisan, limited agenda, it will result in a huge fundraising gift to Democrats.
Lessig believes the solution relies on getting both the Left and Right to compromise. The Left needs to get real and move to the second option of calling for Congress to call for a convention. But the Right has got to lighten up on its restrictions for the scope of the convention. We need a conception of a convention that no one has any reason to fear. People have fears of a “runaway” convention where “extreme” topics are discussed. Lessig describes two safety values. First is Congress putting limits on the scope of the convention. These limits must be proper in light of what state legislatures have done. Thus the convention has no power to exceed proper limits that Congress imposes. If they did, unfortunately the courts would be unlikely to step in. The second safety value is the state ratification process. Remember, ¾ of the states, or 38, must ratify proposals from Congress’s convention. So, if Congress puts forward a “crazy amendment”, I.E., one that one side views as repugnant to their values or beliefs, just 13 states would need to oppose it to shut it down. Really it would take only one of the legislative state bodies (either the state House or the Senate) to oppose, so unless at least 38 states had one party take over both bodies, a crazy amendment would never pass. And Lessig argues that if 38+ states ratify something, well, that’s democracy, which is what we’re supposed to be living in anyway. Lessig states that the single argument made to him against his proposal is that “the convention will runaway.” To repeat: he thinks this risk is small. And he asks “what is the risk if we do nothing?” Good point. (note: Lessig has a good summary on the bottom half of page 292).
Lessig points out that if a “normal” president made this his/her main issue, they would fail. Taking on both parties of Congress would guarantee that nothing the president wants will get passed. Lessig imagines a “referendum president”, a prominent American, preferably not a politician, that runs for office on the one pledge of doing this one thing, ending the “Green Primary” in America, then resigning. But we also need a sufficiently large enough fraction of Congress – not a majority, but enough – to push for this too. Call them “referendum representatives”.
Lessig states his goal and plan are not hopeless. He believes the most important challenge for this movement is getting the American public to better understand how money has made our government dysfunctional and how devastating that is to us, and get us fired-up to work for the change.
Very much worth the read, given this issue’s importance and prevalence. It also gives one insight as to why Bernie Sanders has made this issue primary in his campaign.