A DISCUSSION OF LAW AND JOURNALISM

Lessig Pulls Back the Curtain in “Republic, Lost”

Lawrence Lessig

By Drew Carroll

It’s a cold winter evening in New York City. Walking up Manhattan’s tony Park Avenue, I approach 63rd Street and find it completely barricaded. A polite NYPD officer tells me I’m not going anywhere until the President passes. To an older gentleman standing beside me this wasn’t an acceptable answer. He pulls out a five-dollar bill and offers it to the officer in exchange for letting him cross the street. The officer coolly responds, “that’s what Obama’s here for — money.”

The president was in town for a fundraising blitz, one of a series on his schedule as the White House ramps up for the 2012 campaign. First stop, a thousand dollar a plate dinner at Daniel (don’t make the faux pas I did; it’s pronounced “Danielle”), a four-star restaurant offering haute French cuisine. Later, a more intimate gathering at Spike Lee’s joint fetched a whopping $35,800 per guest, which included the likes of Mariah Carey and her beau Nick Cannon. After riffing on Al Green’s “Let’s Stay Together” at the Apollo Theatre in Harlem, Mr. Obama headed back to the White House with a cool $3 million added to his coffers.

And members of Congress are no different, though because they don’t have the majestic office of the presidency behind them, they spend as much as half their time scurrying after funds. This frenzied search for donations and the ramifications it has on our system of government are the focus of a revealing and insightful new book by the Director of Harvard Law School’s Edmond J. Safra Center for Ethics, Professor Lawrence Lessig. “Republic, Lost” lays out two critical flaws in the way our government currently operates: elected officials’ depend on campaign cash in order to win elections, and the public assumes that this money corrupts the system and the politicians that operate in it.

The U.S. Supreme Court stated in its 2010 Citizens United v. Federal Election Commission decision that political donations “including those made by corporations, do not give rise to corruption or the appearance of corruption.” It’s a shame the Supremes did not have the benefit of reading ”Republic, Lost,” which explains the subtle influence of money in politics, and the affect it has on policymaking. Professor Lessig takes you behind the closed doors of Congress and K Street, which he believes consist mostly of good and honest souls who are acting rationally within a corrupt system.

History serves as a guide for how it all developed. Beginning in the post-New Deal era of the 1940’s, Democrats maintained a stranglehold over Congress for nearly 50 years. Ronald Reagan’s win in 1980 gave new hope to a generation of Republican politicians like Newt Gingrich, who would eventually lead his party back to power in both houses of Congress. Mr. Gingrich also ushered in an era when money became paramount in politics. Through a political action committee, Gopac, Mr. Gingrich raised millions of dollars from mostly anonymous donors, whose mission is “educating and training a new generation of Republican leaders.”  Elections became more competitive, and outlandishly expensive. The rising influence of paid media, along with larger, more expert, campaign staffs, fueled costs even more, leading to even greater dependency on fundraising.  The cycle continues.  

Professor Lessig portrays this desperate need for cash as a motivating factor behind a significant shift in democratic politics. Following the dismantling of the Democrat’s control of Congress, President Bill Clinton took up the Republican mantra of deregulation, aligning the Democrats more closely with Wall Street, which turns out to be a savvy move in terms of fundraising. This political calculation consolidated our two-party system into a pro-business party (the Democrats), and a really pro-business party (the Republicans).

The financial services industry spends more money than any other sector on influencing elected officials. Much more. More than the entertainment, insurance, and health care industries combined.

Consider the approach Washington has taken over the last two decades to policing Wall Street. In his last full month in office, President Clinton signed legislation exempting derivatives from regulation. Proposed banking regulations on risky loans during the George W. Bush administration were initially ignored, and were finally enacted as pale shadows of the original robust bills proposed. Professor Lessig writes that the question is not whether the campaign money explains fiscal policy, but whether the public can believe our policies resulted from anything other than a quid pro quo relationship between interested donors and the elected officials they bankroll.  He doesn’t think it can.

Professor Lessig proposes several solutions. First, limit the amount of money a single individual can donate to a campaign to $100. Former Louisiana Governor Buddy Roemer, who is seeking the Republican presidential nomination, self-imposed the $100 donation limit on his campaign, which he has built around the issue of campaign finance reform (perhaps that’s why you may have never heard of him). Contrast that with Newt Gingrich’s presidential campaign, which has been propped up by Las Vegas casino magnate Sheldon Adelson, who pumped $10 million into a pro-Gingrich super-PAC during the month of January alone.

To help engage the broader public in the electoral process a system of “democracy vouchers” would be created where any taxpayer who produces at least $50 in tax revenue would receive a voucher of equivalent value. The taxpayer could then distribute the voucher to any candidate who opts into this system of campaign finance. Any politician opting into the system would only be allowed to receive democracy vouchers and individual contributions of no more than $100. That’s it. No fancy fundraisers, and no super-PAC’s. By leveling the playing field, politicians would now have to amass large numbers of small donations. Professor Lessig says this system would take power away from wealthy donors like Sheldon Adelson, and give it back to “the People.”

How do we expect elected officials to reform a system they have become dependent on to stay in office?  Professor Lessig writes that we need presidential candidates like Buddy Roemer who have run on one policy and one policy alone: passing campaign finance reform. Even better, they should promise to resign once their mission is accomplished to avoid even the appearance of impropriety or political motive. Similar types of kamikaze candidates could be used to challenge members of Congress on the issue, which would help push the debate onto pro-campaign finance reform grounds.

If the system can’t be changed from the inside then Professor Lessig finds a last resort in Article V of the Constitution: calling a Constitutional Convention. The last such convention was in 1787 when the likes of Ben Franklin, George Washington, and James Madison gathered in Philadelphia to craft the Constitution itself. A rare even to be sure, partly because of how difficult those founding fathers made it to amend the document they created. Two-thirds of the state legislatures must request that a convention be held, not an easy feat especially in these polarized times.  If by some chance the call for a convention passes that test, any amendments proposed by the convention would need the approval of three-fourths of the states, either by a vote in state legislature or a separate state convention, in order to become part of the Constitution. The upside to a convention is that ordinary citizens could be chosen as representatives. The downside of the convention is, well, the possibility of it happening at all.

Still, it’s not impossible, and a convention to amend the Constitution could make permanent changes to the way business is done in Washington while avoiding the pitfalls of a fractured Congress, and the possibility of being overruled by the Supreme Court. This reform would truly be by the people, and for the people.

If this all seems a bit fantastical, well, that’s because it is. The author acknowledges as much. But Professor Lessig has done something in “Republic Lost” that our elected leaders in Washington have failed to, which is attempt to strike at the root of the problem.

There could be a silver lining to this explosion of campaign cash in the 2012 election cycle. Fred Wertheimer, President of Democracy 21, a pro-campaign finance reform organization says that the massive amounts of money likely to be spent during the upcoming election will result in a “historic national scandal…and we’ll have new opportunities for major reforms.” Mr. Wertheimer and others hope that the coming electoral spectacle will evoke such disgust amongst the American people that politicians will no longer be able to ignore calls for reform.

In the meantime, President Obama in his State of the Union address decried the “corrosive influence of money in politics.” The president should be commended for including the line in such a prominent address. But after observing the deluge of super-PAC funded negative advertising in the Republican primaries (the airwaves were literally filled to capacity with campaign advertising leading up to the South Carolina primary), the President’s re-election campaign announced that it would be supporting Priorities USA, a super-PAC founded by former Obama administration officials to aid the President’s re-election effort.

And so it goes, until the system is changed from within.

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