Liberty, Prudence, Imperfection, and Law

“The Lost Republic?,” By Edward J. Lopez

“Lawrence Lessig, February 2008” by Robert Scoble from Half Moon Bay, USA

Perceptions matter in politics. If Lawrence Lessig’s Republic, Lost: How Money Corrupts Congressand a Plan to Stop It  persuades, then the most dangerous place in politics today is the intersection where voter perception meets congressional corruption. In America’s democratic-republican system, it matters whether voters and representatives do their respective jobs, and it matters how each perceives the other to be doing their jobs. If everyone thinks everybody else is shirking, then no one is watching the republic, and it is thereby doomed.

This book advances the above core premise to argue that campaign finance has recently fastened a lethal grip of control over the polity, such that voters and representatives have increasingly come to perceive themselves, and each other, as doing very poor jobs. Neither money in politics nor congressional corruption is new, of course. Indeed, Lessig repeatedly praises today’s Congress for being less venal than perhaps any in history, and the 1995 Lobbying Disclosure Act deserves credit for that. Yet a newer, less direct form of corruption has become ubiquitous, causing each member to become distracted from constituent preferences and distorted into serving special interests instead.

Today’s corruption is different because it is embodied in what Lessig calls the influence economy, a concept that is intricately developed in the book’s early chapters. Again, Congress may not be anywhere nearly as venal as in the Gilded Age, but today’s Congress is just as corrupted by money. To see this, we have to appreciate that today’s Washington culture eschews and even scoffs at quid-pro-quo corruption (such as money for votes or money for government contracts). Instead, today’s Washington has come to prefer a more nuanced medium of exchange: connections. Namely, connections to people who will donate and raise large sums of individual contributions. Under the grip of the influence economy, members of Congress are essentially required to chase big money if they want to get reelected. And if they’re constantly chasing big money, then they’re not doing their jobs, and the republic corrodes.

Everything about the influence economy is legal; there can be no arrests for carrying out its ordinary business. However, being legal doesn’t make it any less corrupt. In chapter 9, a foundation of the book’s overall argument, Lessig fixes our baseline of an ideally functioning republic. It is the constitutionally intended function of Congress to serve as a deliberative body, one that talks about and therefore arrives at policies that would serve the public interest. This is how the American constitutional framers intended it, and this is the standard against which Lessig faithfully judges it. In particular, it is the House’s intended job as a representative body to be “dependent upon the People alone.” In thusly quoting Federalist #52, Lessig emphasizes that this deliberative, representative view in turn implies that the Congress, in particular the House, is intended to be “answerable to, relying upon, [and] controlled by…nothing or no one else” (128). Lessig challenges the reader to take “alone” seriously, and to recognize it literally. By answering to lobbyists and moneyed interests instead of constituents, members of Congress are distracted from doing their jobs because they must spend so much time fundraising rather than deliberating. The representative function of Congress is thereby distorted from serving the public interest. It is commandeered to shape the political agenda so as to benefit connected, moneyed interests.

When viewed against the vision of the constitutional framers, the influence economy is corrupting because any force that makes representatives dependent on anything other than the people alone is the definition of corruption. But we don’t just have to take the framers’ word for it. Today’s voters obviously perceive Congress as having been captured by special interests. The close of chapter 1 punctuates the point: “[W]hen democracy seems a charade, [this sends voters] a signal: spend your time elsewhere, because this game is not for real. Participation thus declines, especially among the sensible middle. Policy gets driven by the extremists at both ends” (9).

To put an end to this corrosion, Lessig’s reform proposal is grounded in two core assumptions. First, it is not necessarily the aggregate sum of spending that is corrosive but its composition—a large majority of money contributed comes from a tiny minority of people. More money in politics wouldn’t necessarily worsen the problem. It all depends on how distortive are the ways that money is raised and spent. Second, genuine reform requires entirely removing elected officials and candidates from the fundraising equation. The influence economy can only be broken up by putting the money in the hands of the people. Lessig proposes a number of specific ways this might be done. The most tantalizing scheme is the “democracy voucher.” Every voter receives a $50 tab, courtesy of the public purse, which can be allocated to any candidate(s) the voter chooses. In return for democracy-voucher money, candidates must promise to reject contributions over $100—thus relieving them of the need to chase big money, and thereby choking off the influence economy. Interestingly, if all candidates played the small-money game, the aggregate total could easily triple the $2 billion or so currently spent on congressional campaigns. But the distribution would be almost perfectly flat, like a picture of democratic equality.

In short, Republic, Lost presents two arguments that flow from the lost trust narrative. First, the influence economy may be legal but it nonetheless foments perceptions of corruption that corrode our political institutions. Second, money’s corruption of politics cannot be neutralized by further tweaking the existing edifice of campaign regulations. Instead, we need a structural solution.

One problem with the lost trust narrative is that it does not appear to be true. There is little conclusive evidence to indicate that campaign finance systematically diminishes voter participation, or buys votes, or decreases constituent service, or increases polarization. To his great credit, Lessig makes thorough attempts to acknowledge the bodies of empirical scholarship that bear on his arguments. Lessig acknowledges the results on vote-buying and turnout, for example. But on constituent service, he is undeterred. Invoking data on member time allocation, he shows that representatives allocate far less time to constituent service today than they did in the past. There is an unacknowleged reason for this that does not imply corruption but instead efficiency. The technology of constituent service has improved over time, which allows members to spend less time on constituent service without necessarily or even plausibly producing less of it. A second good reason is not benign but suggests reversing the arrow of causation. As the federal government has grown in size and scope, so too have the demands on member time. As for polarization, Lessig may stand on firmer empirical ground because the sharp increase in aggregate campaign spending since 1992 overlaps and partially coincides with the increase of party polarization over recent decades (both in Congress and among citizens). There is no doubt that intricate, scholarly debates over “the evidence” will roar on. There is equal doubt that empirical scholars will find much to quibble with in Lessig’s treatment of the measurable record.

A second question lurks beneath the claim that today’s corruption is new and different. For starters, there may be more instructive points of comparison besides stereotypes of Gilded Age venality. For example, a mere generation ago Congress was drowning in corruption, as a series of scandals came to light one after another. Most notably was the House banking scandal, in which 450 members were found to have been habitually abusing their member bank accounts. Most of these instances can be blamed on the curious practices of the House Bank itself, which issued neither account statements nor overdraft notices. Nonetheless, the scandal led to six criminal convictions of members and an additional twenty-two official sanctions by the House Ethics Committee. Notice that, although most of the abuse was later found to have been legal, it nonetheless fomented the public perception at the time that Congress was rife with corruption. Yet the effect was to agitate rather than deter voters. The Republicans’ success in the 1994 midterm elections was no small coincidence.

Like the response to today’s Congress, the 1990s uproar drew in the literati. In 1995 George F. Will published his influential book, Restoration: Congress, Term Limits, and the Recovery of Deliberative Democracy. Both books, Will’s and Lessig’s, argue in their respective times that congressional corruption is new in kind and dangerously close in magnitude to destroying the republic. The early chapters of Will’s Restoration analyze and try to understand what was viewed at the time to be unprecedented corruption in Congress. Like Lessig, Will argued that the type of corruption he observed was new. It was different in detectable ways from earlier, merely venal types of corruption. Unlike Lessig, however, in Will’s estimation the root of problem was not big money but excessive tenure in office due to undefeatable incumbency. Even so, both books provided the analysis to support what popular majorities in their respective times believed to be a silver-bullet solution to heal the diseased body politic. Congressional term limitation was the panacea of the 1990s. Presumably campaign finance reform would be today’s counterpart.

Still a generation before the House Bank scandal, the American polity was embroiled in the Watergate scandal, and the social unrest of the 1960s was evolving into the economic malaise of the 1970s. At that time, as in the early 1990s and now, many scholarly discussions became concerned with the idea that corruption was corroding our political institutions. In 1975 James M. Buchanan published The Limits of Liberty: Between Anarchy and Leviathan. While properly a work of philosophy, Limits was nonetheless half inspired by Buchanan’s first-hand observation of widespread discontent in society and his interpretation that the unrest was threatening public trust and social order. Like Will and Lessig after him, Buchanan’s concerns were also deemed to be new. As chapter 6 of Limits says: “There is a difference between the attitude of citizens toward the institutions of their society in the 1970s and the attitude that existed before 1960. Faith in the ‘American dream’ has largely disappeared, and restoration does not seem in the offing” (Buchanan, 116).

The point of introducing these examples is a twofold suggestion: first, the bar is high for any argument that today’s corruption is new and different, and second the republic that managed to survive the 1990s and 1970s may be more resilient to corruption than the lost republic narrative would have readers believe.

Finally, while the reform idea has many virtues, its main problem is that it will not work. Flattening the distribution of money in politics won’t necessarily improve public trust, and that is precisely because the money is given to the people. Because voters have lives to lead, very few are willing to incur the costs of informing themselves about candidates’ policy positions, or to research the effects of proposed policies, or to discern honestly which side of a partisan battle truly makes the better argument. Instead, a large body of research shows that voters make their choices using lower-cost information like sound bites, selective statistics, and charisma. Voters are also given to a number of cognitive biases that blur the lines between reality and rhetoric. As we’ve seen in Lessig’s argument, for example, the perception of corruption can matter more than actual corruption does. In turn, politicians have the incentive to spread information that confirms voters’ biases, not information about the truth of policy proposals. It is common, for example, to see elected officials tout the gross benefits of a policy proposal without acknowledging its net costs, as in 2002 when President George W. Bush raised steel tariffs ostensibly to protect American jobs. It is easy for voters to see the jobs saved at US mills. Less obvious are the higher prices throughout the economy that burden consumers and jobs lost in steel-using industries.

It is perhaps understandable that voters with busy lives, who are comfortable in their worldview, might not run the numbers on the true costs of every policy considered by Congress. Understandable or not, systematic voter bias draws into question whether the republic is safe in voters’ hands. Under democracy vouchers or a similar plan, voters could very well end up selecting the same candidates they’re picking today. The people’s money could end up still flowing to candidates who are best at playing the political game, much as it is played today. Congress would still be handing out favors to special interests. And voters would still be winking that everything is okay. Having a democratic discussion, and giving the people $50 each worth of voice in that discussion, might not change very much.

Despite these potential pitfalls, this book and its reform plan shine brightly in their general thrust. Lessig’s pen is at its best when demonstrating why the usual approaches to neutralizing money always fail, and when advancing instead the idea that candidates need to be removed from the fundraising equation. It is an inspiring idea because it tells us there are deeper, more structural ways to think about the problem of money in politics. By scrutinizing the problem to the breadth and depth of Republic, Lost, Lessig provides a service of fundamental proportion. If this book has the impact it richly deserves, then the very terms of the reform debate will shift. Scholars, pundits, and policymakers need to join the discussion that Republic, Lost has sparked. The republic might be counting on it.


Edward Lopez is an associate professor of economics at San Jose State University. He is the author of The Pursuit of Justice: Law and Economics of Legal Institutions. Dr. Lopez is currently completing Madmen, Intellectuals, and Academic Scribblers: The Economic Story of Political Change to be published by Stanford University Press. This essay was originally published in April 2012 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

2 Responses to ““The Lost Republic?,” By Edward J. Lopez”

  1. gabe

    I would refer the readers to Jay Cost’s book, “A Republic No More….” as it offers a somewhat different view on the nature of current corruption – it is not new, either in spirit or form but rather a continuum with a slightly different nuance.

    I would also point out that all of these campaign finance reforms WILL fail – as the essayist above indicates due to voter ignorance / unwillingness to learn the issues but more importantly, and in some ways a cause of the voter ignorance, due to a Media that is clearly littler more than an organ for the proponents of progressive Big Government and its favored party – the Democrat Party.
    Limit corporate contributions, even (or especially) union contributions and the people would still be unable to accurately determine proper policy because the Media would continue to present IT’S case. There is simply no escaping this – or the regrettable consequences thereof.

  2. wlindsaywheeler

    “Republic lost”? It was never a republic! not a true classical republic. The ones that had a true republic, the Spartans, forbade the Spartans from engaging in the market place. The whole point was to prevent the banausos from engaging in and influencing politics. America is based on a mercantile/capitalist sociology, not a warrior sociology. The Venetian Republic lasted as a merchant republic because there was definite hierarchy and the cliques controlling it were merchants! Everything was about business. Second, it was a single religious state; was a total Catholic state. Venice was a successful commercial republic.

    The FFofA read too much of the classical authors to understand the need for Virtue and the Rule of Law but also imbibed the mercantilism of the times. John Hancock, Mason and businessman, instigated much of the revolution because he wanted to trade and make it as a rich person; he was a running trade against the tariffs. America is based on too many conflicting ideas which has never worked.

    As Socrates said, “When money is prized, Virtue is despised”. It is the same today. Nothing has changed from then to now. You can’t stop it. With the immigration crisis, 50 million Aztec and Mayan Indians, America is lost anyway. It is a totally failed state sinking into the Third World. There ain’t no way of saving it. It’s gone.


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