Category Archives: conflict of interest laws

I have posted this draft book review essay on SSRN.  Here is the abstract:

This Essay reviews recent books about lobbying, campaign finance, and the problems of Washington by Lawrence Lessig and Jack Abramoff. Together, Lessig and Abramoff offer a convincing critique of how lobbying skews public policy and can harm the United States. The books demonstrate that lobbyist fixers can thwart the public interest, especially by blocking or altering legislation on issues which lack salience with the general public but which mean a great deal for the individuals players with the most at stake. Although it is tempting to focus on Abramoff’s admittedly illegal behavior, both books illustrate that much of the problem of money, politics, and lobbying stems from what is legal, not illegal. Indeed, although both Abramoff and Lessig present the problem as one of “corruption,” the real concern is less with exchanges of dollars for political favors and more with the decline in national economic welfare which occurs thanks to lobbyist-facilitated rent-seeking. Lessig also appears concerned with political inequality, although he distances himself from egalitarian arguments for reform. Defining the problem as one other than corruption, however, threatens reform’s constitutionality in a post-Citizens United world.
While the critiques of the Washington status quo are well made, both books offer incomplete reform agendas and an unconvincing path to enacting reform. Much of what is wrong with Washington has nothing to do with money in politics. Instead partisan gridlock and the divergence of legislative action from the apparent public interest emerges from the highly partisan and ideological nature of Congress and the presidency; the breakdown of civility and an era of “gotcha” politics; and structural impediments to enacting legislation, such as the Senate filibuster and changes in the House committee structure. The current trend of toxic politics and inadequate institutions to channel such politics arose not from an outsized influence of money on politics but from a variety of sources, including the party realignment in the South following the civil rights movement and the resurgence of partisan media (and now social media).
Even if the authors’ complete reform agendas were enacted and the amount of rent-seeking legislation procured by lobbying significantly curbed, it is far from clear that Washington would be “fixed.” Lessig, for example, claims that money has prevented both left and right from getting their agendas passed. It is hard to see that money has been the primary stumbling block to enacting simultaneously competing agendas. When it comes to the high salience, big legislative questions such as immigration reform, the primary barriers to reform are partisanship and vetogates, not the role of money. In the rare circumstance when major legislative reform does pass, as in the case of health care reform, the passage of legislation further fuels partisan recriminations.
Nor is it clear that the kinds of fundamental campaign finance reforms which Lessig advocates stand any realistic chance of being enacted under current political conditions. Lessig acknowledges the hard road ahead, but even so he still seems overly optimistic. For example he suggests there is a 10 percent chance that a call for a constitutional convention to amend the Constitution to allow new campaign finance and lobbying reform could succeed. But the same partisan, sclerotic politics which would make reform of money in politics only a partial solution to broken Washington would also make the chances of calling a constitutional convention to enact a reform agenda much slimmer than one-in-ten. Fixing Washington may have to await widespread scandal or a societal shift which alleviates the partisanship currently gripping national politics.

This is an early draft, just going out to law reviews.  Comments welcome!