Harvard Law Review Publishes My “Fixing Washington” Piece, Lessig’s Reply

From the new issue of the Harvard Law Review:

Fixing Washington

Book Review by Richard L. Hasen ::

REPUBLIC, LOST: HOW MONEY CORRUPTS POLITICS — AND A PLAN TO STOP IT. By Lawrence Lessig. New York, N.Y., and Boston, Mass.: Twelve Press. 2011. Pp. xiii, 383. $26.99.

CAPITOL PUNISHMENT: THE HARD TRUTH ABOUT WASHINGTON CORRUPTION FROM AMERICA’S MOST NOTORIOUS LOBBYIST. By Jack Abramoff. Washington, D.C.: WND Books. 2011. Pp. iii, 303. $25.95.

It is a tired cliché that Washington is “broken” and needs fixing. A 2011 Gallup poll found that sixty-four percent of voters had low or very low trust in members of Congress, the lowest percentage ever recorded by Gallup for a profession and below trust ratings for lobbyists, telemarketers, and car salespeople. The recent economic downturn has not only coincided with record-low approval ratings for Congress and with general lack of trust in government but also produced two protest movements: the Tea Party on the right and the Occupy movement on the left. Despite the fact that these movements come from the fringes of the Republican and Democratic parties, they share some common critiques of federal lawmaking: they condemn the role of lobbyists in Washington and the “crony capitalists” who hire them. From President Obama to Senator Rand Paul and former Governor Sarah Palin, there is a widespread sentiment that money in Washington skews political outcomes and that lobbyists are the fixers who cut the deals that help insiders benefit themselves at the expense of the public interest.

In their new and very different books, Harvard Professor Lawrence Lessig from the left and disgraced lobbyist Jack Abramoff from the right come to similar conclusions about what is wrong with Washington. Lessig’s book is a populist call to action for the people to “take back Washington” through campaign finance reform. Abramoff’s book is an autobiography that is part apology and part justification for a promising career that veered badly off track.

Despite the different starting points, the books end in much the same place. Lessig and Abramoff both want to take lobbyists out of the fundraising business, breaking the connection between money and lobbyists’ legitimate information-providing function. They seek to close the revolving door between Congress and lobbying shops because of the inherent conflict that arises when officeholders or staffers start thinking about post-government lobbying jobs. They part company on what else is needed, however: Lessig wants publicly financed campaign finance vouchers to lessen further the power of special interests, while Abramoff wants to shrink the size of government to give lobbyists a smaller target.

Together, Lessig and Abramoff offer a mostly convincing critique of how lobbying skews public policy and can harm the United States. The books demonstrate that lobbying can thwart the public interest, especially when players with much at stake use lobbyists to block or alter legislation on issues that lack salience with the general public. Although it is tempting to focus on Abramoff’s admittedly illegal behavior, both books illustrate that much of the problem with the relationship among 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 should be less with exchanges of dollars for political favors and more with the decline in national economic welfare that 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 quid pro quo corruption, however, threatens the constitutionality of reforms in a post–Citizens United world.

Nonetheless, while the critiques of the Washington status quo are well made, both books offer incomplete reform agendas and unconvincing paths 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 emerge from the highly partisan and ideological nature of Congress and the presidency; polarized views on the nature of the public interest; 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 state of toxic politics and institutions inadequate to constrain 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 the left and the right from getting their agendas passed. It is hard to see that money has been the primary stumbling block to enacting competing agendas simultaneously. When it comes to high-salience, big legislative questions such as immigration reform, the primary barriers to reform are partisanship, deadlock, 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 that Lessig advocates stand any realistic chance of being enacted under current political conditions. Lessig acknowledges the hard road ahead, but even so he seems overly optimistic. For example, he suggests there is a ten 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 that would make reform of money in politics only a partial solution to a 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’s money problems may have to await widespread scandal, and fixing its broader problems likely will have to await a societal shift that alleviates the partisanship currently gripping national politics.

126 Harv. L. Rev. 550 (2012) | DOWNLOAD PDF | WESTLAW

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A Reply to Professor Hasen
By Lawrence Lessig

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