Declaration4Independence

A Declaration for Independence

Lawrence Lessig

Draft 1.0

© Lawrence Lessig

You can enter any of the office buildings of Congress fairly easily. There’s a metal detector manned by guards, obviously not happy with their TSA-like shift. The search is brief, almost fake. You’re then inside a building typically with long, beautiful hallways, onto which the offices of congressmen and senators open. Often the halls are empty. Silent. Almost abandoned. Then, seemingly at random, a single person may enter a hall, or a gaggle of staffers. And sometimes, at the center, is a Member of Congress. Harried, focused, typically reading something as he or she walks, often frowning, unless you catch his or her eye. Then you’re met, whether you know the Member or not, with an “of course I remember you” smile, for a second, until light won’t bend to you, at your angle, anymore. The race then resumes, to a typically meaningless procedural vote, or to a florescent-lit cubicle in an office just next to the Capitol, where Members spend hours cold-call fundraising, the only truly required work of Members of Congress.

It is easy in this mix not to notice the basic bankruptcy that is the First Branch of the Framers’ Constitution: Congress. The obsessively hard work of the staff, the fawning of visiting constituents, the respect of uniformed officers—all that fuels an obliviousness to the basic failure of this the democratic core of our government. Public cynicism about Congress couldn’t be greater; public approval couldn’t be lower. (Rasmussen, for example, recently reported that for the first time, favorable views about the work of Congress fell to single digits—9%.) But most in Congress do their job as if the standing of Congress were simply not their concern. Members are loved locally, and that is enough. That the institution they serve is despised is irrelevant.

Nothing on the political horizon is going to change this. Bush v. Gore notwithstanding, the public still trusts and admires the Supreme Court. No matter whether Obama or McCain wins in November, the public will once again approve and admire the Presidency. But nothing will save Congress. Without fundamental change, the institution will remain despised and increasingly irrelevant. Power will continue to shift—as it has for the past fifty years—to the President and the Court. The core institution of the Framers’ democratic design, the institution that many of them were most proud of, will remain essentially bankrupt.

That’s a strong term. But it predicates well of Congress. If the credit of any public institution is trust and respect, then Congress is, as Websters would define it, “discredited, having forfeited all credit.” Not because of any particular decision, or failed vote. Most couldn’t name one thing Congress did or didn’t do that they object to. Not because anyone believes its Members (or most of its Members) are bribed, or evil people. To the contrary, Congress is filled with souls with an extraordinary commitment to the public. These are good, not evil, people.

Rather, Congress’s “credit” is “forfeit” because of a profoundly deep sense among most that the machine that Congress is is simply bent. Like a rigged slot machine at a casino, or a balance sheet by the Enron accounting department, the vast majority of Americans don’t believe that the answers Congress gives are the right answers for the right reasons. Most believe that they track something else entirely: not sense but dollars. And not the dollars of an illegal bribe (though no doubt, too many believe this too), but the dollars that fund the essential element of congressional tenure—campaign contributions.

America’s view of Congress’s behavior is not likely correct. Political scientists are almost unanimous in their judgment that there is no simple quid-pro-quo to what Congress does. If there is improper influence, it is far less direct, or obvious. Any improper influence is well hidden in the web of relationships that power attracts.

But this is one of those crucial contexts in which perception is reality. Congress is bankrupt because the people see it so. Why America sees as it does is obvious; likewise obvious is what Congress must do to change that belief. Not obvious, however, is how that change gets effected.

1.

The Framers of our Constitution were obsessed with the idea of “independence.” Not the “independence” of 1776. Rather, an independence that many feared the people and the Nation had lost by about 1785. “Independence” in the sense of a lack of dependence. The “independent,” as Blackstone put it, has “no rule to pursue, but such as he prescribes to himself.”¹ He needn’t conform himself to the will of others. He was free to follow what was right, or just.

Dependents didn’t have this freedom. Until their “independence,” as Jane Austen often described, sons were not free of the will of their parents.² Laborers were tied to the interests of their employers. Magistrates dependent upon the King couldn’t defend rights against the King. In each case, dependency sapped the soul. If not but temporary, it would corrupt. As Jefferson described, dependence “begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition.”³ It was therefore the Framers’ vision, a “Republican ideal,” that the individual, the representative, and the Nation would be protected from this type of “corruption,” by protecting the individual, the representative, and the Nation against improper dependency.

By about 1785, however, many feared this ideal had been lost. States-centered democracy had produced an insane mix of nation and state destroying regulation. Congress had little power to respond. Growing and improper dependencies were diverting representatives from any public good. Insufficient independence disabled the executive and the courts from resisting unjust, destructive legislation. “[S]peculating Legislatures,” a delegate to the Constitutional Convention observed, were “plundering” the people “throughout the U. States.”⁴ A deep and pervasive “corruption” seemed to be spreading across the Republic.

The solution was to build institutions, or constitutions, against improper dependency. “Each department,” Madison argued in Federalist 51, “should be as little dependent as possible on those of the others.”⁵ That independence would give these departments the means to do their job properly. Indeed, the only proper dependency identified in the whole of the Federalist Papers was the ultimate dependency of the government upon “the People.” In every other respect, corruption inducing dependency, as Duke’s Zephyr Teachout effectively argues,⁶ was the single most prominent target of the Constitution’s design.

It was a powerful plan. Human nature, however, proved more powerful. For most of its history, even the crudest forms of corrupt dependence continued to thrive within our government. As Harvard professor Dennis Thompson writes,

In the nineteenth century, respected members openly accepted money for personal use from companies directly affected by the legislation the members supported. Daniel Webster, for example, was on retainer from the Bank of the United States. While serving as the bank’s leading defender in Congress, he not-so-subtly reminded its president, “If it be wished that my relation to the Bank be continued, it may be well to send me the usual retainer.”⁷

And it wasn’t just Webster. The 19^th century was a cesspool of political corruption. “Bribery” in Congress wasn’t even a crime until 1853. And the spoils were not limited to the politicians. In many districts around the nation, over 25% of the votes were expressly purchased by some local interest.⁸ Politics was just another market, for both the citizen and the politician.

The 20th century, however, was better. Much better. Many more went to Congress with an ideal in their head. Many more were believers, believing their public service was service to the public. “Corruption” in its traditional sense of bribery fell dramatically. The policing of improper personal gain rose effectively. “Most informed observers,” as Thompson describes, “believe that the legislators’ integrity and competence are greater than in the past.”⁹

But just as Congress was learning well how to immunize itself from obvious, or plain, corruption—just as it institutionalized, that is, a ban on this one kind of dependency—a different dependency began to sweep the Hill: the dependency upon private funding for public elections. Gone was the 19^th century grotesque. In its place was a far more subtle and pervasive structure of dependence: campaign fundraising. Consuming anywhere from 20% to 60% of a Member’s time, and for some at least, overwhelming their attention. The system of private funding to keep their job became the job. No other task comes close to this job of keeping the job.

Certainly, one part of this cycle is perfectly appropriate. A Member of Congress is dependent upon reelection. That dependency gets practiced by meeting with and responding to constituents. That in turn affects how Members do their job: how they vote, what issues they push. A Member will ignore the will of her constituents only to her peril. In this sense, she is dependent upon them. Yet that dependency is the essence of a democracy, even if it (sometimes) competes with good policy.

But equally certain, the other part of this cycle—the part spent raising the funds to wage the campaign to keep the job—is not clearly appropriate. Or better, the dependency birthed in this other part is not clearly appropriate. For no doubt, this part too is its own dependency. No doubt, it constrains the freedom and judgment of a representative. But is it a proper dependency? Is it the sort our Framers would have respected? Is it one that we should continue to tolerate?

2.

Imagine your son was diagnosed with a life threatening disease. His doctor prescribes a new, as yet unproven drug to attack the disease. You then discover that the doctor had a deal with the drug company: for every patient the doctor prescribed, the doctor would get a (substantial) kick-back from the drug company.

I take it most would find this to be outrageous. We want our doctors to decide which drugs to prescribe based upon the merits of the drug, alone. We don’t want our child’s treatment affected by whether the doctor wants a new car.

Now change the hypothetical slightly: Rather than a payment to the doctor directly, imagine the drug company paid the hospital that employed the doctor. And imagine the payment was not so conditional. Drug companies would send the hospitals checks for “allied” doctors. The hospitals could use the money to fund research, or subsidize care, or even, indirectly, pay the salary of doctors. And imagine finally hospitals started telling doctors: “Your tenure at our hospital depends upon you attracting enough ‘allied’ payments from drug companies. Unless the drug companies show us ‘the love’ for you, you won’t see ‘the love’ from us.”

I take it that most wouldn’t see much difference in these two stories. Again, we don’t want the decision about which drugs our kids get to depend, directly or indirectly, upon how it pleases the drug companies. We’d want to be assured that such an influence was not part of the doctor’s decision. We’d want him to be independent of that influence. The interests of the drug company are not necessarily the interests of your son. And it is the interests of your son you want the doctor to respond to.

Carry these same intuitions over to Congress. Imagine Exxon promised your Senator $10,000 if she voted to free the Arctic Refuge for drilling. As with a kick-back for prescribing a certain drug, we all (the law included) would condemn such payments. It is a crime for a Senator to take a payment in exchange for a vote; it is even a crime simply to take a gift of $10,000 from Exxon, even if unrelated to any vote. Indeed, today it is even an offense to accept a free lunch from an Exxon lobbyist. Direct personal gain is the easy case for government ethics, and for all the reasons we’ve already rehearsed: We want our representatives to decide matters of public import independent of personal gain. We thus ban this personal gain whether or not there is any proof that such a gift affected any public decision.

But what about the next step in the analogy? Like the drug company’s payments to hospitals for “cooperating” doctors, what about contributions to a Senator’s campaign?

The tenure of a Senator depends upon raising an enormous amount of money to fund a campaign. That “enormous amount” comes in part from the gifts of interests such as Exxon’s. Members of Congress recognize this fact every moment of their public and private life. They spend an enormous amount of both their public and private life trying to raise this enormous amount of money. So if there’s an issue with a free lunch from an Exxon lobbyist, is there an issue with checks written to a Senator’s campaign from companies, or their PACs, trying to show their love?

In the ethical universe occupied by most in DC, the answer is: (plainly and obviously and emphatically) No! There is no issue of ethics. There is no problem of corruption. There is just the way we’ve always raised money to run campaigns for public office (that is, privately). In the world of DC ethics, this question is as easy as the question of bribery, even if the answer to the question is different.

Why this is such an easy question, however, is not exactly clear. For every single problem that exists with personal gifts exists with campaign contributions. Every single distortion that we fear with the one exists, at least potentially, with the other. Even if the pull of a personal bribe is stronger than the temptation of a campaign contribution, the contribution is more pervasive, more systematic. So why is the personal gift so ferociously policed, yet the campaign contribution given a free pass?

The answers here are familiar and well rehearsed. The simplest is often fiscal: “How could it be any different? The cost of publicly funding public elections would be enormous.”

Notice the same argument exists with paying doctors. But would you sacrifice an independent doctor for a lower fee? (Of course, experts would question whether doctors are, in fact, independent, but that’s a matter for another essay.)

In any case, the cost of public funding is in fact not, relative to anything else the government does, enormous. The estimated cost of full public funding for Congress is about $2 billion an election cycle—just about one Wii (weeks in Iraq) at current spending levels. If public funding eliminated just half of the subsidies estimated by the Cato Institute to have been given to private businesses in 2001, it would pay for itself for 80 years.¹⁰ If it eliminated just half of the tax breaks Congress considered renewing in 2007, it would pay for itself for 200 years.¹¹ More sophisticated responses look at the data, and ask, “Is there evidence to suggest that the money actually changes results? Because if there isn’t, why regulate? No harm, no foul.”

The political scientist will insist there is not. Or at least, that there is no good evidence that money affects results directly. Despite generations of empirical work trying to show the quid-pro-quo many believe must be there, nothing has been found. And indeed, as one of the very best articles produced in a generation argues, in some ways at least, the effect of everyone’s favorite bogeyman—the lobbyists—may actually be good, giving Members of Congress precisely the resources they need to do their job better. For lobbyists, as Richard Hall and Alan Deardorff argue, don’t spend their time trying to “buy” votes; they don’t even waste their resources trying to convert votes. Instead, lobbyists spend most of their resources supporting people who already support them. Their work is thus a kind of legislative subsidy to a congressional office—providing research, arguments, and supporters that support what the congressperson already believes.¹²

Yet even Hall and Deardorff don’t argue that lobbying—and by extension, we might say, contributions—has no systemic effect. It is only that its effect is not to change votes. Yet even without changing votes, the dynamic can skew Congress’s work in predictable ways.

Imagine, for example, you’re a new congresswoman, coming to Washington with two issues that are crucial to you—the plight of mothers in the military, and the piracy of copyrighted music. You open the door to your office on Day One, and you find a line of lobbyists keen to help on the piracy issue. None, however, have any interest in helping on the problem with mothers in the military. You respond to the offers accordingly—and in the process, you feel pretty good about what you’re doing. You’re not working against any interest you may have. You’re working for issues you care about. You’re advancing a cause you presumably came to Washington to pursue—just not all the issues you came to Washington to pursue.

In this way, this dynamic changes government. The work of Congress gets diverted. The issues that get attention are different from what they otherwise would have been. Think about Bill Gates’ claim—“fifty times the amount spent on researching malaria goes to finding a cure for baldness”¹³—and shift the reference to government: In fifteen words, you have a picture of Congress.

3.

“But is this really it?,” you might ask. “That the dependency of private funding simply shifts the focus of Congress? That’s all? And if so, is this really the issue to worry about?”

This is where I got stuck for most of the time that I’ve thought about this question. No doubt there’s a theoretical harm here. But what’s its practical effect? Why should a reformer worry about this before she worries about health care? How could a reformer justify working here when there are issues like global warming that need a solution too? If we have removed the worst kind of corruption—if Randy “Duke” Cunninghams are now the exception, and if Jack Abramoff no longer rules—is this really an issue we can afford to worry about?

One response would be to quibble with the scientists. For not everyone not armed with political science PhDs believes the story is this sanguine. Many former Members of Congress, for example, are quite convinced that money has a significant effect, certainly on the agenda, but also on the results. They may not have the t-statistics to prove it. But they believe it nonetheless.

For example, many believe that money at least buys access. As Representative Romano Mazzoli (D-Ky) put it, “People who contribute get the ear of the member and the ear of the staff. They have the access, and access is it. Access is clout.”¹⁴ Or as Senator Paul Simon put it, when you’re handed a stack of telephone messages at the end of the day, most of which are from people you’ve never heard of, and one from someone who has given you $1,000, “which call do you think you’re going to make?”¹⁵ “[T]hey see it as an investment,” Representative Tim Valentine (D-NC) explains. “They’re good business people. They’re not going to throw money down the drain.”¹⁶

Even if money doesn’t shift votes on the important issues, many believe the issues most important to those who give are often not “the important issues.” “The public will often look for the big example,” Representative Eric Fingerhut (D-Oh) put it. “They want to find the grand-slam…. [R]arely will you find it. But you can find a million singles.”¹⁷ One especially important class of those “singles,” for example, is anything Congress does with money. These decisions, Representative Mel Levine (D-Cal) believes—decisions affecting anything “on the tax side, the appropriations side, the subsidy side, and the expenditure side”—“are clearly weighted and influenced by who has contributed to the candidates.”¹⁸

Finally, political scientists notwithstanding, many remained convinced that the system “compromises” Members directly. “There are some colleagues that I’ve worked with,” Representative Leslie Byrne (D-Va) described, “whom I think it does compromise. They feel like they have to ameliorate or change their position … for fear of losing certain contributions.”¹⁹ Fingerhut believes the same:

It is very difficult for me to accept … that people [don’t] consciously or subconsciously tailor their views to where they know the sources of campaign funding can be.²⁰

Sometimes this tailoring is plainly self-conscious: As Representative Byrne recounts:

I remember the comment of a well-known, big money-raising state delegate from Virginia. He said, “Lean to the green.” And he wasn’t an environmentalist.²¹

All these views have fueled a new generation of reformers who seek to bring “transparency” to the functioning of Congress. The Sunlight Foundation, for example, has spent millions to make the link between contributions and results clearer. One of its grantees, Maplight.org (on whose board I sit), has developed brilliant new technologies (if we don’t say so ourselves) to help track in real time the link between contributions and results. Days after the House voted to grant immunity to telecom companies for helping the Bush Administration spy on Americans, for example, Maplight.org released a study of the 96 Democratic Members of Congress who had switched their vote to support immunity. On average, flip-flopping Democrats received almost two times the money from telecom companies as those who stood firm against the immunity. No one will say, of course, that the money caused the flips. But we believe far more than we are willing to say, or can prove.

Yet even if you credit the political scientists and dismiss the experience of Members of Congress, there are still important reasons for reform. Indeed, perhaps the most important reasons for reform. For I’ve come to believe that this isn’t just one among a number of important issues. It is the issue. It is the single issue we need to solve if every other important issue is going to have a chance of being solved sensibly. The dependency of modern campaign finance is the single most important cause of the bankruptcy of Congress. Fixing this bankruptcy is the single most important reform effort that Americans face just now.

That’s not to say there aren’t other, extraordinarily important issues that America faces. Of course there are. Global warming is at the top of my list. The peace in Iraq may be at the top of yours. But fixing the bankruptcy that is Congress is the first step to solving these other issues. Without this first step, the other reform simply won’t happen.

Think of it like this: We’ve all known, or been harmed by, or harmed others as an alcoholic. We all therefore understand something about this particular dependency. One thing we understand is this. An alcoholic might face many critical problems. He might be losing his job, his marriage, and his liver. All three of those are among the worst possible problems a person could face. But we know he won’t begin to solve those problems until he deals with his alcoholism. Alcoholism isn’t the most important problem in the mix. It’s just the first problem. ’s the problem that must be solved before anything else can get solved.

So too with the dependency that is private funding of public elections. To see why, however, we need to see more about how this dependency harms.

There are three distinct buckets of harm that I describe here. The first is the least remarked upon by those who push for public funding of public campaigns—perhaps because it is a concern for people on the Right, and so far, the push for public funding has been from the Left. The second is the most common, the cost we all expect: the skew in results produced by this perpetual dependency.

But it is a third that ultimately swamps all others. For it is this cost that ultimately debilitates our democracy. The dependency of private funding of public elections destroys the conditions under which trust in a democracy gets built. Yet we are so far from a world where we might trust this democracy that the very idea of trusting government seems to most simply bizarre.

a.

One year into his administration, Vice President Gore gave a speech at UCLA, laying out the Clinton-Gore vision of the National Information Infrastructure (a.k.a., the Internet). Among the many proposals Gore sketched, one seemed small and technical: Gore proposed recrafting the Communications Act to add “Title VII.” Title VII was intended to deregulate Internet infrastructure. It would have removed DSL from heavy FCC oversight, and provide one consistent regulatory bucket, which would give Internet infrastructure providers a relatively free hand.

Gore’s team took this idea to Capitol Hill. As described to me by a member of his team, the reception was not favorable. “‘Hell no,’ we were told.” The concern? Translated: “How are we going to raise money from those guys if we deregulate them?”

Think about this dynamic for a second. Congress regulates some industry. That industry sends a gaggle of lobbyists to Capitol Hill to represent it. These lobbyists call upon Members of Congress to get them to do the industry favors. The more favors the lobbyist produces, the more valuable his capital as a Capitol Hill lobbyist.

But then Members of Congress call upon the lobbyists to do them favors in return. That’s the call made every time a Member asks for campaign support. And as you think through the dynamic of what it would feel like to be on the other end of that call (“Hello Congressman, nice to hear from you. How can I help?”), at least for someone dependent upon what Congress does (i.e., a lobbyist), it is impossible not to recognize the consequence. As Martin Schram concluded, after interviewing 25 former members of Congress, “The lobbyist must figure that he or she has no choice but to contribute—or risk being shut out, denied a chance to convince the member of Congress when the legislation affecting his or her special interest is being considered.”²²

This is, roughly speaking, extortion. And if so, then the Communications Act is a kind of extortion-enabling regulation: regulation whose reach was explained, in part at least, by the opportunity such regulation would give regulators to raise money.

And if so, then how much other regulation is extortion-enabling in just this sense? How many other examples are there of government reaching beyond what it needs to regulate effectively, merely to assure that Members can raise campaign funds more effectively?

b.

The dependency of campaign funding, however, doesn’t just, or most importantly, expand the scope of government regulation. More troublingly, it also queers the result of that regulation. Not just in the obscure corners of the U.S. tax code. Not just with, as Representative Fingerhut put it, “singles.” Instead, the bending produced by this distorting influence reaches some of the most important issues government touches.

It’s hard to see this bending ordinarily. Much of the work of government is difficult. To see that an answer was “bent” you need to know what the right answer should have been. If the right answer is hard, or contested, it’s difficult to establish that the wrong answer was given.

But not all questions that government faces are hard questions. Not all are genuinely contestable. Some are just right or wrong. There are 2+2=4 questions in government. And yet sometimes the answer the government gives to these questions is, well, not 4.

I’ve spent a decade fighting one set of those questions—those surrounding copyright in a digital age. Some of the policy questions in this area are hard. Many are not. In 1998, Congress passed the Sonny Bono Copyright Term Extension Act, extending the term of existing copyrights by 20 years.²³ The policy question here was not hard. In a brief filed in the Supreme Court challenging the statute, 17 economists, including 5 Nobel Prize winners, including Ronald Coase, James Buchanan, and Milton Friedman, argued the policy question was not even close.²⁴ (Friedman said he’d join only if the word “no brainer” was somewhere in the brief.) If the purpose of copyright is to create the incentives to produce, increasing the copyright term for work already created cannot possibly serve that purpose. Yet Congress passed the statute, this basic error notwithstanding.

Or think about nutrition. Experts agree Americans eat too much processed, sugar based food, and not enough unprocessed, healthy food. The World Health Organization agrees as well. At the beginning of the decade, it launched a program to set standards for added sugar intake, recommending no more than 10% of daily caloric intake come from added sugar. The industry went ballistic. According to their experts, a balanced diet would include 25% of daily caloric intake from added sugar. The industry got prominent members of the United States Senate to threaten the WHO with the withdrawal of funding from the United States. The WHO didn’t back down. But the industry was more successful back home. In 2002, the Food Nutrition Board, part of the Institute of Medicine of the National Academy of Sciences, voted to change the recommended daily allowances for added sugar to—you guessed it—25%. That means a “balanced diet” according to the United States government could begin with Fruit Loops, M&Ms, a glass of milk, with vitamin and fiber supplements for breakfast, a grilled cheddar cheeseburger for lunch, and three slices of pepperoni pizza, a Coke and cookies—sugar cookies!—for dinner.²⁵ Again, a policy question with an easy right/wrong answer, which government gets wrong.

Or consider finally perhaps the most profound misfiring of modern American government—global warming. Davis Guggenheim’s film of Al Gore’s lecture was a tipping point in public recognition of the threat global warming presented to America and the world.²⁶ But that tipping point came long after a consensus had developed among policy experts about the threat of global warming. As Gore describes the consensus:

The debate’s over. There are five points in the consensus. No. 1: global warming is real. No. 2: we human beings are mainly responsible. No. 3: consequences are very bad. No. 4: we need to fix it quickly. And No. 5: it’s not too late.²⁷

Researchers have tried to measure just how solid this consensus is. They conducted a study of 1,000 articles published in peer-reviewed journals between 1988 and 2003. Of the 1,000, 0% (or exactly 0) questioned the consensus around global warming. Yet a comparable study of articles published in popular news media found over 53% questioned that consensus.²⁸ The difference is accounted for by the extraordinary effort by oil companies and the like to fund and spread the results of junk science, questioning global warming in a manner that threw certain views into doubt. The result was political cover for the Republican Party’s campaign of Global Warming Denial. As strategist Frank Luntz put it in a memo to Republican leaders, “Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly. Therefore, you need to continue to make the lack of scientific certainty a primary issue in the debate.”²⁹

The list could go on—for a very long time. None of these questions are rocket science. Not all are esoteric matters about the regulation of culture. Indeed, some are among the most important public policy questions government considers. Yet all these, despite the ease, government got wrong. And wrong in a predictable way—the product of a dependency tied to money. Among the reasons for reform, this certainly reaches quite high.

c.

Yet this focus on consequences misses a much more fundamental harm: Whether or not money buys results, whether or not the access it assures changes outcomes, whether or not the process leads to more regulation than there otherwise would have been, whether or not money in politics is the root cause of global warming, there is one fact that cannot be in doubt: the dependency that is the relationship Congress has to money has eroded fundamentally the trust that Americans have in Congress. Put differently, it’s not the consequences that matter most. It’s the credibility, stupid. Congress’s dependence upon private money in public elections poisons the possibility of trust in obvious and predictable ways. And the flow of that poison won’t be staunched until this particular dependency ends.

To see this point, we need to think a bit more about how trust within institutions gets built. Consider two stories that might make this point clear.

1. Alteplase is a drug designed to treat what we used to call “strokes,” but which the pharmaceutical industry now calls “brain attacks.” In 1998, the American Heart Association conducted a study to evaluate its effectiveness. The overall conclusion of this study was positive, though there was a dissenting view. Nonetheless, when the AHA published its report in 2000, it removed the dissenting opinion. It even removed the name of the doctor filing the dissent from the list of committee members reviewing the drug. And then it was reported by Jeanne Lenzer in the British Medical Journal that the AHA had received over $11 million in contributions from the maker of the drug, Genentech.

That payment, of course, doesn’t show that the conclusion of the AHA study was flawed. It doesn’t show the results were bought. But as Lenzer observed: “[The] recommendation may have been made in a true spirit of unbiased scientific inquiry, but the appearance of dispassionate analysis was eroded by large donations from a drug company….”³⁰ The money destroyed the trust, whether or not it was responsible for the sanitized report.

2. In 2005, Congress passed the “Bankruptcy Abuse Prevention and Consumer Protection Act,” a law that radically changed the opportunity for lower-middle class debtors to invoke bankruptcy to relieve their debt. An almost identical bill was first introduced in Congress during the Clinton administration. President Clinton was said to support it. But after reading an op-ed in the New York Times about the real cost of this “reform,” Hillary Clinton launched a campaign in the White House to get the President to stop “that awful bill.” In one of his last acts as President, Clinton effectively vetoed it, leading Harvard Professor Elizabeth Warren to comment that the First Lady had “single handedly kept [the bill] from becoming law.”³¹

A year later the bill returned to Congress. By this time, First Lady Clinton was Senator Clinton. And by this time, the finance and credit card industries had given her campaign at least $140,000.³² When the bill came up for a vote, however, Hillary Clinton voted for it. Not just once, but twice. That “awful bill” had now apparently become a darling.

There are a thousand reasons why Clinton might have changed her mind. Here’s just one: she was now a Senator from New York; the industry protected by the bill is obviously an important industry for New York. But the question is not just why she did what she did, but also, how it would be understood. She insists that money doesn’t affect her votes. I, for one, completely believe her. But how would the vast majority of America see these same facts: “She changed her mind after a pile of money came into her campaign. ‘Why’ is obvious. No further conversation about the matter is needed.” The money becomes the reason. Its presence stops any further reasoning, or even listening. It destroys trust, whether or not in fact it affected the decision.

In both stories, the critical feature is perception. How does the money affect the perception? How does it affect the possibility of understanding, or persuasion? How does it define the transaction in the eyes of the public, even if that definition is not actually correct?

The answer—at least as it relates to Congress—is that the money plays into a belief people already have. It confirms that belief. Most believe money buys results in Congress. (In my (heavily Democratic) congressional district, “most” equals 88%.) Results that seem anomalous—Clinton changing her vote on the bankruptcy bill, 96 Democrats flip-flopping on telco immunity—are thus explained by a view that most already believe: money buys results. And whether or not that view is true in general, or true in a particular case, doesn’t matter in the least. Money is the simplest explanation. It serves the interests of the public just fine. As Representative Fingerhut put it, “I could satisfy myself that I was not engaged in an actual impropriety. But I could not satisfy myself that I was not engaged in an appearance of an impropriety.”³³

That appearance has consequences: a deep and pervasive mistrust of government. As Bill Bradley put it:

For nearly a decade — every major step government has taken has been jeopardized by this mistrust, by a deep and widespread conviction that politicians are acting in their own individual interest rather than acting as honest representatives of the democratic will.³⁴

That “widespread conviction” grows for obvious reasons. It is fueled by a psychological fact about how all of us engage with public institutions. What drives our attitudes about such institutions is not primarily whether we win or lose. Instead, attitudes, as NYU Professor Tom Tyler argues, are driven by perceptions of fairness.³⁵ But the perception of fairness is precisely what the existing system destroys. Most believe that auctioned access is unfair. Most believe that having convictions compromised by campaign funding opportunities is unfair. The predominance of private money in public elections thus fuels a vicious cycle of cynicism and resentment. The most hated branch can’t escape feeding its own hatred.

The point is not that money is evil. Or that rich people should be silenced or forbidden to speak. The point instead is about the mechanisms by which trust gets built. It is about the importance of independence within those mechanisms: If you tell me a professor was paid to write a policy paper, I’m less interested in his argument. If a lawyer at a major firm offers his expert advice about how copyright protections should be extended, I want to know who the clients of his firm are. If I learned that a doctor prescribing a new cancer drug to my mom was a patent holder on that drug, I’d ask for a second opinion. And if my Congresswoman tried to explain to me why she voted against something I think important, the fact that she had received money from an interest benefited by her vote would pretty much end my interest in her explanation.

In all these cases, the money doesn’t prove anything. But it inevitably kills the opportunity for understanding. It births a debilitating cynicism. It is the answer to the question “why,” even when it is not. It erodes trust in any institution that must persuade to secure power, as all institutions in a democracy ultimately must.

4.

What if you came to believe this system had to be fixed? That the danger of letting this loose cannon continue to roam freely was just too great? That a democracy in which the vast majority of citizens (indeed, a constitution-amending majority of citizens) had lost faith in the most basic institution of government could not long endure?

That’s the place I came to about a year ago. I had been a scholar/activist in the free culture wars, arguing in favor of a more balanced regulation of culture than the current regime of control envisions. But as I listened again and again to Al Gore recount the struggle to get government to address the problem of global warming, it became clear that there was something much more fundamental we had to fix first. It became clear, in other words, that while there were critical public policy issues of substance to address, we would not begin to address those issues sensibly until we addressed this question of process.

Gore’s latest book attacks this something as the “Assault on Reason.”³⁶ He argues for a return to “reason” as the basis for governmental decisions. He laments the rise of the technologies of media (mainly television) that erode the place for reason.

But long before we get to the world of “reason” governing politics, we could imagine a world where this one distorting influence—money—didn’t bend the process of policy making. The point is not that all money in the process should be neutralized—we will (and should) always have a world where there are lobbyists, and where some lobbyists get paid more than others. The point instead is to imagine a world in which at least the dependency that now exists between Members and private funding of public campaigns might be cut.

It was the idea that we needed at least this much reform that led political guru Joe Trippi and me to launch a new organization called Change Congress. Change Congress is a bipartisan reform movement intended to leverage the substantive reform work of others. Those “others” are the many reform groups working on issues ranging from earmark reform to public funding of public elections. The “leverage” will come from building a suite of online tools that use the power of the Net to engage citizens in driving for reform.

This movement begins small. It collects Members, candidates and citizens who pledge themselves to a platform of reform. (The first Member to take the pledge was Congressman Jim Cooper of Tennessee. A gaggle of challengers in the current cycle have taken the pledge to signal how they would be different from the incumbent.) Using wiki-like tools, volunteers will then tag every representative, to map where they stand on core issues of reform. And finally, an Emily’s list like tool will direct money to candidates who support reform, building upon the insight that Madison thought he had perfected—creating the incentive for Members to act to support the good.

No doubt it will take a number of cycles before any movement like this could build the critical mass of supporters necessary to effect substantial reform. The challenge is not that most don’t understand the underlying problem. Nothing is more familiar to the ordinary voter. The difficulty instead is that most don’t believe a solution is possible. The eyes of the average voter glaze over when “campaign finance reform” is mentioned. Not because the issue is unimportant, but because cynicism about any “solution” is so great. Why would anyone expect beneficiaries of a broken system would be keen to fix it? Why would anyone trust anyone from within the system who said this was her aim?

This cycle of distrust signals something important about any successful strategy for reform: that it must come from the outside, ideally from people who have no interest in being on the inside. Citizens fit that description; so too may “citizen candidates.” Imagine non-politicians challenging sitting Members of Congress, not with the expectation of winning, but with the aim of raising the cost of failing to pledge to fundamental reform by making this single issue the single issue of the campaign. The threat itself makes the pledge more credible. Fifty such threats over two or three election cycles could fundamentally reform the institution.

Such reform is the aim of Change Congress. We will pursue it by demanding of incumbents, or those who seek to be incumbents, a commitment to clear principles of change. We will enforce it by deploying an army of wiki-workers to monitor and hold accountable Members who deviate from that commitment. And we will achieve it by building an endless repertoire of examples of government misfiring because of this dependency on money. There are examples that will connect to every citizen. If we can connect these examples to a plausible path for change, then these citizens can do the rest. Because regardless of what other dependencies have accreted into the system we call Congress, dependency upon “the People” still remains.

5.

Years after his election as President, Thomas Jefferson referred to the “revolution of 1800” (the year he was elected) “as real a revolution in the principles of government as that of 1776 was in its form.” That comment is obscure to us, until we recognize, as Professor Drew McCoy argues, that “revolution” meant something different to our Framers than to us.37 We think of “revolutions” as fundamental change. But they saw revolutions (as the word more clearly suggests) as a return to founding, or true principles. Jefferson’s election got the country back to the Republican values of 1776—or so he thought. (John Adams had a different view.) It was a “revolution” because it restored ideals deemed fundamental.

It is in this sense precisely that we too need a revolution. And it is in this sense precisely that we too need a new “Declaration of Independence.” Not independence from some colonial power. And not independence from all power. But independence from the dependency that has now overwhelmed our Congress. Independence from the improper dependence on private campaign funding, so as to return to a more perfect dependence upon “the People.”

We all know such dependencies are impossibly difficult to correct. But we all need to see that however impossible, we have no other choice. Our Congress has lost our confidence. The consequence is an ever faster slide of power from the First Branch to the President, and the Courts. But both the President and the Courts are flawed democratic institutions. All Presidents, not just President Bush, aspire to become monarchs. All Courts lack democratic pedigree.

If this experiment in democracy launched two centuries ago is to survive, we must revolve back to at least this of its founding ideals: that the government must be architected to check the corrupting influence of improper dependence. This is the first problem reformers must fix. And however impossible it is for politicians and reformers to imagine a world where the people mobilize to demand this change, we must mobilize this world. There is no other choice. The slow slide away from a Republic in which Congress is dependent upon nothing except “the People,” is accelerating. Like the melting of the polar ice caps, at some point, it won’t be reversed.

Footnotes

1. Blackstone’s Commentaries on the Laws of England 22 (H. Broom & E.A. Hadley eds., 1875).

2. Jane Austen, Sense and Sensibility 17, 296 (J.M. Dent Co. 1908) (1811).

3. Albert Ellery Bergh, 1 The Writings of Thomas Jefferson (Notes on Virginia) 229 (1905).

4. James Madison, Journal of the Federal Convention Kept by James Madison 522 (E.H. Scott ed., Lawbook Exchange 2003) (1840).

5. The Federalist No. 51 (James Madison).

6. The Constitution's Forgotten Anti-Corruption Principle, 94 Cornell Law Review (forthcoming January 2009).

7. Dennis Thompson, Ethics in Congress 2 (1995).

8. Jack Beatty, The Age of Betrayal 215-16 (2007).

9. Thompson, supra, at 3.

10. Brennan Center, Breaking Free with Fair Elections 8 (2007).

11. Id.

12. R. L. Hall & A. Deardorff, Lobbying as legislative subsidy, 100 Am. Pol. Sci. Rev. 69 (2006).

13. Robert McMillan, “[http://www.nytimes.com/idg/IDG_002570DE00740E18882573F50010C487.html Bill Gates: Internet Censorship Won’t Work,” N.Y. Times, Feb. 20, 2008.

14. Martin Schram, Speaking Freely 62 (Center for Responsive Politics 1995).

15. Paul Simon, The Future of American Democracy, 1999-2000 Peltason Lecture on Democracy at the University of California Irvine Center for the Study of Democracy (Oct. 28, 1999).

16. Schram, supra, at 90.

17. Id., at 93.

18. Id., at 89.

19. Id., at 12.

20. Id., at 48-49.

21. Id., at 12.

22. Id., at 136.

23. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, Title I, 112 Stat. 2827 (1998).

24. Brief of George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen, Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W. Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll, Richard Sch malensee, Steven Shavell, Hal R. Varian, and Richard J. Zeckhauser as Amici Curiae in Support of Petitioners (May. 20, 2002).

25. T. Colin Campbell & Thomas Campbell, The China Study 306 (2006).

26.An Inconvenient Truth (Paramount 2006).

27. Richard von Busack, Bringing the Heat, Metro Santa Cruz, June 7-14 2006.

28. Al Gore, An Inconvenient Truth 266 (2006).

29. Oliver Burkeman, Memo Exposes Bush's New Green Strategy, The Guardian, March 4, 2003.

30. Jerome Kassirer, On The Take 110-111 (2004).

31. See Conversations with Elizabeth Warren (UCTv May 21, 2007).

32. Data available at OpenSecrets.org.

33. Schram, supra, at 11.

34. Bill Bradley, Government and Public Behavior, presented to the Penn National Commission on Character and Values (1997).

35. Tom Tyler, Why People Obey the Law (1992).

36. Al Gore, The Assault on Reason (2007).

37. Drew McCoy, The Elusive Republic 185 (1980).

Notes

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