an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Last week, Harvard’s Lawrence Lessig released a long-awaited book Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It.
Lessig is the Steve Jobs of law professors. Not only do both have devoted fans for their legendarypublic keynotes, both also present revolutionary, original ideas in simple packages accessible to all. While Steve Jobs used novel and simplifying insights to introduce the personal computer to the masses in 1984, Lessig has taken some of the most arcane and complex legal concepts and turned them into mainstream ideas. He did this with Internet law, privacy, and copyright in his first book in 1999, Code—a book that remains the bible of Internet lawyers. His third book, Free Culture, inspired a movement on college campuses for more balanced copyright policy. And, on a personal note, his second book, The Future of Ideas, helped shape the network neutrality debate and spectrum policy debates, and (on a personal note) was what first inspired me to pursue technology policy over a decade ago. Lessig himself has been involved in activism, starting an organization to change Congress, serving on the board of many activist groups (including one for whom I was the head lawyer).
In 2008, Lessig began work on an important new project affecting something that--like restrictions on Internet speech--affects our ability to solve all of our nation's other problems. That project focuses on corruption, specifically the political corruption that has produced perverse legislative results and has shaken many Americans' faith in our democracy. The timing of Lessig's book seems perfect: just a few weeks into the continuing #OccupyWallstreet protests and a short year after the first election in the shadow of Citizens United, this book set out both what's causing the anger and what to do about it. And he clearly, almost heavy-handedly, frames theses issues for audiences on both the right and the left.
Republic, Lost is divided in three major parts. In the first, Lessig gives examples of what he calls "silly" legislative outcomes (meaning those that result in wealth transfers, poverty, and sickness) that seem to have no other logic than the will of campaign contributors and big-corporate lobbyists. Consider one we all know: our economy collapses because of skewed incentives for the financial industry and Congress does next to nothing, as Wall Street sends an army of lobbyists and makes huge contributions. He asks, over and over, not whether money led to the silly outcome, but whether most Americans (the reader included) would believe that money did so. That is, do the vast sums of money sloshing around DC undermine our trust in our democracy?
The second major part sets out to prove that, yes, the money does influence outcomes. Lessig calls that corruption. He defines a corruption that is not "quid pro quo" but is instead a "dependence corruption." According to Lessig, the Founders framed our constitutional system so that Congress would be dependent on the people alone. Our current system makes Congress dependent on campaign contributors and lobbyists, who act as conduits for cash in a "gift economy." Lessig details how that dependency on cash interferes with the Congress's dependence on the people alone. And, though Lessig emphasizes that he cannot prove money's influence on legislative votes, there is some evidence of money's influence up and down the legislative process, from agenda-setting to oversight hearings. He then sets out arguments for why dependence corruption undermines the left's agenda as well as the right's--essentially, with our current campaign financing system, government will continue to get bigger and laws more complex, no matter who wins elections.
This picture, which I saw elsewhere but helps capture the heart of Lessig's argument to the right, explains where the left and right should agree. The left distrusts big corporations, the right distrusts big government, but big-corps and big-govs work hand-in-hand to increase one another's power.
The third major part sets out potential solutions, setting out (1) laws that Lessig believes will fail to cure our problems, (2) those that would address our problems but can't be enacted under the current system (because politicians who benefit from the current system will not reform it), and (3) those that would both address our problems and have a shot (if a long shot) of being enacted. Most famously, Lessig calls for a constitutional convention to strike at the root of our public corruption problem.
I have a few quibbles with the book. For example, I wish that there was more discussion of other countries and how they manage to address dependence corruption, whether successfully or not. Such comparative analysis could inform the scope of our problem and the potential of our solutions.
That said, the bottom line is this: Republic, Lost is awesome. It's worth reading. Read it. Talk about it. Recommend it to others. Order it immediately as though it was the iPhone5 you've been waiting so long for.