How to Get Our Democracy Back
These arguments, however, miss a basic point. Filibuster rules simply set the price that interests must pay to dislodge reform. If the rules were different, the price would no doubt be higher. But a higher price wouldn't change the economy of influence. Indeed, as political scientists have long puzzled, special interests underinvest in Washington relative to the potential return. These interests could just as well afford to assure that fifty-one senators block reform as forty.
Others see the problem as tied to lobbyists--as if removing lobbyists from the mix of legislating (as if that constitutionally could be done) would be reform enough to assure that legislation was not corrupted.
But the problem in Washington is not lobbying. The problem is the role that lobbyists have come to play. As John Edwards used to say (when we used to quote what Edwards said), there's all the difference in the world between a lawyer making an argument to a jury and a lawyer handing out $100 bills to the jurors. That line is lost on the profession today. The profession would earn enormous credibility if it worked to restore it.
Finally, some believe the problem of Congress is tied to excessive partisanship. Members from an earlier era routinely point to the loss of a certain civility and common purpose. The game as played by both parties seems more about the parties than about the common good.
But it is this part of the current crisis that the dark soul in me admires most. There is a brilliance to how the current fraud is sustained. Everyone inside this game recognizes that if the public saw too clearly that the driving force in Washington is campaign cash, the public might actually do something to change that. So every issue gets reframed as if it were really a question touching some deep (or not so deep) ideological question. Drug companies fund members, for example, to stop reforms that might actually test whether "me too" drugs are worth the money they cost. But the reforms get stopped by being framed as debates about "death panels" or "denying doctor choice" rather than the simple argument of cost-effectiveness that motivates the original reform. A very effective campaign succeeds in obscuring the source of conflict over major issues of reform with the pretense that it is ideology rather than campaign cash that divides us.
Each of these causes is a symptom of a more fundamental disease. That disease is improper dependency. Remove the dependency, and these symptoms become--if not perfectly then at least much more--benign.
As someone who has known Obama vaguely for almost twenty years--he was my colleague at the University of Chicago, and I supported and contributed to every one of his campaigns--I would have bet my career that he understood this. That's what he told us again and again in his campaign, not as colorfully as Edwards, but ultimately more convincingly. That's what distinguished him from Hillary Clinton. That's what Clinton, defender of the lobbyists, didn't get. It was "fundamentally chang[ing] the way Washington works" that was the essential change that would make change believable.
So if you had told me in 2008 that Obama expected to come to power and radically remake the American economy--as his plans to enact healthcare and a response to global warming alone obviously would--without first radically changing this corrupted machinery of government, I would not have believed it. Who could believe such a change possible, given the economy of influence that defines Washington now?
Yet a year into this administration, it is impossible to believe this kind of change is anywhere on the administration's radar, at least anymore. The need to reform Congress has left Obama's rhetoric. The race to dicker with Congress in the same way Congress always deals is now the plan. Symbolic limits on lobbyists within the administration and calls for new disclosure limits for Congress are the sole tickets of "reform." (Even its revolving-door policy left a Mack truck-wide gap at its core: members of the administration can't leave the government and lobby for the industries they regulated during the term of the administration. But the day after Obama leaves office? All bets are off.) Save a vague promise in his State of the Union about overturning the Court's decision in Citizens United v. Federal Election Commission (as if that were reform enough), there is nothing in the current framework of the White House's plans that is anything more than the strategy of a kinder and gentler, albeit certainly more articulate, George W. Bush: buying reform at whatever price the Fundraising Congress demands. No doubt Obama will try to buy more reform than Bush did. But the terms will continue to be set by a Congress driven by a dependency that betrays democracy, and at a price that is not clear we can even afford.
Healthcare reform is a perfect example. The bill the Fundraising Congress has produced is miles from the reform that Obama promised ("Any plan I sign must include an insurance exchange...including a public option," July 19, 2009). Like the stimulus package, like the bank bailouts, it is larded with gifts to the most powerful fundraising interests--including a promise to drug companies to pay retail prices for wholesale purchases and a promise to the insurance companies to leave their effectively collusive (since exempt from anti-trust limitations) and extraordinarily inefficient system of insurance intact--and provides (relative to the promises) little to the supposed intended beneficiaries of the law: the uninsured. In this, it is the perfect complement to the only significant social legislation enacted by Bush, the prescription drug benefit: a small benefit to those who can't afford drugs, a big gift to those who make drugs and an astonishingly expensive price tag for the nation.
So how did Obama get to this sorry bill? The first step, we are told, was to sit down with representatives from the insurance and pharmaceutical industries to work out a deal. But why, the student of Obama's campaign might ask, were they the entities with whom to strike a deal? How many of the 69,498,516 votes received by Obama did they actually cast? "We have to change our politics," Obama said. Where is the change in this?
"People...watch," Obama told us in the campaign, "as every year, candidates offer up detailed healthcare plans with great fanfare and promise, only to see them crushed under the weight of Washington politics and drug and insurance industry lobbying once the campaign is over."
"This cannot," he said, "be one of those years."
It has been one of those years. And it will continue to be so long as presidents continue to give a free pass to the underlying corruption of our democracy: Congress.
There was a way Obama might have had this differently. It would have been risky, some might say audacious. And it would have required an imagination far beyond the conventional politics that now controls his administration.
No doubt, 2009 was going to be an extraordinarily difficult year. Our nation was a cancer patient hit by a bus on her way to begin chemotherapy. The first stages of reform thus had to be trauma care, at least to stabilize the patient until more fundamental treatment could begin.
But even then, there was an obvious way that Obama could have reserved the recognition of the need for this more fundamental reform by setting up the expectations of the nation forcefully and clearly. Building on the rhetoric at the core of his campaign, on January 20, 2009, Obama could have said:
America has spoken. It has demanded a fundamental change in how Washington works, and in the government America delivers. I commit to America to work with Congress to produce that change. But if we fail, if Congress blocks the change that America has demanded--or more precisely, if Congress allows the special interests that control it to block the change that America has demanded--then it will be time to remake Congress. Not by throwing out the Democrats, or by throwing out the Republicans. But by throwing out both, to the extent that both continue to want to work in the old way. If this Congress fails to deliver change, then we will change Congress.
Had he framed his administration in these terms, then when what has happened happened, Obama would be holding the means to bring about the obvious and critical transformation that our government requires: an end to the Fundraising Congress. The failure to deliver on the promises of the campaign would not be the failure of Obama to woo Republicans (the unwooable Victorians of our age). The failure would have been what America was already primed to believe: a failure of this corrupted institution to do its job. Once that failure was marked with a frame that Obama set, he would have been in the position to begin the extraordinarily difficult campaign to effect the real change that Congress needs.
I am not saying this would have been easy. It wouldn't have. It would have been the most important constitutional struggle since the New Deal or the Civil War. It would have involved a fundamental remaking of the way Congress works. No one should minimize how hard that would have been. But if there was a president who could have done this, it was, in my view, Obama. No politician in almost a century has had the demonstrated capacity to inspire the imagination of a nation. He had us, all of us, and could have kept us had he kept the focus high.
Nor can one exaggerate the need for precisely this reform. We can't just putter along anymore. Our government is, as Paul Krugman put it, "ominously dysfunctional" just at a time when the world desperately needs at least competence. Global warming, pandemic disease, a crashing world economy: these are not problems we can leave to a litter of distracted souls. We are at one of those rare but critical moments when a nation must remake itself, to restore its government to its high ideals and to the potential of its people. Think of the brilliance of almost any bit of the private sector--from Hollywood, to Silicon Valley, to MIT, to the arts in New York or Nashville--and imagine a government that reflected just a fraction of that excellence. We cannot afford any less anymore.
What would the reform the Congress needs be? At its core, a change that restores institutional integrity. A change that rekindles a reason for America to believe in the central institution of its democracy by removing the dependency that now defines the Fundraising Congress. Two changes would make that removal complete. Achieving just one would have made Obama the most important president in a hundred years.
That one--and first--would be to enact an idea proposed by a Republican (Teddy Roosevelt) a century ago: citizen-funded elections. America won't believe in Congress, and Congress won't deliver on reform, whether from the right or the left, until Congress is no longer dependent upon conservative-with-a-small-c interests--meaning those in the hire of the status quo, keen to protect the status quo against change. So long as the norms support a system in which members sell out for the purpose of raising funds to get re-elected, citizens will continue to believe that money buys results in Congress. So long as citizens believe that, it will.
Citizen-funded elections could come in a number of forms. The most likely is the current bill sponsored in the House by Democrat John Larson and Republican Walter Jones, in the Senate by Democrats Dick Durbin and Arlen Specter. That bill is a hybrid between traditional public funding and small-dollar donations. Under this Fair Elections Now Act (which, by the way, is just about the dumbest moniker for the statute possible, at least if the sponsors hope to avoid Supreme Court invalidation), candidates could opt in to a system that would give them, after clearing certain hurdles, substantial resources to run a campaign. Candidates would also be free to raise as much money as they want in contributions maxed at $100 per citizen.
The only certain effect of this first change would be to make it difficult to believe that money buys any results in Congress. A second change would make that belief impossible: banning any member of Congress from working in any lobbying or consulting capacity in Washington for seven years after his or her term. Part of the economy of influence that corrupts our government today is that Capitol Hill has become, as Representative Jim Cooper put it, a "farm league for K Street." But K Street will lose interest after seven years, and fewer in Congress would think of their career the way my law students think about life after law school--six to eight years making around $180,000, and then doubling or tripling that as a partner, where "partnership" for members of Congress means a comfortable position on K Street.
Before the Supreme Court's decision in Citizens United v. FEC, I thought these changes alone would be enough at least to get reform started. But the clear signal of the Roberts Court is that any reform designed to muck about with whatever wealth wants is constitutionally suspect. And while it would take an enormous leap to rewrite constitutional law to make the Fair Elections Now Act unconstitutional, Citizens United demonstrates that the Court is in a jumping mood. And more ominously, the market for influence that that decision will produce may well overwhelm any positive effect that Fair Elections produces.
This fact has led some, including now me, to believe that reform needs people who can walk and chew gum at the same time. Without doubt, we need to push the Fair Elections Now Act. But we also need to begin the process to change the Constitution to assure that reform can survive the Roberts Court. That constitutional change should focus on the core underlying problem: institutional independence. The economy of influence that grips Washington has destroyed Congress's independence. Congress needs the power to restore it, by both funding elections to secure independence and protecting the context within which elections occur so that the public sees that integrity.
No amendment would come from this Congress, of course. But the framers left open a path to amendment that doesn't require the approval of Congress--a convention, which must be convened if two-thirds of the states apply for it. Interestingly (politically) those applications need not agree on the purpose of the convention. Some might see the overturning of Citizens United. Others might want a balanced budget amendment. The only requirement is that two-thirds apply, and then begins the drama of an unscripted national convention to debate questions of fundamental law.
Many fear a convention, worrying that our democracy can't process constitutional innovation well. I don't share that fear, but in any case, any proposed amendment still needs thirty-eight states to ratify it. There are easily twelve solid blue states in America and twelve solid red states. No one should fear that change would be too easy.
No doubt constitutional amendments are politically impossible--just as wresting a republic from the grip of a monarchy, or abolishing slavery or segregation, or electing Ronald Reagan or Barack Obama was "politically impossible." But conventional minds are always wrong about pivot moments in a nation's history. Obama promised this was such a moment. The past year may prove that he let it slip from his hand.
For this, democracy pivots. It will either spin to restore integrity or it will spin further out of control. Whether it will is no longer a choice. Our only choice is how.
Imagine an alcoholic. He may be losing his family, his job and his liver. These are all serious problems. Indeed, they are among the worst problems anyone could face. But what we all understand about the dependency of alcoholism is that however awful these problems, the alcoholic cannot begin to solve them until he solves his first problem--alcoholism.
So too is it with our democracy. Whether on the left or the right, there is an endless list of critical problems that each side believes important. The Reagan right wants less government and a simpler tax system. The progressive left wants better healthcare and a stop to global warming. Each side views these issues as critical, either to the nation (the right) or to the globe (the left). But what both sides must come to see is that the reform of neither is possible until we solve our first problem first--the dependency of the Fundraising Congress.
This dependency will perpetually block reform of any kind, since reform is always a change in the status quo, and it is defense of the status quo that the current corruption has perfected. For again, as Obama said:
If we're not willing to take up that fight, then real change--change that will make a lasting difference in the lives of ordinary Americans--will keep getting blocked by the defenders of the status quo.
"Defenders of the status quo"--now including the souls that hijacked the movement Obama helped inspire.
By Lawrence Lessig:
Reprinted with permission from The Nation
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