How to Get Our Democracy Back

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Lawrence Lessig is a professor of law at Harvard Law School, is co-founder of the nonprofit Change Congress.

We should remember what it felt like one year ago, as the ability to recall it emotionally will pass and it is an emotional memory as much as anything else. It was a moment rare in a democracy's history. The feeling was palpable--to supporters and opponents alike--that something important had happened. America had elected, the young candidate promised, a transformational president. And wrapped in a campaign that had produced the biggest influx of new voters and small-dollar contributions in a generation, the claim seemed credible, almost intoxicating, and just in time.

Yet a year into the presidency of Barack Obama, it is already clear that this administration is an opportunity missed. Not because it is too conservative. Not because it is too liberal. But because it is too conventional. Obama has given up the rhetoric of his early campaign--a campaign that promised to "challenge the broken system in Washington" and to "fundamentally change the way Washington works." Indeed, "fundamental change" is no longer even a hint.

Instead, we are now seeing the consequences of a decision made at the most vulnerable point of Obama's campaign--just when it seemed that he might really have beaten the party's presumed nominee. For at that moment, Obama handed the architecture of his new administration over to a team that thought what America needed most was another Bill Clinton. A team chosen by the brother of one of DC's most powerful lobbyists, and a White House headed by the quintessential DC politician. A team that could envision nothing more than the ordinary politics of Washington--the kind of politics Obama had called "small." A team whose imagination--politically--is tiny.

These tiny minds--brilliant though they may be in the conventional game of DC--have given up what distinguished Obama's extraordinary campaign. Not the promise of healthcare reform or global warming legislation--Hillary Clinton had embraced both of those ideas, and every other substantive proposal that Obama advanced. Instead, the passion that Obama inspired grew from the recognition that something fundamental had gone wrong in the way our government functions, and his commitment to reform it.

For Obama once spoke for the anger that has now boiled over in even the blue state Massachusetts--that our government is corrupt; that fundamental change is needed. As he told us, both parties had allowed "lobbyists and campaign contributions to rig the system." And "unless we're willing to challenge [that] broken system...nothing else is going to change." "The reason" Obama said he was "running for president [was] to challenge that system." For "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."

This administration has not "taken up that fight." Instead, it has stepped down from the high ground the president occupied on January 20, 2009, and played a political game no different from the one George W. Bush played, or Bill Clinton before him. Obama has accepted the power of the "defenders of the status quo" and simply negotiated with them. "Audacity" fits nothing on the list of last year's activity, save the suggestion that this is the administration the candidate had promised.

Maybe this was his plan all along. It was not what he said. And by ignoring what he promised, and by doing what he attacked ("too many times, after the election is over, and the confetti is swept away, all those promises fade from memory, and the lobbyists and the special interests move in"), Obama will leave the presidency, whether in 2013 or 2017, with Washington essentially intact and the movement he inspired betrayed.

That movement needs new leadership. On the right (the tea party) and the left (MoveOn and Bold Progressives), there is an unstoppable recognition that our government has failed. But both sides need to understand the source of its failure if either or, better, both together, are to respond.

At the center of our government lies a bankrupt institution: Congress. Not financially bankrupt, at least not yet, but politically bankrupt. Bush v. Gore notwithstanding, Americans' faith in the Supreme Court remains extraordinarily high--76 percent have a fair or great deal of "trust and confidence" in the Court. Their faith in the presidency is also high--61 percent.

But consistently and increasingly over the past decade, faith in Congress has collapsed--slowly, and then all at once. Today it is at a record low. Just 45 percent of Americans have "trust and confidence" in Congress; just 25 percent approve of how Congress is handling its job. A higher percentage of Americans likely supported the British Crown at the time of the Revolution than support our Congress today.

The source of America's cynicism is not hard to find. Americans despise the inauthentic. Gregory House, of the eponymous TV medical drama, is a hero not because he is nice (he isn't) but because he is true. Tiger Woods is a disappointment not because he is evil (he isn't) but because he proved false. We may want peace and prosperity, but most would settle for simple integrity. Yet the single attribute least attributed to Congress, at least in the minds of the vast majority of Americans, is just that: integrity. And this is because most believe our Congress is a simple pretense. That rather than being, as our framers promised, an institution "dependent on the People," the institution has developed a pathological dependence on campaign cash. The US Congress has become the Fundraising Congress. And it answers--as Republican and Democratic presidents alike have discovered--not to the People, and not even to the president, but increasingly to the relatively small mix of interests that fund the key races that determine which party will be in power.

This is corruption. Not the corruption of bribes, or of any other crime known to Title 18 of the US Code. Instead, it is a corruption of the faith Americans have in this core institution of our democracy. The vast majority of Americans believe money buys results in Congress (88 percent in a recent California poll). And whether that belief is true or not, the damage is the same. The democracy is feigned. A feigned democracy breeds cynicism. Cynicism leads to disengagement. Disengagement leaves the fox guarding the henhouse.

This corruption is not hidden. On the contrary, it is in plain sight, with its practices simply more and more brazen. Consider, for example, the story Robert Kaiser tells in his fantastic book So Damn Much Money, about Senator John Stennis, who served for forty-one years until his retirement in 1989. Stennis, no choirboy himself, was asked by a colleague to host a fundraiser for military contractors while he was chair of the Armed Services Committee. "Would that be proper?" Stennis asked. "I hold life and death over those companies. I don't think it would be proper for me to take money from them."

Is such a norm even imaginable in DC today? Compare Stennis with Max Baucus, who has gladly opened his campaign chest to $3.3 million in contributions from the healthcare and insurance industries since 2005, a time when he has controlled healthcare in the Senate. Or Senators Lieberman, Bayh and Nelson, who took millions from insurance and healthcare interests and then opposed the (in their states) popular public option for healthcare. Or any number of Blue Dog Democrats in the House who did the same, including, most prominently, Alabama's Mike Ross. Or Republican John Campbell, a California landlord who in 2008 received (as ethics reports indicate) between $600,000 and $6 million in rent from used car dealers, who successfully inserted an amendment into the Consumer Financial Protection Agency Act to exempt car dealers from financing rules to protect consumers. Or Democrats Melissa Bean and Walter Minnick, who took top-dollar contributions from the financial services sector and then opposed stronger oversight of financial regulations.

The list is endless; the practice open and notorious. Since the time of Rome, historians have taught that while corruption is a part of every society, the only truly dangerous corruption comes when the society has lost any sense of shame. Washington has lost its sense of shame.

As fundraising becomes the focus of Congress--as the parties force members to raise money for other members, as they reward the best fundraisers with lucrative committee assignments and leadership positions--the focus of Congressional "work" shifts. Like addicts constantly on the lookout for their next fix, members grow impatient with anything that doesn't promise the kick of a campaign contribution. The first job is meeting the fundraising target. Everything else seems cheap. Talk about policy becomes, as one Silicon Valley executive described it to me, "transactional." The perception, at least among industry staffers dealing with the Hill, is that one makes policy progress only if one can promise fundraising progress as well.

This dance has in turn changed the character of Washington. As Kaiser explains, Joe Rothstein, an aide to former Senator Mike Gravel, said there was never a "period of pristine American politics untainted by money.... Money has been part of American politics forever, on occasion--in the Gilded Age or the Harding administration, for example--much more blatantly than recently." But "in recent decades 'the scale of it has just gotten way out of hand.' The money may have come in brown paper bags in earlier eras, but the politicians needed, and took, much less of it than they take through more formal channels today."

And not surprisingly, as powerful interests from across the nation increasingly invest in purchasing public policy rather than inventing a better mousetrap, wealth, and a certain class of people, shift to Washington. According to the 2000 Census, fourteen of the hundred richest counties were in the Washington area. In 2007, nine of the richest twenty were in the area. Again, Kaiser: "In earlier generations enterprising young men came to Washington looking for power and political adventure, often with ambitions to save or reform the country or the world. In the last fourth of the twentieth century such aspirations were supplanted by another familiar American yearning: to get rich."

Rich, indeed, they are, with the godfather of the lobbyist class, Gerald Cassidy, amassing more than $100 million from his lobbying business.

Members of Congress are insulted by charges like these. They insist that money has no such effect. Perhaps, they concede, it buys access. (As former Representative Romano Mazzoli 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.") But, the cash-seekers insist, it doesn't change anyone's mind. The souls of members are not corrupted by private funding. It is simply the way Americans go about raising the money necessary to elect our government.

But there are two independent and adequate responses to this weak rationalization for the corruption of the Fundraising Congress. First: whether or not this money has corrupted anyone's soul--that is, whether it has changed any vote or led any politician to bend one way or the other--there is no doubt that it leads the vast majority of Americans to believe that money buys results in Congress. Even if it doesn't, that's what Americans believe. Even if, that is, the money doesn't corrupt the soul of a single member of Congress, it corrupts the institution--by weakening faith in it, and hence weakening the willingness of citizens to participate in their government. Why waste your time engaging politically when it is ultimately money that buys results, at least if you're not one of those few souls with vast sums of it?

"But maybe," the apologist insists, "the problem is in what Americans believe. Maybe we should work hard to convince Americans that they're wrong. It's understandable that they believe money is corrupting Washington. But it isn't. The money is benign. It supports the positions members have already taken. It is simply how those positions find voice and support. It is just the American way."

Here a second and completely damning response walks onto the field: if money really doesn't affect results in Washington, then what could possibly explain the fundamental policy failures--relative to every comparable democracy across the world, whether liberal or conservative--of our government over the past decades? The choice (made by Democrats and Republicans alike) to leave unchecked a huge and crucially vulnerable segment of our economy, which threw the economy over a cliff when it tanked (as independent analysts again and again predicted it would). Or the choice to leave unchecked the spread of greenhouse gases. Or to leave unregulated the exploding use of antibiotics in our food supply--producing deadly strains of E. coli. Or the inability of the twenty years of "small government" Republican presidents in the past twenty-nine to reduce the size of government at all. Or... you fill in the blank. From the perspective of what the People want, or even the perspective of what the political parties say they want, the Fundraising Congress is misfiring in every dimension. That is either because Congress is filled with idiots or because Congress has a dependency on something other than principle or public policy sense. In my view, Congress is not filled with idiots.

The point is simple, if extraordinarily difficult for those of us proud of our traditions to accept: this democracy no longer works. Its central player has been captured. Corrupted. Controlled by an economy of influence disconnected from the democracy. Congress has developed a dependency foreign to the framers' design. Corporate campaign spending, now liberated by the Supreme Court, will only make that dependency worse. "A dependence" not, as the Federalist Papers celebrated it, "on the People" but a dependency upon interests that have conspired to produce a world in which policy gets sold.

No one, Republican or Democratic, who doesn't currently depend upon this system should accept it. No president, Republican or Democratic, who doesn't change this system could possibly hope for any substantive reform. For small-government Republicans, the existing system will always block progress. There will be no end to extensive and complicated taxation and regulation until this system changes (for the struggle over endless and complicated taxation and regulation is just a revenue opportunity for the Fundraising Congress). For reform-focused Democrats, the existing system will always block progress. There will be no change in fundamental aspects of the existing economy, however inefficient, from healthcare to energy to food production, until this political economy is changed (for the reward from the status quo to stop reform is always irresistible to the Fundraising Congress). In a single line: there will be no change until we change Congress.

That Congress is the core of the problem with American democracy today is a point increasingly agreed upon by a wide range of the commentators. But almost universally, these commentators obscure the source of the problem.

Some see our troubles as tied to the arcane rules of the institution, particularly the Senate. Ezra Klein of the Washington Post, for example, has tied the failings of Congress to the filibuster and argues that the first step of fundamental reform has got to be to fix that. Tom Geoghegan made a related argument in these pages in August, and the argument appears again in this issue. (Of course, these pages were less eager to abolish the filibuster when the idea was floated by the Republicans in 2005, but put that aside.)

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