Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [109]
Yet when we think about these conceptions of corruption against the background of the (federal) government today, it is harder to believe that either conception of corruption is really common or pervasive. I’ve said again and again that I believe Randy “Duke” Cunningham’s crimes are rare. And it’s hard to imagine the government as even competent enough to plan a system where private industry has to become essentially dependent upon it.
Venal and systematic corruption might flourish, however, without either being expressly intended. That’s the lesson of dependence corruption. It builds a platform upon which both venal and systematic corruption can emerge without having to believe that individuals acting on that platform had a motive remotely as evil as Randy “Duke” Cunningham’s or William Jefferson’s.
To see this, think again about the dynamic of this platform: the crucial agent in the middle, the lobbyists, feed a gift economy with members of Congress. No one need intend anything illegal for this economy to flourish. Each side subsidizes the work of the other (lobbyists by securing funds to members; members by securing significant benefits to the clients of the lobbyists). But that subsidy can happen without anyone intending anything in exchange—directly. “The system” permits these gifts, so long as they are not directly exchanged. People working within this system can thus believe—and do believe—that they’re doing nothing wrong by going along with how things work.
Sometimes this going-along produces benefits that seem venally corrupt. Because of a loophole in the tax system (one that has existed since the 1960s), managers of hedge funds don’t pay ordinary income tax on the money they earn from hedge funds. Instead, their “carried interest” gets taxed at 15 percent.32 Thus, though the top ten hedge fund managers in 2009 made, on average, $1.87 billion, they paid a lower tax rate on that income than their secretaries.33 Obama promised to change this. But that change was blocked. It’s very hard not to understand the very richest in our society enjoying the same tax rate as individuals earning between $8,000 and $34,000 as anything other than a kind of venal corruption. Yet again, no one needs to have intended any quid pro quo to produce this result.
Likewise, sometimes this going-along produces benefits that seem systematically corrupt. That was the example I described with Al Gore’s proposed Title VII of the Communications Act—a government regulating for the purpose (in part at least) of producing a dependency by citizens (or corporations) on the government, and thus producing a willingness to turn over wealth to the government (through campaign funds). So, too, with the complexity of tax policy, or the constant role the government plays in agricultural policy. All of these may well be instances of a government deploying its power to create client dependencies, which in turn it deploys to keep itself in power. But here again, all this could be produced without anyone crossing any criminal line.
The clearest recent example of this sort of systematic corruption is the case of the Republicans the last time they controlled Congress. In 1995, Tom DeLay (R-Tex.; 1985–2006), majority leader in the House of Representatives, launched the “K Street Project.” The “brainchild of Grover Norquist,” the K Street Project “embraced the idea that trade associations, lobby shops, law firms, and corporate offices in Washington should be run by Republicans.”34 DeLay is said to have personally told corporate “executives not to send Democrats to try to lobby him.”35 Gingrich and DeLay had curried favor with business, and as Kaiser comments about the role in 1996 and 1998, “they obviously expected favors in return in the form of contributions. The mutual dependence