Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [112]
The King’s ministers were not attacked for sitting in Parliament, but they were attacked for allegedly filling Parliament with the recipients of government patronage. For what was universally acknowledged was that if the members of the legislature became dependent upon patronage, the legislature would cease to be independent and the balance of the constitution would become corrupt. Corruption on an eighteenth-century tongue—where it was an exceedingly common term—meant not only venality, but disturbance of the political conditions necessary to human virtue and freedom.49
Such “disturbance” occurred when one power had the ability to weaken the independence of another.
The puzzle for the Framers, then, was not how to police the perpetual problem within any government—bribery, or quid pro quo deals. The challenge was to craft a government in which each department was sufficiently independent to protect itself against systematic corruption by another, and to protect the people against systematic corruption by the government.50 From that perspective, the important question is whether we could call deviation from that dependency “corruption”—at least in the language of the Supreme Court.
In my view, the answer to this question is obviously yes. Dependence corruption is plainly corruption. It also plainly infects the political system for the same reasons that quid pro quo corruption does. In both cases, the consequence of the corruption is to draw the legislature away from the reasons it should be considering. With quid pro quo corruption, the effect is to draw attention to personal and venal reasons. With dependence corruption, the effect is to draw attention to a competing dependency.
Justice Kennedy’s apparent argument for limiting the concept of corruption to quid pro quo is perhaps best captured in two closely related passages from Citizens United. First, to the suggestion that there may be a corruption beyond quid pro quo corruption, tied to the special influence that money has within our political system, Justice Kennedy quotes an earlier opinion of his: “Favoritism and influence are not… avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies.”51
Notice the words and contributors. Without those two words, Kennedy’s statement is certainly true. The claim could be made even more strongly: favoring the policies that one’s constituents favor is the essence of representative democracy (or at least one dominant conception of it). It was for the purpose of establishing precisely this sort of dependency of representatives on constituents that the Framers created frequent elections in the House.
But by adding the words and contributors, Kennedy makes the statement not only not obvious, but also, in my view, plainly wrong. The Framers did not intend to make representatives dependent upon contributors. Representatives were to be dependent upon voters, or, more generally, “on the People alone.” And while it is conceivable—assuming many contingencies—that a dependence upon “contributors” could in effect be the same as a dependence upon voters, as I’ve just demonstrated, there is no doubt that under our current system of campaign finance, there is no such overlap between the interests of “the People” and “the funders.”
This gap between a dependence upon the people and a dependence upon contributors has two effects. One is the distortion in policy described in chapter 10. To chase funders, you have to do