Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [114]
The citizens of this republic are perfectly entitled to have lost faith in this democracy. Justice Kennedy’s lecture in logic to justify this faith-destroying economy of influence fails as a matter of logic, and a measure of reality.
If Congress has the power to restrict speech to limit quid pro quo corruption, and the reasonable appearance of quid pro quo corruption, it ought, in principle at least, to have the power to restrict speech to limit dependence corruption as well.
If quid pro quo corruption is regulable because we presume such bribes distract legislators from their proper focus, on legislation that serves the public interest, then dependence corruption raises the same concern, this time at the level of the legislature.
If Congress can regulate to keep individual legislators from making decisions that are dependent upon venal rather than public interests, it ought to be free to regulate to keep the legislature as a whole from making decisions based on improper dependencies.
If it can act to ensure that individual legislators don’t act, or seem to act, on an obviously improper dependency, it ought to be free to act to ensure that the legislature itself not act, or seem to act, on a different, but equally improper, dependency. Here is the place where logic ought to matter. And here, the logic justifying the one speech restriction justifies the other.
Again, in principle. My claim is not that a law restricting speech to protect against dependence corruption is necessarily valid, or even a good idea. As with any speech regulation, the first question is whether there are other, less restrictive means of achieving the same legislative end. So if Congress could avoid dependence corruption by, say, funding elections publicly, that alternative would weaken any ability to justify speech restrictions to the same end. The objective should always be to achieve the legitimate objectives of the nation without restricting speech. My point is simply that the legitimate objectives should plainly include what the Framers thought they had achieved: congressional independence by eliminating dependence corruption.
We know enough to state with confidence what most Americans have felt in their guts for a very long time: the people can fairly believe that the core institution of this democracy, Congress, is corrupt. Not in the old-fashioned way. There aren’t safes on Capitol Hill filled with bags of cash. It is instead corrupt in a new and more virulent way. Zephyr Teachout jokes, “More bribery, less corruption.” There’s a deep insight in that clever quip.
We are fair to believe that this corruption blocks Congress from reforms on the Left and on the Right. It instead cements Congress to a debilitating status quo. What wins in the market is too often not what “a free market” would choose, but what a market bent by tariffs and subsidies and endless incumbency protective regulation defaults to. Call that “crony capitalism.” Our tax system is an abysmal inefficient mess not because of idiots at the IRS or on the Joint Committee on Taxation, but because crony capitalists pay top dollar to distort the system to their benefit. We don’t have real financial reform, because millions have been spent to protect bloated banks. We don’t have real health care reform, because the insurance companies and pharmaceutical companies had the power to veto any real change to the insanely inefficient status quo.
Adam Smith never defended crony capitalism. Neither did Friedrich Hayek, or Milton Friedman, or William F. Buckley, or Barry Goldwater, or Ronald Reagan. Franklin Delano Roosevelt