Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [50]
As the practice grew, the range and scale of the asks only increased, and the capacity of congressmen to decide on earmark requests based on the merits of the request declined substantially. My former congresswoman, Jackie Speier (D-Calif.; 2009–), asked me to chair a citizens’ commission to review earmark requests. Almost a dozen civic leaders from the district and I spent hundreds of hours poring over almost sixty specific requests. The topics of these requests ranged from streetlights to sophisticated defense technologies. The size ranged from the tens of thousands to the many, many millions.
What struck all of us on this commission was just how impossibly difficult it would be for anyone to weigh one request against another in a rational way. Moreover, we all were unanimous in our view that there was something inappropriate about for-profit companies asking for government help to better market or produce their products. Yet there were many requests of exactly that form, and thus many, many opportunities in districts unlike ours for the beneficiaries of those potential grants to make their gratitude known.
But isn’t all this illegal? you ask. Even if the exchange merely increases the probability of a payment in return, isn’t that enough to show quid pro quo corruption?
The answer is no, and for a very good reason: quid pro quo corruption requires intent. The guilty government official must intend to pay for the contribution made. That’s the meaning of pro: this pro (for) that. But in the mechanism I’m describing, the repayment is attenuated, and there is no necessity that it even be intended. Indeed, as cognitive psychologists have now plausibly suggested using brain scan technology, it is quite plausible that “intent” to repay a gift happens completely subconsciously.77 The member need not even recognize that she is acting to reciprocate for her action to be repayment for a previously recognized gift.
Indeed, the only way to clearly separate the gift to the member from the member’s actions in return would be if such gifts were anonymous.78 But of course, every contribution that matters today is as public as a pop star’s latest affair. Without doubt, key staffers in every member’s office know who supports their congressman and who doesn’t. More likely than not, the key staffers have made sure of it.
The gifts within this economy go both ways. Sometimes it is the lobbyist who secures the gift. Sometimes it is the member who makes the gift, expecting the recipient will, as the moniker suggests, reciprocate.
How would this work?
A large proportion of earmarks have gone to nonprofit institutions. Nonprofit institutions have boards, and board members have an obligation to work for the interest of that institution. Sometimes that work includes fund-raising, especially fund-raising to support new buildings or new research ventures. Members of the board thus have an obligation to the institution to raise the funds to meet those objectives.
So imagine you’re a board member of a small college in Virginia. Your board has decided to build a new science center. And just as you launch on this difficult task, your congresswoman secures an earmark to fund one building. You, as a board member, have now received a gift—from this congresswoman. A gift, not a bribe. You have no obligation toward that congresswoman. To the contrary, you have something better: you have gratitude toward her, for she has helped you and your institution.
That gratitude, in turn, can be quite lucrative—for the congresswoman. When you next receive a fund-raising solicitation from that congresswoman, it will be harder for you to say no and still feel good about yourself. She did a favor for you. You now should do a favor for her in return. The simplest way to return the favor