Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [53]
Where lobbying does buy votes directly, it’s a crime, and I’ve already said I don’t think (many) such crimes occur.
Instead, campaign cash has a distinctive role, depending upon which of three buckets it finds itself within:
In the first bucket are contributions that are effectively anonymous. These are gifts, typically small gifts, that a campaign receives but doesn’t meaningfully track. That doesn’t mean they don’t keep tabs on the contributor—of course they do, for the purpose of asking the contributor for more. I mean instead that they don’t keep tabs on the particular issue or interest that the contributor cares about. This is just money that the campaign attracts, but that it attracts democratically. It is the support inspired by the substance of the campaign.
The second bucket is the non-anonymous contributions. These are the large gifts from people or interests whose interests are fairly transparent. PAC contributions fit in here, as do contributions by very large and repeated givers. For these contributions, the candidate knows what he needs to do, or say, or believe. If campaign contributions are an investment, as many believe, then these investments are made with a clear signal about the return that is expected.
Finally, the third bucket is most important for the dynamic I am describing in this chapter: that part for which a lobbyist can claim responsibility. Again, some of this is direct: the money the lobbyist gives. But the more important cash is indirect: the part bundled, or effectively coordinated or inspired by the lobbyist, which, through channels, the beneficiaries learn of. Everyone who needs to be thanked is thanked, which means everyone who needs to know eventually does.
As we move from bucket one to three, risks to the system increase.
Bucket one is the most benign and pro-democratic of the three. This is the part that the candidate’s campaign inspires directly. It’s the direct echo of the policies he or she advances. If there is pandering here to raise more cash, it is public pandering. It’s the kind the opponent can take advantage of. It is the part that feeds political debate. And as Robert Brooks put it more than a century ago, “It is highly improbable that the question of campaign funds would ever have been raised in American politics if party contributions were habitually made by a large number of persons each giving a relatively small amount.”97
Bucket two is where the risks begin. For here begins the incentive to shape-shift, and not necessarily in a public way. The understandings that might inspire contributions to this bucket can be subtle or effectively invisible. As Daniel Lowenstein writes, “From the beginning of an issue’s life, legislators know of past contributions and the possibility of future ones…. All of these combine in a manner no one fully understands to form an initial predisposition in the legislator.”98
Again, it’s not easy to achieve such understandings effectively and legally. To the extent they’re expressed, they’re crimes. To the extent they’re implied, they can be misunderstood. The rules regulating quid pro quo corruption don’t block this sort of distortion. But they certainly make it much harder to effect.
Bucket three is where the real risk to the system thrives, at least so long as lobbyists are at the center of campaign funding. For here the relationships are complicated and long-standing, and their thickness makes it relatively simple to embed understandings and expectations.
We don’t have any good data about how big each bucket is. The data we do have is (predictably) misleading because of (predictable) loopholes in the rules. My colleague Joey Mornin used the public records to try to calculate the size of bundled contributions.99 He found large numbers overall. But even that careful analysis understates the influence, because the rules don’t require a lobbyist to report a bundle if the event at which it occurs was jointly sponsored,