Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [54]
But critically, size is not necessarily the most important issue. Influence happens on the margin, and the most powerful are the contributors who stand there. Even if bucket three were small compared to buckets one and two, if it provided a reliable and substantial source of funds, then its potential to distort policy would be huge.
This point is important, and often missed. As economists put it, price is set on the margin. The economic actor with the most power is the last one to trade. (“What do I need to do to get the next $10,000?”) Thus, even if small, bucket three is where the action is. The argument is parallel to one about technological innovation made by Judge Richard Posner:
[T]he level of output in a competitive market is determined by the intersection of price and marginal cost. This implies that the marginal purchaser—the purchaser willing to pay a price no higher than marginal cost—drives the market to a considerable extent. It follows that a technological innovation that is attractive to the marginal consumer may be introduced even though it lowers consumer welfare overall; this is a kind of negative externality.101
In the context of contributions to a campaign, the same dynamic is true. The bending necessary to secure sufficient funds from bucket three may well make those giving to bucket one less happy. That’s just the nature of these markets on the margin.
Campaign contributions in this model are thus not the only or even the most significant expenditure that special interests make. Indeed, lobbying expenditures (2009/2010) were four times as large as campaign expenditures in 2010. But though “themselves… never enough to create or maintain a viable government relations operation,” as Clawson and his colleagues describe, contributions are a “useful, perhaps even a necessary, part of the total strategy.”102
And finally, there is one more “useful, perhaps even necessary, part of the total strategy” that we cannot ignore: the power that one’s future has over one’s behavior today. This part was made obvious to me by an extraordinary congressman from Tennessee, Democrat Jim Cooper.
First elected to Congress in 1982 (at the age of twenty-eight), Cooper has a longer perspective on the institution than all but twenty-nine of its members.103 Early into my work, Cooper captured one part of it for me with a single brilliant distillation. As he told me one afternoon, while we were sitting in his office overlooking the Capitol, with a portrait of Andrew Jackson overlooking us: “Capitol Hill is a farm league for K Street.”
Cooper worries that too many now view Capitol Hill as a stepping stone to life as a lobbyist—aka K Street. Too many have a business model much like my students at Harvard Law School: They expect to work for six to eight years making a salary just north of $160,000 a year. Then they want to graduate to a job making three to ten times that amount as lobbyists. Their focus is therefore not so much on the people who sent them to Washington. Their focus is instead on those who will make them rich in Washington.
This, too, is an important change. In the 1970s, 3 percent of retiring members became lobbyists. Thirty years later, that number has increased by an order of magnitude. Between 1998 and 2004, more than 50 percent of senators and 42 percent of House members made that career transition.104 As of June 2010, 172 former members of Congress were registered lobbyists.105 In 2009 the financial sector alone had 70 former members of Congress lobbying on its behalf.106 Indeed, as Jeffrey Birnbaum reports, there are members who are explicit about the plan to become lobbyists.107 Ken Silverstein reports on one particularly pathetic example:
While still a senator, [Bob] Packwood had confided to his fatal diaries that he regarded the Senate, where he dwelled for twenty-seven years, as but a stepping-stone to a more lucrative