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Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [66]

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is not to change legislators’ minds but to assist natural allies in achieving their own, coincident objectives.”75

But what is this “nature”? How is it begot? How nourished? When a Republican member of Congress votes to raise the sugar tariff (as 35 Republican senators and 102 Republican members in the House did with the 2008 Farm Bill),76 is that because that member ran on the platform that eight domestic sugar manufacturers should be protected from the free market? Or when frontline Democrats—meaning first-term members in closely fought districts, no more liberal or conservative than more-senior Democrats—on the House Committee on Financial Services voted to exempt car dealers from consumer protection legislation, while senior Democrats on the same committee did not, is that because those younger Democrats ran on a platform that thought consumers needed to be protected everywhere, except from used car dealers?77

What’s missing here is an understanding of how “nature” gets made. For the relevant effect could be as much in anticipation as in response. And if it were in anticipation, then the methods that Ansolabehere and his colleagues deploy would not pick up the change. The money would not be buying a change in preferences; the change in preferences would be buying the money.

The best illustration of this dynamic is a comment by former representative Leslie Byrne (D-Va.; 1993–1995), recounting what she was told by a colleague when she first came to Washington: “I remember the comment of a well-known, big money-raising state delegate from Virginia. He said, ‘Lean to the green,’ and he wasn’t an environmentalist.”78

This is shape-shifting. It may well be unlikely that a lobbyist would waste his time trying to get a member to flip. There’s too much pride and self-respect in the system for that. There’s too much of an opportunity to be punished.

But if a lobbyist is important, or influential over sources of campaign contributions, then the effect of her influence could well be ex ante: a member could take a position on a particular issue in anticipation of the need to secure that lobbyist’s support. That decision isn’t a flip, for it isn’t a change. It is simply articulating more completely the views of a member, as that member grows into her job.

Now obviously this dynamic won’t work for everything. Certain issues are too prominent, or too familiar. But for a vast range of issues that Congress deals with, shape-shifting is perfectly feasible. And that’s because, for these issues, there’s no visible change. As Representative Vin Weber (R-Minn.; 1981–1993) puts it, a representative keeps “a mental checklist of things [members] need to do to make sure their PAC contributors continue to support them.”79 Representative Eric Fingerhut (D-Ohio; 1993–1994) makes the same point: “[P]eople consciously or subconsciously tailor their views to where they know the sources of campaign funding can be.”80

This dynamic is especially significant for smaller or more obscure issues. As Vin Weber puts it: “If nobody else cares about it very much, the special interest will get its way.”81

Likewise, Jeff Birnbaum: “It’s the obscure and relatively minor issues that produce the most frenetic lobbying. And it is there, on the lucrative edges of legislation, that lobbyists work their ways. Lobbyists constantly obtain special exceptions or extra giveaways for their clients, and few other people ever notice.”82

Again, Eric Fingerhut: “The public will often look for the big example; they want to find the grand-slam example of influence in these interests. [R]arely will you find it. But you can find a million singles.”83

When the issue is genuinely uncertain, or just so obscure as not to be noticed, this lobbying can induce shape-shifting—away from the position the representative otherwise would have taken.

Such shape-shifting is perfectly consistent with Hall and Deardorff’s model. Indeed, the conditions they identify where it does make sense for a lobbyist to try to persuade turn out to be precisely the sort of cases that Fingerhut, Birnbaum,

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