Democracy After Citizens United

Ndf_35.5_octobucks Lawrence Lessig in the Boston Review:

Institutional corruption does not refer to the knowing violation of any law or ethical rule. This is not the problem of Rod Blagojevich, or, more generally, of bad souls acting badly. It instead describes an influence, financial or otherwise, within an economy of influence, that weakens the effectiveness of an institution, especially by weakening public trust in that institution. (An “economy of influence” rather than the simpler “system of influence” to emphasize the reciprocal character of such influence, often requiring little or no direct coordination.)

Congress is a paradigm case. Members of Congress run privately financed campaigns. The contributions that fund those campaigns are not illegal, or even unethical. To the contrary, they are protected speech under the First Amendment.

Yet arguably—or maybe obviously—those contributions are (1) an influence (2) within an economy of influence that has (3) (quite likely) weakened the ability of Congress to do its work, by (4) (certainly) weakening public trust in Congress. The vast majority of Americans believe money buys results in Congress; less than a quarter of Americans believe the institution worthy of their trust. When “free-market” Republicans vote to support milk subsidies or sugar tariffs, or when “pro-consumer” Democrats vote to exempt used-car dealers from consumer financial-protection legislation, it is easy to understand the mistrust and hard to believe that the influence of money hasn’t weakened the ability of members to serve the principles, or even the interests, they were elected to represent.

This is “corruption” not because it describes the acts of evil or corrupted individuals. Members of Congress are insanely hard-working, decent souls, the overwhelming majority of whom entered public service to do good, as they see it. And indeed, the traditional corruption of politics—bribery—is likely at its lowest point in American history. From the perspective of criminal law, this is among the cleanest Congresses ever.

Instead, this is “corruption” because it weakens the integrity of the institution, of Congress itself.

Responses from Will Wilkinson, Marvin Ammori, and David Donnelly, with others to come, can be found here.