Politicians, said the irrepressible Congressman Barney Frank, “are the only human beings in the world who are expected to take thousands of dollars from perfect strangers on important matters and not be affected by it.”
When it comes to political corruption, the public, reform advocates, media, and regulatory structures tend to single out one or several bad apples. The scandal engulfing longtime Congressman Charlie Rangel is the example du jour. One of my recent favorites is car-salesman-turned-Congressman John Campbell’s push for an exemption for car dealers in the new consumer-protection law. Campbell makes millions in income from properties he rents to car dealers and has taken $160,000 in campaign contributions from them.
But as Lawrence Lessig points out, it’s not about the rotten apples. The whole damn congressional barrel is rotten. The New York Times reported in July that the newly established Office of Congressional Ethics is investigating the fundraising practices of eight members of Congress—three Democrats and five Republicans. The Office, which is headed by former Representative Dave Skaggs, is looking into the eight lawmakers’ fundraising events with Wall Street executives or lobbyists in the few weeks surrounding a House vote on financial-regulation legislation last December.
What is remarkable about this example is that the ethics investigators have set the bar so low. Holding fundraising events at or around times of official action is commonplace in Washington and in state capitals. With this investigation, the new agency basically is saying that the whole system is failing.
That’s not news to voters. Americans already believe Congress is out of touch and not working for everyday citizens:
• a CBS/New York Times survey in June 2010 placed congressional approval at just 19 percent
• in a December 2009 poll, Gallup found that the public ranked members of Congress as the least ethical professionals, scoring below even car salespeople
• according to a nationwide survey conducted last fall by the University of Texas, voters rank themselves least influential among eight groups jockeying for clout in Congress.
How should we approach the rotten core of Congress as an institution? As Lessig argues, we won’t get anywhere if “blindness to this more fundamental”—that is, institutional—“corruption” persists. But while that blindness limits the work of Congress and the courts, reform advocates, well-meaning though they are, may contribute to the stagnation. My colleagues need to rethink thoroughly their proposed solutions.
Reformers need to shift away from ‘getting big money out of campaigns’ and toward ‘getting the people back in.’
Some reformers have focused too much on trying to “regulate away” the problem of money in politics. The courts are having nothing of it. However appropriate it was when introduced in 1996 and passed in 2002, McCain-Feingold is today a shell of its original self. Only the party soft-money ban and stricter campaign contribution limits remain. The DISCLOSE Act, intended to address the fallout from Citizens United, attempts to salvage what it can of McCain-Feingold. DISCLOSE enjoys little citizen interest, but corporate opposition is fierce, and the bill has stalled.
Policymakers have responded to Citizens United as a crisis to be fixed, but they should instead see the decision as an opportunity to envision a new politics of accountability and participation. The institutional corruption problem that Lessig isolates demands such an empowerment-oriented solution. Without it, we’ll continue to prosecute the policies of the last decade, not the next one. We’ll continue to seek policies, for example, that limit the ability of bloggers to engage readers and commenters in electoral debate and action because we’re worried that somehow corporations will exploit blogs or online activism. Or we’ll clamp down on Web sites, like ActBlue.com, that allow for the collective action of millions of dedicated activists, just because the law requires that they register as a political action committee in order to serve as a conduit for small donations.
Similarly, banning election spending by certain classes of corporations is narrow-minded in the face of a rising tide of corporate money. Better are policies that flood the system with new participation that serves as a bulwark against business interests. A real solution will increase the power of regular people to hold politicians accountable.
I am not arguing for abandoning regulations. That would be ridiculous. But those proposing democratic reforms, in general, need a corrective philosophic shift away from “getting big money out of campaigns” to “getting the people back in.”
One possible solution that Lessig points to is a voucher-based system in which every voter gets a $50 allowance to spend on the candidate of his or her choice. It would be interesting to see lawmakers at any level fully grapple with this as legislation, but to my knowledge its proponents have never advanced the idea beyond the academy and opinion pages, at least, not successfully.
Another approach—also suggested by Lessig, and supported by Public Campaign Action Fund, for which I work—is the bipartisan Fair Elections Now Act, currently advancing in Congress. If adopted, it would require that candidates rely only on small donations from their home states and limited, matching “fair elections” funds. Based on working models in states and cities around the country, such a program sidesteps the constitutional concerns that the Supreme Court has raised when policies have sought to limit certain contributions or candidate behaviors. And we know it can work. President Obama’s campaign demonstrated that massive numbers of Americans would participate in the political process as financial contributors if they believed their voices were going to be heard. This should be the scenario up and down the ballot.
Against a big problem like the corruption of our democratic institutions, we cannot rely solely on a new regime of laws to shape the flow of money. We must attract more citizen participation and ensure that the voices of average people are heard. Institutional corruption would then give way to institutional ownership, which is, after all, what the framers envisioned.