The Flawed Iceberg Model

Lawrence Lessig’s essay takes the familiar questions surrounding private money in politics and dresses them up with new flourishes. Before, people asked, “do campaign contributions influence legislation?” Now Lessig frets about “institutional corruption” where “an influence” in “an economy of influences,” um . . . exercises influence! Furthermore, in Lessig’s analysis, political money isn’t just what is raised and spent; there’s also an “iceberg” component we can’t see, but that is part of the economy of influence. We have heard similar things before, and have learned some hard lessons about the effectiveness of trying to “reform” the competing pressures of politics. We need to remember those experiences and not be misled into thinking that somehow a new representation of an old argument voids them.

Consider first Lessig’s description of the problem. Lessig contends that private contributions to candidates for Congress redirect recipient incumbents from serving the “public interest” toward serving “special interests.” Yet to the extent this is a testable hypothesis, the empirical data do not prove it.

Lessig combines the conventional money-in-politics fear with the iceberg theory, whereby the threat of an expenditure in a candidate’s race can bring a member to heel on a policy issue when he or she otherwise would remain independent. The iceberg model suggests that the influence of political funding should be measured more by the power of a threat to fund an opponent than by the effect of the spending on behalf of a candidate. Lessig insists that this threat will only get worse with independent corporate spending. But while the model is coherent, it doesn’t necessarily reflect reality.

We haven’t observed such threats before, and corporate and union spending on issue advocacy has been a regular feature of campaigns since the early 1990s. Independent expenditures by committees and individuals always have been permissible. Why no iceberg-type threats? Because it is unlikely that the hypothetical threat to spend against a member will be realized. Most members of Congress are incumbents in safe seats; moreover members enjoy support from people who would be outraged at any flipflop (see, Bart Stupak). In a competitive race, how wonderful would it be to refer such an incident of threat to the authorities, tarring one’s opponent with the taint of scandal (see, Joe Sestack)? If an incumbent did reverse, a challenger could raise the specter of influence peddling. Lessig’s essay has deeper problems. His premise is that a properly functioning Congress, as structured by the framers, would be, per Federalist 52, “dependent upon the People alone.” Therefore, he reasons, the participation of special interests in campaigns corrupts Congress. This premise is wrong.

Lessig reads that line from the Federalist Papers out of context. Recall that in Federalist 51, Publius (a pseudonym for Alexander Hamilton, James Madison, and John Jay) argued that checks and balances in government and society would help preserve the people’s liberty. Moreover, Publius noted, “If a majority be united by a common interest, the rights of the minority will be insecure.” It is not possible to square that fear of the tyranny of the majority with Lessig’s prescription that Congress be dependent on the people alone in order to serve the (necessarily majoritarian) “public interest.” In fact liberty, according to Publius, is served by competition among a multitude of interests.

Lessig is not the first to propose reforms to the characteristics of politics that he describes. To date, no one has designed a political-reform proposal that would impose evenhanded, apolitical solutions and materially improved governance.

The original corporate contribution ban, proposed by Elihu Root in 1894, took advantage of a scandal involving the Democratic Party and the Sugar Trust. Notably, once Root’s Republicans succeeded in embarrassing their rivals, they withdrew their own proposal rather than see it become law. The $5,000 federal contribution limit, first included in the Hatch Act amendments of 1940, was an attempt by New Deal Democrats to defeat the amendments with a poison pill. Once the amendments were enacted, campaign spending continued as it had previously, but it was channeled away from political parties and toward outside groups. The same can be said for the effect of McCain-Feingold.

The expenditure ban held unconstitutional in Citizens United was quietly added to 1947’s Taft-Hartley Act by anti-labor House Republicans. It had not been in the original bill, and Senator Taft later (unsuccessfully) sought to remove it. Unions succeeded in several legal challenges to the expenditure ban, and the Department of Justice thereafter declined to prosecute these cases, believing the ban would be declared unconstitutional. President Truman said the expenditure ban was a “dangerous intrusion on free speech, unwarranted by any demonstration of need.” Justice Kennedy’s Citizens United opinion said much the same thing.

A number of states have adopted the “clean elections” reforms favored by Lessig, but researchers repeatedly have repeatedly found no evidence that public funding delivers any of the benefits it promises. Instead it imposes a real cost by diverting tax money that could be used elsewhere.

To observe that the people are the ultimate source of sovereignty, which they are, doesn’t tell you how representatives should be chosen or govern once in office. A healthy political system, and the one designed at the founding, includes competition among many “interests”—constituents, faith groups, families, contributors, consultants, neighbors, employees, journalists, and colleagues—for representatives’ attention and support. Allowing members of Congress to enact restrictions on who may be a part of this debate, we know from experience, is not simply unconstitutional, but also a bad idea. If there is an unseen iceberg in politics, it is the parts of political reality assumed away by scholars such as Lessig, who reduce this rich mix of influences to a narrow question of private money in politics.