Lessig and Corruption

by on April 14, 2008 · 12 comments

Adam last month noted the NRO interview with Larry Lessig in which he promised to blow up the FCC. I share Adam’s puzzlement about what Lessig means by this. Most of us would cheer the idea of FCC-demolition, but there are a lot of regulations that are sufficiently complex that they couldn’t be administered without a regulatory bureaucracy.

Part of it, I think, is that Lessig is merely playing to his audience. As a former right-winger himself, Lessig clearly understands what it takes to catch the interest of conservative- and libertarian-minded readers, and he’s not above spinning his arguments to maximize their appeal to the people he’s addressing. Indeed, on issues where I agree with him, such as Free Culture, I’ve appreciated his ability to frame his policy arguments in either libertarian or liberal terms.

But this makes his anti-corruption turn all the more bewildering. Surely a former libertarian ideologue and clerk for Justice Scalia has read enough of public choice economics to see the challenges his “Change Congress” movement will encounter. When he’s not talking to NRO, Lessig seems to think there’s some kind of pristine “democratic” process that we could get back to if only we could get the money out of politics. But that’s not the way the world works. As Lessig puts it:

So I don’t want a world where there are no lobbyists — I think lobbyists are essential. I think the message of lobbyists and the training of lobbyists is essential. Just like I think that what lawyers do before the Supreme Court is essential. But just as I think everybody would think it weird if a lawyer before the Supreme Court would send $100,000 to the Justice Roberts Retirement Fund or $100,000 to the Renovate Justice Roberts’s Office Fund, I think we better recognize there’s something perverse about a member of Congress having one of the people who is trying to persuade him what the right answer is raise $100,000 for his campaign. That’s the link we’ve got to break.

The problem with this is that there’s nothing special about the $100k campaign donation. It could just have easily have been a $100k contribution to an independent group aligned with the candidate. Or $100k spent on get-out-the-vote efforts in the candidate’s home state. Or promising to give one of the candidate’s staffers or relative a cushy six-figure job as a thank you. Or distributing a politically helpful message to the company’s employees or customers.

Of course, we can try to make all of those things illegal too, but this is a superficial way of looking at the situation. The problem isn’t that there’s a discrete list of corrupt practices that we can identify and prohibit. The problem is that if politicians are willing to be corrupted, and special interests are willing to spend resources to corrupt them, they’ll find ways to get it done. You can certainly reduce the effect on the margin—by banning overt bribery, for example—but once you’ve banned the really obvious categories of back-scratching, it becomes more and more difficult to make any further progress. What’s going on in Washington is disgusting, to be sure, but it’s not new or unique to the United States. And I think fixing it is going to be a lot more challenging than Lessig imagines.

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