March 24, 2012
By Larry Kachimba
Contrary to Ezra Klein's New York Review of Books criticism of Larry Lessig's book, the cause of the growing partisanship in Congress sinvce 1976 is money in politics, along with other dysfunctions caused by the Supreme Court's distortions of the First Amendment to serve plutocracy. Though right about the centrality of money in politics, Lessig's solutions are dangerously non-strategic and defective.
It should probably not surprise us that a Washington Post reporter would serve as an apologist for his company town's local industry. With four suburban counties among the country's 10 richest, Washington is one of two cities in the country prospering from money in politics, while the rest mostly fall into debt and decline as a result of the policies money buys. In his counter-intuitively titled New York Review of Books assessment of Lawrence Lessig's flawed book on money in politics, Ezra Klein attempts to deflect blame for this condition away from his home town's business model. Our Corrupt Politics: It's Not All Money ( NYRB , March 22, 2012). This contradicts the Watergate journalistic edict that made his predecessors at the Post famous: "follow the money."
Prof. Lessig's book, Republic, Lost: How Money Corrupts Congress--and a Plan to Stop It can be criticized on several grounds. But first it should be conceded that Lessig does write a good yarn about the pure form of political corruption he witnessed in his own field of expertise, intellectual property rights. He says he became a campaign finance reform activist upon the unanimous enactment by Congress in 1997 of the Sonny Bono Copyright Act, which extended the term of existing copyrights. This law, he explains, was entirely motivated by money in politics without the slightest fig leaf of public interest to disguise the corruption. But Lessig's knowledge of politics and political strategy is weak. His description of "how money corrupts politics" is less revealing than ex-con practitioner "Casino Jack" Abramoff's book which Klein reviews in the same piece. Abramoff brings a kind of"Plunkett of Tammany Hall" authenticity to the subject that Lessig lacks.
The public does not likely require another generalist's book on the subject of how money corrupts politics. Polls show that 95% understand big money enters politics for the large financial returns that it earns from government favors. Only 17% of voters would define this corrupt government as even having the "consent of the governed ." Ye t another look at the mechanics of the lobbyists' "gift economy" and how it complements the cash economy of campaign contributions to explain how corporate and big money interests get what they want on every issue of importance to them is not likely needed/ The public has spent several decades witnessing the 1% served and the public's opinion routinely ignored on such matters.
The public does desperately need what the second part of Lessig's title falsely promises: ' a Plan to Stop It . " There are many charlatans abroad peddling remedies. A well-informed, clear sighted look at the alternatives is sorely needed. This is where Lessig hopelessly fails. His "Plan" is little more than an endorsement of Congress' latest underwhelming reform proposal and some random ill-considered afterthoughts. He admitted in public that most the strategic suggestions in this book were embarrassingly "insane." He ranks their cumulative possibility of success as 15%, which is generous, whether he intends that figure to predict the likelihood that sufficient voters would back his ideas or to gauge the potential for these ideas to solve the problem even if they did. Lessig supported Reagan at the 1980 Republican convention, worked for Reagan appointee Justice Scalia after law school, says "I still believe Reagan was right," and now wants to help the Tea Party re-write the constitution. This is a politically confused man, albeit one with a mission. He speaks eloquently and passionately in describing the problem of money in politics, but like many journalists and academics, his considerable skill at describing a problem does not impart strategic skill to know how to solve it. His strategies reflect his confusion and lack of strategic capability, and it would be serious mistake to follow any of them.
Lessig's current favorite cure for money in politics -- an Article V constitutional convention - is more dangerous than the disease . That feat is difficult to accomplish, given how bad the disease is. The man Lessig claims taught him this strategy also admits his "family and friends thinks he's crazy" for advocating it. Constitutional law is not Lessig's field and his knowledge of the Constitution is amateurish. The irrational component of his convention plan arises from Lessig's mistake in wishfully thinking that delegates to an Article V convention would be appointed according to some set of imaginary rules that would result in authentic uncorrupted grass-roots representatives of "We the People" constituting the convention membership, rather than products of the very same corrupt process that dominates Congress and state capitals in the real world.
Lessig is so infatuated by his discovery of this totally unused corner of the Constitution that he refuses to heed the warnings of even a leading constitutional scholar/practitioner like his Harvard colleague Lawrence Tribe. Tribe has publicly warned Lessig about the multiple constitutional uncertainties in the convention process. Tribe explains that those uncertainties will be decided by the corrupt system itself. A convention would differ from the considerably less - but still - misguided constitutional amendment approach by enabling the distancing of the careerists in Congress from responsibility for the consequences of a convention. A convention allows other agents of the plutocracy to do the dirty work of executing the final and complete overthrow of democracy and entrenchment of the 1% that such a constitutional convention in the current undemocratic, corrupt and propaganda-dominated political order would almost certainly produce.
Lessig has no credible answer as to how "We the People" could, any more than it currently controls Congress, possibly secure or maintain any control over such a complex, drawn out, and uncertain process that a convention would entail, with the multiple unpredictable contingencies that Prof. Tribe describes. Article V's constitutional convention was designed solely for a situation where most of the states are at odds with the federal government. This is not the case today. Both levels of government should have the same institutional interest in protecting their power over elections from encroachment by the Court and not be opposed to each other in the matter of money in politics. But both have been subject for over three decades to the same corrupting rules mandated for elections by the Supreme Court, with similar effects.
If elections were not corrupted, Congress and the State legislatures would respond to the demand of voters and be aligned together against the unelected Supreme Court in defense of their joint Art I, Sec. 4 constitutional powers to protect election integrity. Montana has, for example, taken up the task that Congress has so far neglected to defend its elections from the ruling in Citizens United. Western Tradition Partnership v. Attorney General ( December 30, 2011) stayed pending writ of certiorari sub nom. American Tradition Partnership, Inc. v. Bullock, 565 U.S. _ (February 17, 2012). Other States and Obama's Solicitor General should join Montana in a united opposition to the Court.
Lessig fails to understand that the Constitution is not the problem to be changed, but the solution to be enforced. The problem is the Supreme Court's unconstitutional usurpation of State and conressional power over elections under bogus First Amendment interpretations. Under Art III, Sec 2, Clause 2 ("the Exceptions Clause") of the Constitution Congress possesses complete power to solve this particular problem by carving an exception to the Supreme Court's jurisdiction over election law. Only a single law passed by majority vote of Congress, including within it the restoration and augmentation of all the election integrity laws declared unconstitutional by the Supreme Court, is required. Lessig's plan would require a new Constitution, drafted by an unpredictable convention, called by a similar vote of Congress after "Application of the Legislatures of two thirds of the several States," and then "ratified by the Legislatures of three fourths of the several States." After this process a law would still be necessary to enforce the new Constitution in the area of election financing, and then that law would have to be upheld by a the still plutocratic Supreme Court majority, still in possession of its usurped powers to dictate, according to its own political preferences, what the new constitution means with respect to financing elections. This is such a prolonged, unpredictable, and dangerous process as to be considered just as "insane" as Lessig himself considered his other strategies to be.
Ezra Klein neglects these serious failings of Lessig's non-strategic thinking, thereby weakening Klein's own claim to any special expertise in this field. He instead wrongly focuses his criticism on one point that Lessig does not get wrong: his premise that money in politics is the root of the important political evils plaguing the country. Lessig is right in contending that until this problem is solved none of the significant problems now reaching crisis proportions, whether concerning the economy, the environment, government budgets, security, and so on will be satisfactorily solved.
Klein's approach would at best palliate the symptom rather than change the system. His own alternative theory is that, "while moneyed interests are decisive in passing laws and influencing provisions that few Americans care about, they're much weaker on the issues where Americans are actually watching." After dismissing the importance of the former supposedly "small stuff" presumably not worthy of public attention, Klein contends that in contrast to such political "quantum mechanics " [y]ou need a theory of general relativity to explain the big stuff. And that theory is partisan polarization."
Klein is no Einstein. His partisan polarization theory is less general and independent of money than he thinks. First, Klein's formula implies the highly questionable assumptions that 1) "the big stuff" the public may be watching is most of what government does, 2) that money invested in propaganda does not determine what most Americans get to watch and "care about" in the first place, and 3) that the public's "care" about any particular policy will affect political results, if contrary to the wishes of the 1%. ( Martin Gilens ' work shows it doesn't) . Second, even aside from these dubious propositions needed to sustain his theory that something other than money determines important political outcomes, Klein misses the role that money, and the advertising that it buys, has played in creating increased partisan polarization since the 1970's.
Klein's sole argument relies on Lessig's mistaken word for when the modern era of money in politics started as 1994. He therefore misses the close temporal alignment between the rise of the modern era of money in politics, which actually started almost two decades earlier, and the rise of political polarization. The origins of both trace to the Nixon era. As Chart 1 shows the low point of congressional polarization was when Nixon assumed office. After he appointed four Supreme Court judges Nixonian political corruption became constitutional law. The modern era of legal money in politics began in early 1976 when the "Nixon Court" transformed political money into protected speech in Buckley v Valeo. Months later in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, the Court proceeded to free purely commercial advertising from regulation using the same retooling of the First Amendment to overturn economic regulations opposed by corporate interests. In 1978 the principles from both cases were applied in Bellotti to enable corporate spending on referendum and other "issue" campaigns. The Roberts Court eventually gave an expanded meaning to "issue campaigns" that encompassed thinly disguised campaigning for or against candidates. Then, dropping even the thin disguise in Citizens United , the Roberts Court extended the Bellotti ruling to allow unrestrained "independent" corporate money into election campaigns .
Buckley money began to dominate politics in 1976, just as unregulated Virginia Citizens advertising began to commercialize the culture , encouraging consumerism, immersion in propaganda values, over-consumption, and debt. Jacob Hacker and Paul Pierson, Winner Take All Politics: How Washington Made the Rich Richer and Turned Its Back on the Middle Class (2010) show that starting at this time the policies that money bought reversed the previous decline in economic inequality. By the late 70's inequality had started its now continuous upward trend (Chart 2). At the same time, the effect of increasing amounts of political money initiated a parallel upward trend of congressional polarization (Chart 1). McCarty, Nolan, Keith Poole and Howard Rosenthal.. Income Redistribution and the Realignment of American Politics. Washington D.C.: American Enterprise Institute (1997) ; McCarty, Nolan, Keith Poole and Howard Rosenthal, "Political Polarization and Income Inequality." Princeton University (2003).
Klein does not provide a plausible theory for the increase in congressional partisanship. He treats it as if it were an autonomous phenomenon. But once Klein's erroneous assertion that the two phenomenon of money and partisanship were not temporally parallel is corrected, political money and the inequality that it has caused must be held as the prime suspect. As money gave rise to candidate-centered politics, party allegiance became, if anything, less important to voters. Martin P. Wattenberg, The Rise of Candidate-Centered Politics and Where Have All the Voters Gone: The Decline of American Political Parties. During this same period, the numbers of independent voters increased or at best stayed the same. Linda Killian, The Swing Vote: The Untapped Power of Independents (2012). P olitical pollsters Scott Rasmussen and Douglas Shoen describe polling that shows the widest division is not within the electorate but between the people and the politicians - a ruling "political class" minority (7-14%) and the angry "mainstream" majority (55-75%), wholly independent of political affiliation. "In many cases, the starkest divide on issues, attitudes and outlooks is not between conservative and liberal, Republican and Democrat, but between mainstream Americans and the political class." Mad as Hell: How the Tea Party Movement is Fundamentally Remaking Our Two Party System (2010) 108. The factor that caused the increase of congressional polarization must be sought within the congressional party itself, not mainly among the electorate.
What changed about the congressional parties in the late 70's was the increased role of money in politics as the decisive factor in gaining and holding office. Money immediately changed the type of politician attracted to Washington. Tip O'Neill, elected Speaker in 1977, managed the transition of the congressional Democrats after 1976 to the new money regime with his casual view of campaign finance ethics. He undermined the more ethical Carter while welcoming and supporting Reagan so that the congressional Democrats could remain a lesser evil as they moved to the "center" in pursuit of business money. Walter Karp, Liberty Under Siege: American Politics 1976-1988 (1988) . Rainmakers like Rep. Tony Coelho - elected in 1978, and an early adapter to the new order of money in politics of the Rahm Emmanuel school -- quickly assumed party leadership roles on the basis of their corporate fundraising prowess.
Congressional leadership positions went up for sale as leadership PACs became instrumental in procuring them. Leadership which in the pre-partisan years could also stretch across the aisle, became disconnected from political accomplishment and skills other than raising money. Leadership is now purchased from party members, and disloyalty by members entails a cut in funds from the leadership. Money routed through leaders secures party discipline. Obama became the " King of leadership PAC s" in 2008, which helped buy him the support of decisive super-delegates. Leaders -- and therefore their political contributors - control the agenda, which insulates it from any momentary democratic urges from back-benchers to take up proposals that majorities might support.
Both party leaders and their followers who want to retain office in post-1976 Washington must spend most their time raising money. Winners of seats in Congress raise about twice as much as losers on average. The need to establish product differentiation sharpens partisan differences in the competition for money. This became increasingly challenging as the actual product became centered on serving the less than 1% of US adults who furnish money in politics, or more precisely the less than .06% who gave more than $2,400 in 2010.
For access to larger amounts of money it helps to already have control of an influential lever of governance required for influence peddling. Partisanship provides the means to secure control of those levers. As an individual member's prospects for raising money became more tightly connected to the party's control of the levers, the partisan struggle for control of Congress and the presidency became sharper due to the higher stakes for the party members.
What does money in politics buy? It is expensive to assure that propaganda, not truth, wins out in the marketplace of ideas. As Congress members market their services to "the 1% of the 1%" on important issues, they need to obscure that reality while convincing constituents they are serving majority interests on these or other issues. Money buys access to those single issue voters that can be cultivated without alienating, indeed can be converted to supporting, the material interests of those who give the money. The interests of the 1% came to be identified as "centrist" because both parties overlap at the point where the money falls.
Narrow-cast marketing to find and inform all those anti-abortionists, gun advocates, state religionists and other polarized "values" voters without overtly inflaming pro-choice, and other majorities is expensive. In a polity dedicated to the interests of the 1%, partisanship arises from the need to suppress the vote of those generally interested in good government -- those who understand that it makes no difference to the fundamental issues which party is in power - while appealing to people motivated by polarized special interests that do not challenge the power and wealth of the 1%. These tend to be eternal issues like conflicts of values on gender, sex, and state religion, questions not amenable to durable political solutions under the liberal-leaning US Constitution and electorate. They are addressed, though never resolved, through largely symbolic, marginally constitutional, legislative and administrative acts. Steve Shier, By Invitation Only: the rise of exclusive politics in the United States (2000) describes the contemporary political process as an expensive effort to suppress political knowledge and turnout while "segmenting the public and commanding the attention of only particular citizens."
This kind of special interest politics moved from the margins to the mainstream immediately after 1976. These years saw the transformation of the NRA from a gun safety group to being the gun industry lobby, endorsing Reagan in 1980; AIPAC became a major force in shaping American foreign policy. The likes of the "moral majority" religionists supported Reagan tax cuts for the rich while money from the latter helped them stop the ERA. (The 1976 Republican platform still supported ERA, while for the first time opposing abortion.) The 1% need to buy support from voters who would ignore their own political and economic interests as union members and workers in favor of such wedge issues. Nancy L. Cohen, Delirium: How the Sexual Counterrevolution Is Polarizing America (2012). The Republican party became a grand alliance between the 1% and the Christianist Right-Gun Lobby-Misogynist-Gay bashing "values" voters. The Democrats became a grand alliance between the 1% and "lesser evil" voters on the liberal side of those same kinds of issues. Berry, Jeffrey M. and Wilcox, Clyde. The Interest Group Society. (5th ed. 2009).
After 1976, labor lost legislative battles under both parties, though it took several decades of disappointment before unions began in 2011 to reciprocate by withdrawing their financial support from Democrats. Obama has found a way to both ignore the unions' legislative demands while extending support of union leadership for one more election He spins the trickle down economics of corporate shareholder bail-outs as if they were job-saving measures. Not even discussed was why the bankrupt auto industry was not turned over to the workers to manage in which case the jobs might have been more worth saving.
As money in politics led directly to policies, like weakening of unions, that increased inequality, that inequality has in turn led to a myriad of social dysfunctions. A few of the latter described in R.Wilkinson and K.Pickett, The Spirit Level: Why Greater Equality Makes Societies Stronger (2009) are anxiety, violence and lack of social trust, which provides a fertile social environment for divisive politics that have, since Nixon, become increasingly mainstream. A more equal society has more civil politics, and would reject the angrily authoritarian divisiveness that characterizes the Republican "base" and its propagandists on the public's airwaves, which under the new "free speech" rules are no longer protected by effective public interest constraints. But the aggression in the electorate is stimulated around issues, not parties.
Ezra Klein makes a distinction without a difference by concluding that "as big a problem as money is in politics ... it is probably not even the worst one." But his "worst problem" in Washington, partisanship, is simply one of the side effects of money in politics, just as increasing inequality and the social effects of inequality are caused by money in politics , along with its companion new First Amendment "right" of commercial speech. It is very difficult to find any dysfunction that arose in American culture and politics after Nixon that is not a result of one of the Supreme Court's two related 1976 decisions that constitutionalized respectively political bribery and unrestrained commercial advertising . Both decisions overturned, under the guise of free speech, common sense restrictions on electioneering expenditures, political and commercial advertising, and other communication tools of plutocratic control like lobbying.
The solution to excessive partisanship that troubles Klein is the same as the solution to inequality and every other broken feature of the American political and cultural landscape. Stripping a Supreme Court in service to plutocracy of its power to impose unrestrained special interest political and commercial advertising on the country under its novel reading of the First Amendment would permit a return to common sense democratic regulations in both of these related fields. If both the mass media and elections are not brought under democratic control, democracy itself will soon disappear.
A creative thinker on matters of public policy and art, and a principal researcher. Current focus of work is on the strategies democracies can use to protect against overthrow by corruption, with immediate attention to the mess being made by plutocrats in the US.