July 16, 2008 11:39AM

Larry Lessig’s Crusade against “Money in Politics”

A few months ago, during a visit to DC, I had the pleasure of meeting Chris Hayes, a sharp writer for the Nation. At the time, he was working on this profile of Larry Lessig, which I missed when it first ran back in May. Lessig made a name for himself with his writings on copyright policy, which have greatly influenced my own work on the subject. He made headlines last year when he announced that he would be leaving copyright policy behind to focus instead on a new project that became the Change Congress movement. The goal is to use cutting-edge tools to pressure members of Congress to take four pledges: to stop taking money from lobbyists and PACs, to support earmark reform, to support increased government transparency, and to support public financing in campaigns. As Hayes describes it, Lessig's fundamental goal is to, in the oft-repeated phrase, "get money out of politics":

In today's terms, you might call it the Medicare Part D problem: even when Congress starts out with a laudable policy goal, like providing prescription drugs for seniors, by the time the legislation gets through both houses it amounts to little more than a grab bag of giveaways to politically connected business interests. Case in point: the recent Senate-passed Foreclosure Prevention Act, which contains $25 billion in tax breaks for home-builders and other businesses while doing very little to justify its name. The reason for this is straightforward: the amount of money spent on lobbying in the last Congressional session was $2.8 billion, nearly two times more than was spent in 2000. Overall, industry has contributed $14 million to Congressional candidates in this session.

This money, Lessig says, insidiously distorts Congressional outcomes and priorities because Congress members don't experience it as corruption. "Let's say you go to Congress," says Lessig, "and you believe there are two problems to deal with: piracy of copyrighted materials and welfare mothers who are really getting screwed by the system. You open up shop, and a million [lobbyists] come in and say we've got a thousand things to tell you about piracy, and nobody comes into your office and says we're going to help you with the welfare moms. So you shift your focus, but you never feel it. You think: maybe I could've spent more time on welfare moms, but I'm having a real effect on stopping piracy! That's the dynamic that is so critical here."

What's striking about this example is that it actually has very little to do with campaign contributions. The hypothetical here isn't that the member of Congress starts out with a "good" position on copyright issues and then is persuaded to change his mind when the lobbyist hands him a sackful of campaign cash. Rather, the hypothetical is that the member of Congress already has a variety of legislative goals, and he's swayed by lobbyist pressure to focus on the ones that serve well-connected interests and ignore the ones that serve the broader public.

Now, I assume Lessig's point would be that the campaign contributions are what give the lobbyist his persuasive power, but I think this misses the point of his own example. Campaign contributions certainly give lobbyists increased leverage at the margin, but I think they're clearly a relatively modest source of influence, all things considered. First and foremost, the lobbyist's leverage likely comes from the sheer force of persistence. As Lessig himself describes it, the lobbyist has "thousand things to tell" the member about the copyright issue, and with hardly anyone willing to make the trip to Washington to give the other side of the story, the member gets a distorted picture of the debate. Moreover, lobbying firms tend to hire people who already have personal connections to members of Congress and their staffs. The lobbyist might be a a former Hill staffer, a Congressman's cousin, the college roommate of a Senator's legislative assistant, or whatever. Moreover, lobbying firms and corporations are able to promise key staffers lucrative jobs in the private sector on their next trip through the revolving door.

But the fundamental problem is simply that there's nobody coming in to advocate for the welfare mother (or, it should be noted, the taxpayer who's footing the bill for the whole enterprise). Even if tightening campaign finance rules were to diminish the influence of the "bad" lobbyists, that's not going to help very much if there's no one on the Hill advocating for the "good" side of any given debate.

This is, in other words, not a problem with "money in politics"; it's a problem with politics. Wealthier, more sophisticated, and better organized interest groups always find ways to turn the political process to their advantage. Those with the ability to influence the process will sell their services to the highest bidder. One advantage of campaign contributions is that they're at least relatively transparent, something that can't be said for lobbying contracts.

I think Lessig is actually right about the potential of the 'net to change politics. It's easier than ever before for activists of all kinds to find one another, form ad hoc groups, and exert grassroots pressure on key decision-makers. And for a variety of reasons, that will make special interests with their lobbyists and $2300 campaign contributions less influential on the Hill. But Lessig's focus on money strikes me as confusing the symptom for the disease. Politics just is a process whereby the politically well-connected steal from the rest of us. Lessig seems to think there once was, or someday can be, a pristine political process untainted by "money in politics." But that represents a fundamental misunderstanding of what the political process is and how it works.

It's simply never going to be possible to pass enough regulations to eliminate the influence of "bad" lobbyists on the political process. Certainly, "getting money out of politics" won't do it. It's far more effective to build institutions to ensure that the "good" side of any given issue gets a real hearing. The Internet is making that easier than ever before, by lowering the barriers to entry for political participation. It is therefore unfortunate that Lessig is, in a sense, recruiting cutting-edge digital activists to help him fight the last war. The goal should not be to smash the old system, but to build new institutions that give more influence to ordinary voters and taxpayers. The Change Congress movement doesn't seem likely to do that.