Lessig’s Republic, Lost

by Henry Farrell on June 25, 2012

The Montana decision today has provoked me to write up the review of Larry Lessig’s _Republic Lost_ (Powells, Amazon)that I’ve been planning for the last few months. Short version: there is a lot to like about the book. If you are looking for a good account of the systematic corruption of American politics, this is that account. If you are looking for the account that might convince your centrist/moderately conservative aunt or uncle that there is something wrong, even better – Lessig writes far better than I can for that audience, although he makes it reasonably clear that his allegiances are left-of-center. This said, there’s a lot to disagree with too. Most broadly, I don’t think that his updated version of early twentieth century progressivism will do what he wants it to do, although it could surely help. The fundamental problem that Lessig sees is one of money in politics – if one can cleanse out the Augean stables by attacking dubious relationships between politicians and lobbyists and fundraisers, one could win back the Republic. The fundamental problem that I see is one of economic inequality – even if there are no obvious quid-pro-quos between legislators and those wanting to sway them, the system will remain corrupt. In short – if there is a friendly argument between Lessig and Chris Hayes (and I suspect there is), I think that Chris has the better of it.

First – the stuff that I like. Lessig does a great job in analyzing and laying out the extent of corruption in US politics. He writes the book in a way that may well be semi-deliberately naive, so as to suggest that the problem lies less in individuals (he suggests that most members of Congress are likely decent human beings) than in their incentives. I mostly don’t buy this, to the extent that I am _expected_ to buy it – but I think that it serves a very valuable analytic purpose. It separates out, and puts to one side, questions of individual blame (it’s easy, but not always useful, to single out corrupt scumbags) and forces readers to look at the corruption of the _system._ To put it another way, I don’t think I am the imagined audience of the book, since I am already largely convinced. It talks more directly to people who think that the problem is one of a few (or more than a few) bad apples, and shows patiently that they are wrong – that even if there were a Congress composed entirely of Mr. (and Ms.) Smiths, it would likely fall victim to the same kinds of problems.

Lessig also argues against the political science literature which suggests that there is no very obvious relationship between political donations and legislative outcomes – he suggests in effect that this literature is subject to wide-scale selection bias, because the observed legislative outcomes tell us little about the proposals that never even made it onto the agenda. This fits well, in broad terms with e.g. the “arguments of Hacker and Pierson”:https://crookedtimber.org/2010/09/15/review-jacob-hacker-and-paul-pierson-winner-take-all-politics/ on policy processes and the importance of drift. Money may not do much to explain why legislators choose _a_ when they are confronted with the choice between _a_ and _b_, because at that point, money and ideological predilections are already more or less lined up with each other. But it _may_ potentially play an important role in explaining why the choices are between _a_ and _b_, rather than, say, _c_, _d_ and _e_, which may be more appropriate ways of dealing with the problem, but which have died in committee or sub-committee, or never even been put forward, because it was clear that they had no prospect of success.

Lessig points to the ubiquity not of direct corruption but of gift exchange – the sociological patterning of mutual obligations over a long period of time. It isn’t so much that members of Congress take donations as a direct quid pro quo for voting for specific items of legislation. It is that they are involved, over the longer term, with quasi-personalized relations of diffuse reciprocity, in which no specific donation or legislative favor is earmarked as a direct exchange, but where there is an overall pattern of informal expectations, which are extremely difficult to wriggle out of. There is an analogy here, which Lessig doesn’t make, to the mafia. The opening scene of the _Godfather_ (perhaps the most over-used piece of movie footage in undergraduate classes in the social sciences) is quite accurate in its portrayal of how many people come under the sway of the mafia through the exchange of favors in what game theorists call an indefinitely iterated relationship.

Here, Lessig quite self-consciously builds on the legacy of the Progressives, who sought to replace what they saw as a politics dominated by various forms of partisanship, corruption and cronyism with clean administrations, bureaucratic norms and the like. Of course, it is more difficult to eliminate nepotism from politics than it is from bureaucracy – politics often runs more or less directly on the promise of particularist exchange (witness Orrin Hatch’s recent promises that if he is re-elected, he will move up the ranks of seniority and be able to bring all sorts of goodies back to the voters of Utah). It is _particularly_ difficult given the US Constitution, and the way that it has been interpreted (e.g. _Buckley v. Valeo_ ) in ways that see financial donations as a legitimate form of expressive activity. Lessig has clearly more or less given up on achieving change in constitutional interpretation through the court system (and given the current climate, who could blame him). Instead, he is pushing for a grassroots politics of reform. In particular, he argues for a movement at the state level that would push for a new constitutional convention, that might revisit the relationship between money and power, making it easier to regulate this relationship. He believes that there is common ground between the left and the Tea Party right that could improve the chances of reform – both see the relationship between money and power as corrupt. Again, I’m more skeptical (teh Twitter tells me that Tea Partiers were there today cheering wildly at the Montana decision), but this still doesn’t mean that there isn’t some grounds for possible movement. I _particularly_ like his suggestion that any convention be composed of randomly selected citizens accompanied by shadow conventions at the state level, using deliberative polling to produce proposals. This obviously fits with the kinds of arguments that Cosma and I have been making about “cognitive democracy”:https://crookedtimber.org/2012/05/23/cognitive-democracy/.

This all is very good – but it is, pretty self-consciously, a Progressive agenda in both the good and bad (for my idiosyncratic understanding of good and bad) senses of that term. It is an agenda based around _reform_ (albeit root-and-branch reform) of the _political process_ rather than consideration of the economic process too. At multiple points in the narrative, Lessig says that he has no problem with people being rich as such – instead, he’s interested in opposing those whose riches come from manipulation of politics and government. He closes the book by talking about the few, public-spirited rich people who have done a lot to try and underpin the process of reform. Lessig surely recognizes the corruption of the present system, but he also yearns for more public spirited _noblesse oblige_ and a better, more intelligent and more decent centrism.

This leads him into some direct errors. As “Ezra Klein argues”:http://www.nybooks.com/articles/archives/2012/mar/22/our-corrupt-politics-its-not-all-money/?pagination=false he greatly overstates the consequences of his particular concern – corrupted relationships between funders and politicians – for American political life in general. To take one specific example (not from Klein), Lessig argues that money helps drive polarization –

Extremism, in other words, pays – literally. As one study summarized the research, “An incumbent’s ideological extremism improves his or her chances of raising a greater proportion of funds from individual donors in general and small individuals contributors in particular. Extremism is not the only way to raise money […but] to some legislators, extremism is an advantage.”

But as Nolan McCarty (who has done research on this topic) “points out”:http://themonkeycage.org/blog/2012/03/13/lessig-klein-and-the-economist-on-polarization-spending-and-gerrymandering/, this is a misinterpretation. Overall, extremism doesn’t pay out in financial terms.

bq. The data clearly show that members with extreme DW-NOMINATE scores suffer a slight penalty in fundraising. Even if there is now a stronger correlation between fundraising and extremism, I note simply that Congress was plenty polarized by 2002 without fundraising being an important source of it. Moreover, in a recent paper, Bertram Johnson (cited by Lessig in Republic, Lost) does find that extreme candidates receive a greater proportion of their funds from individuals and from small donors. But this paper reconfirms our finding that extremism does not raise the _absolute level_ of contributions from individuals over all.

It also leads him to adopt an agenda which is less focused on changing the _structural influence_ of different groups in society (e.g. through addressing economic inequality) than in seeking to moderate that influence through limiting the importance of fundraising. Here, the evidence is murkier. But there is good reason to think that the structural influence of economically powerful actors is _not_ simply mediated through donations, but can happen in a variety of different ways. For example, Charles Lindblom’s excellent book, _Politics and Markets_ talks about how the ability of a business to decide to locate a new office in district _x_ rather than district _y_ provides the owners of that business with very substantial influence over politics, of a sort that would not be alleviated even in a system of fully publicly funded elections. More generally, much of the ‘donations have no direct influence on legislation’ literature tends to support this argument – it explains the apparent mismatch between a legislative system in which there is little evidence that donations change legislation, and a political system in which the rich do remarkably well, by reference to structural power and the dominance of the _status quo._ As described in Frank Baumgartner, Jeffrey Berry, Marie Hojnacki, David Kimball and Beth Leech’s excellent overview book, _Lobbying and Policy Change: Who Wins, Who Loses and Why,_ (p.23)

bq. Readers may be surprised by [our expectations that material resources do not explain actors’ success in achieving policy goals], as they go against decades of study of policy change and lobbying and seem to fly in the face of the obvious assumption: of course the wealthy win in Washington. We would simply say: If the wealthy are so certain to win, they should already have won in a previous iteration of the process. Since the distribution of power should already be reflected in the status quo, there is no reason that _changes_ to the status quo, which is what lobbying is about, would necessarily move in the direction of even further gains for the wealthy (nor systematically against them). After all, if the status quo reflects a rough equilibrium of power, and we believe it does (and a quite unfair equilibrium in many cases, with much greater benefits going to the privileged and the wealthy than to the needy and the poor), then changes to the equilibrium should reflect only changes to the mobilization of these interests. In the short term, such changes are likely to be random.

This also fits with recent work on policy drift, albeit in a somewhat different way. It returns us to the Chris Hayes and Aaron Swartz analysis – if they are right, economic riches are fungible into political power without political donations (although donations surely help facilitate this). This further implies that the ‘striking at the root’ that Lessig would like to see should involve striking at economic equality, which is the root of the problem, rather than sleazy relationships between politicians and funders, which are merely a symptom. One can’t change the equilibrium without changing the equilibrium.

This said though, there remain enormous practical difficulties for leftwingers too. If Lessig’s reformist politics are hard to achieve, the kinds of redistributive politics that Chris, and Aaron (and I) would like to see are harder still. I saw Chris talk last week in Washington and he was genuinely worried by a question, which pushed on more or less this problem. He expressed the hope that the increasing frustrations of the upper middle class, who are coming up against the problems of meritocracy, might spur reform. Lessig, for his part, looks to reformist millionaires. Neither of these seem to me to be especially hopeful prospects. The problem that both Lessig’s politics, and its more left-wing sparring partner faces is a straightforward one – how do you push for serious change in an unequal system, whose inequalities mean that the people who are getting most badly screwed (the unemployed, workers, the lower middle and actual middle class) are just those people who are most powerless to achieve change? I don’t see any very straightforward answers to this question myself.



Data Tutashkhia 06.25.12 at 6:53 pm

how do you push for serious change in an unequal system, whose inequalities mean that the people who are getting most badly screwed (the unemployed, workers, the lower middle and actual middle class) are just those people who are most powerless to achieve change?

By a credible threat of chaos. By demonstrating the possibility that all that great loot ‘the top 1%’ has accumulated could easily turn into dust. They might give up some to save the rest of it.


Metatone 06.25.12 at 7:57 pm

In my view, the virtue of something like the Lessig agenda is that it is a stepping stone. It’s only slightly easier to accomplish than addressing inequality, but it is easier – and if we step out of political analysis into cultural analysis, potentially much more palatable to the culture of the USA at this time.

It is no panacea, but it will help. And it’s hard to envision how you get to the Hayes-world without either a serious threat (as Data T implies) or by getting Lessig-world first. For all the evils of class warfare occurring in Europe right now, it is noticeable that the slightly greater difficulty of turning money into votes there has kept social democracy more in the frame than in the USA.


blavag 06.25.12 at 8:11 pm

On the mafia comparison see Yves Smith and Matt Taibbi;


Aaron Swartz 06.25.12 at 8:55 pm

You’ve done a masterful job of reading between the lines and reconstructing the Chris and I vs. Lessig debate (or else someone just told you). As for the solution, since Lessig has thrown his lot in with the rich and Hayes has taken the upper middle class, I’m obvious left with defending the proletariat as the revolutionary class. It’s not a particularly hip position, I suppose, but it still seems right to me. (I also think there’s something to the Chavez thesis that American politics can only be fixed by the threat of a good example in another country, but I guess it’ll be up to someone other than a privileged-white-American-guy to defend that position.)


David Kaib 06.26.12 at 1:04 am

I’m not sure Lessig’s argument depends very heavily on the claim that extremism pays. The central point, one Ezra seems to have difficulty even understanding, is that money shapes what things make the agenda and how questions are framed. Orthodox political science doesn’t study this, but rather focuses on formal decisions because 1) despite it’s self professions, it is quite formalistic and 2) formal decisions are easy to count.

That said, I think Lessig is wrong about the possibilities of a true tea party / progressive alliance, and I agree with you that addressing corruption alone, without attacking inequality, is not enough. And I don’t see that coming from the top or the close to the top, but rather from the bottom up.


Henry 06.26.12 at 1:21 am

Aaron – all guesswork – but since I know you and Chris, it wasn’t wildly difficult to figure out the likely points of agreement and of tension.

David Kaib – I think there are two levels here. On one, I think Lessig makes a very reasonable point against the people who suggest that funding has no influence on policy – that the apparent absence of evidence may be evidence of selection bias, and the important things may be happening a stage further back in the process. On the other, I think that the counterargument from Baumgartner et al. also has some legs – that the absence of an apparent relationship points backwards both to the fact that the rich have largely made the status quo (and don’t need to change it), and to more structural ways in which rich people can exercise political influence. Here, the implicit argument that one could draw out is that Lessig too is missing out on a lot – that pay-to-play is a symptom rather than a cause, and that it doesn’t explain all the political ills he claims it does. I’m inclined towards the latter rather than the former for a variety of reasons – but all of this is an argument about non-measurables (we don’t have the data yet, ‘cos no-one really studies American political economy).


Marcus Pivato 06.26.12 at 12:29 pm

“After all, if the status quo reflects a rough equilibrium of power, … then changes to the equilibrium should reflect only changes to the mobilization of these interests. In the short term, such changes are likely to be random.”

…. This further implies that the ‘striking at the root’ that Lessig would like to see should involve striking at economic equality, which is the root of the problem, rather than sleazy relationships between politicians and funders, which are merely a symptom. One can’t change the equilibrium without changing the equilibrium.

The idea that we are “already” in political equilibrium an elegant explanation for why it is difficult to find strong empirical evidence for the influence of money on politics. However, this does not imply that Lessig’s proposed reforms are useless. The ability to influence legislation through funding and lobbying is one of the tools that the wealthy use to maintain the current equilibrium. If you take away this tool, then the equilibrium may shift.

Indeed, there seems to be a chicken-and-egg problem here. If I understand your argument correctly, you are saying that the disproportionate influence of the wealthy on the political system is a consequence of extreme wealth inequality. Yet one could also argue that current levels of extreme wealth inequality is partly a consequence of the disproportionate influence of the wealthy on the political system. So if one wants to move towards a more egalitarian wealth distribution, one must first weaken the grip of the wealthy on the political process. I would say that Lessig’s proposals are necessary (albeit not sufficient) to achieve this goal.


Marcus Pivato 06.26.12 at 12:31 pm

Damn. The second paragraph should be part of the blockquote in the previous post.


purple 06.26.12 at 12:54 pm

You don’t get to be wealthy without being a ruthless scumbag. If you put the fear of God (or, expropriation) in them then they will budge, otherwise, forget it.

And history shows this repeatedly.


mpowell 06.26.12 at 3:32 pm

There is still an interesting question of whether funding reform is more important than policy related to income inequality since you do have to sometimes choose between these when considering candidates or legislative agendas to support. I’d have to go with reform since I don’t see any path forward on the inequality front for now. My preferred inequality addressing policy is monetary and financial stimulus until we are back at 5% unemployment.


otto 06.26.12 at 4:11 pm

To what extent does Lessig (or even Hayes etc) write about the role of money in politics affecting US foreign policy (invasion of Iraq etc)? or do they only write about domestic politics?


Eric Pohley 06.27.12 at 4:05 am

Examine the objective purposes of Strategic Socioeconomic Solutions
relative to community-based ,bottom-up socially responsible investment
Change in the perception and understanding of the role investment can and
should play in our communities is both viable and sustainable if we organize
effectively vis a vis Lessig’s premises.


homunq 06.27.12 at 5:10 am

Lessig correctly sees that making rules against money isn’t working and that closing that barn door probably wouldn’t work even if we could (because people would find and widen the cracks). So he wants to flood the system with public money, using a rather clever voucher program.

I think that he – like just about everyone else in this debate – is missing another deep “root” at which to strike: the voting system. Duverger’s “law” says that plurality voting almost inevitably leads to two-party duopoly, as voters eschew “wasting their vote” on third-party candidates. Just as a commercial monopoly leads to poor service and high prices, a political one has out-of-touch politicians who take a higher “price” in corruption. (Or, in the terms of this post: with more than two parties, it will be harder for donors to keep c, d, and e off the policy menu.)

This is eminently solvable. Approval voting gives far better results, and it’s even arguably a simpler counting rule than plurality; you simply count all the votes, instead of throwing away “overvotes”. And it would almost certainly allow more options than plurality; though real political uses are thin (internal use in parties is about the best it gets),both logical and empirical results show that, whether the voters are “homo economicus” or “homo sapiens”, they can use approval to better find the true center of the voting distribution (which rarely coincides with the Obama/Broder/Friedman “center”) than with plurality.

Why don’t people look to voting reform as a possible, though partial, solution? Partly because it’s indirect; but then again, here we are discussing Lessig’s fundamentally-indirect plan, and “count all the votes” is a lot less controversial and harder to get wrong than a giant new “welfare for politicians” program. Partly because a lot of people don’t understand the math; even many mathematicians don’t really understand Arrow’s theorem, and think it says something far more discouraging than it does about the prospects for improvement.

I’ve seen Lessig respond to questions along this line (on youtube, or at my dad’s Harvard reunion), and he always says “yes, that’s nice, but we have to do it after we fix money in politics.” Until reading this review, I always thought that he just said that because he’s in love with his own solution. Now I see the connection to his experience with copyright activism; he thinks nothing can get on the menu without either money or extremely-angry-crowds, and he thinks that “corruption” draws a bigger crowd than “two-party dictatorship”. He may be right; but on the other hand, there is also more of a built-in, powerful opposition to reworking money in politics: the people whose living that is. And as much as Lessig argues that fixing money would make voting reform easier, one could argue that that’s just as true the other way around. The clear answer is to push for both together… especially if we’re talking about a one-shot deliberative-polling constitutional convention (a ¡great! idea).


Jameson Quinn 06.27.12 at 5:12 am

(commenting as myself, so that my cookie won’t keep remembering that old handle)


SamChevre 06.27.12 at 2:50 pm

I continue to think that any discussion of political power and political decisions is significantly limited by the fact that the Progressive movement, and progressive movements since (the Civil Rights movement especially), have successfully “sought to replace … politics .. with … bureaucratic norms…”. As a result, very few of today’s hot-button political issues are truly political in the sense that there is anything to vote on–they are fundamentally about how courts and administrative agencies will use broadly defined powers, over which there is effectively no democratic control.

The ideal of cognitive democracy, and of the proteletariat as a revolutionary class, has a similar problem; if the significant decisions aren’t up for a vote, it’s changing what can be voted on–not changing who pays for the ads–that will enable that. If the immediate response to “how about elected school boards decide X fro their own school system” is to quote Twain’s “first God made idiots…”, then actual democracy isn’t really the goal.


Jameson Quinn 06.27.12 at 5:55 pm

@SamChevre: exactly. Tinkering with how the two viable candidates fund their campaigns is not really the way to change what options make it onto the table. What we need is a system where more than two candidates can be viable, and that means approval voting and/or proportional representation. Or Majority Judgment, SODA voting, Condorcet, or Range. Or even, in a pinch, IRV. But certainly not plurality.


Jameson Quinn 06.27.12 at 5:56 pm

Just testing out the acronym tag:

SODA voting


David Kaib 06.27.12 at 6:24 pm

Changing the system of voting, on its own, won’t make more candidates viable, if they don’t have the financial means to mount a serious campaign.


SamChevre 06.27.12 at 6:28 pm

What we need is a system where more than two candidates can be viable

I don’t think it matters how many candidates are viable, if the decisions are made by someone other than the selected candidate. (Such as a bureaucrat or judge.)


Bill Barnes 06.27.12 at 7:40 pm

Re the importance of class structural power in pre-cooking the agenda vrs influence over elections and the policy choices made by elected officials, go back to C. Wright Mills and William Domhoff vrs Robert Dahl and mainstream pluralist political science, then to the decisive intervention by Bachrach & Baratz (“Two Faces of Power”), and then to how that set the stage for people (including on the right) to start reading Gramsci — unfortunately largely derailed (by late 20th century events) into little-read vulgar or identity-politics interpretations — but see Jim Scott’s Weapons of the Weak for stimulating discussion, where Jim is himself closer to the better-Gramsci than he understands. As to what might break the equilibrium/system open to radical change — it’s coming, in the form of the complete inability of existing master institutions and discourses to face up to, much less cope with, the near-term (20-30 years) consequences of climate change. The question is: will a realistic and effective counter-hegemonic movement have been built in the meantime, so as to be on the scene to step up to the plate when the shit begins hitting the fan big-time.


Jameson Quinn 06.27.12 at 10:11 pm

@Kaib Just changing the voting system will remove the arbitrary limit that at most two candidates can be viable in any race (with rare and unstable exceptions). This will slightly reduce the need for early money in order to prove that you have what it takes to be one of those two. It will also allow the possibility for someone to come from behind. It will not magically mean that there are three viable candidates in every race; in fact, most races will probably still have 1 or 2 viable candidates. But that will be “most” like 70%, not 99.7%.

@Chevre: right, but the position of “lets take that decision out of the hands of the bureaucrat/judge” will at least have a chance to make a run. (I know that if it’s “judge” then there are issues, but as the anti-abortion people have decisively shown, even if your goal has been explicitly ruled unconstitutional, you can still craft legislation that brings you closer to that goal.)

@Barnes: Is anyone ready to step up to the plate? I myself see the shit arcing towards the fan, but damned if I will have anything useful to say when it does. I mean, I’ll be sure to say “I told you so”, but that’s not actually useful. And from Krugman to Chomsky to Albert (the ParEcon guy) to even McKibben, I don’t see that anyone on the left will be able to say very much more. Lovins… well, possibly.


Bill Barnes 06.28.12 at 12:30 am

Jameson — Take a look at Naomi Klein’s cover article in the late Nov 2011 issue of The Nation, and Barnes & Gilman, “Green Social Democracy or Barbarism: Climate Change and the End of High Modernism,” C. Calhoun & G. Derluguian, eds., The Deepening Crisis: Governance Challenges after Neoliberalism, NYU Press, 2011. Anyone who wants a PDF, let me know at barneswab@aol.com.

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