How the Founders Failed
The Constitution's Framers aimed to stem the corruption that threatened democracy, but crony capitalism rules government today.
Courtesy Lawrence Lessig
By Lawrence Lessig
Fourteen years ago, a professor of math at Lynchburg University discovered a flaw in the code of the Pentium chip that meant there was a certain probability of error—a chance Intel calculated was something like one in 360 billion. Intel estimated that if you ran a spreadsheet for 27,000 years you might hit it once. Of course, America was not going to stand by quietly; there was an extraordinary outrage. People rose up and demanded, fix the flaw, Intel! And Intel in the first year had to spend close to half a billion dollars answering the demand to fix the flaw.
Now, what happens when there are flaws in the code of the operating system of the central machine of democracy? What happens when [the Constitution] misfires? How do we respond? If we're going to have a revolution to protect a spreadsheet, what do we do to defend democracy?
People will say that's different: issues in a spreadsheet are either right or wrong, but government questions aren't right or wrong—there are lots of hard, conflicting issues. They're right; but not all questions the government faces are hard questions. There are easy cases, two-plus-two-equals-four kinds of questions. How does our operating system handle them?
Maybe the most profound [case is] global warming. We have all come to recognize the extraordinary danger global warming presents, but there has long been a consensus about this danger. The debate is over. There are five points in the consensus: global warming is real; we human beings are mainly responsible; the consequences are bad; we need to fix it quickly; and it's not too late.
[There was] a study to evaluate how well that consensus was actually adopted by people who know something about the matter. They took a random sample of 1,000 articles in peer-reviewed journals between 1993 and 2003 and discovered that 0 percent questioned the basic assumptions. Then they did a comparable study of 600 articles in popular media journals between 1988 and 2002. They found that 53 percent questioned the basic consensus.
That result is the product of the junk science that's been funded by the oil industry to make people think that two and two might be five under some circumstances—leading to the extraordinary delay that our government has allowed, maybe 10 years, before we address perhaps the most important public policy question our generations will face.
The Framers of our Constitution were obsessed with the idea of independence, by which I don't mean the independence of 1776. I mean the independence that was at the center of their attention in 1785, the moment when every sane thinker recognized America was a failure. When they recognized that the extraordinary corruption that had spread through state governments, that could not be checked by the federal government, was destroying democracy. And they looked to the lack of independence in representatives as the cause of this extraordinary corruption. They looked at the dependence of representatives upon interests other than the people.
As Jefferson described dependency, “It begets subservience and venality, suffocates the germ of virtue and prepares fit tools for the designs of ambition.” [The Framers] saw this was what government had become and they sought independent representatives who could find the right answers for the right reasons to questions government faced. And it was their common aim to build institutions, to build constitutions, against that dependence.
It's not very PC to say, but let's say it: they failed. Many who went to government were drawn for the most venal of reasons. Corruption was at the center of government throughout the country for most of our history—much worse than anything we've ever seen.
Daniel Webster, who served in Congress when Congress was considering whether or how to regulate the Bank of the United States, was paid by the Bank of the United States. He wrote to the Bank: “If it be wished that my relation to the bank be continued, it may be well to send me the usual retainers.”
Bribery was not even a crime in Congress until 1853. The 19th century was a cesspool of corruption, and not just among politicians. In many jurisdictions around the country, up to 25 percent of voters sold their vote. So there's no golden past here.
But here's the paradox: Even though from an individual perspective we're much better today than we've ever been, this problem is much worse for the nation. That's because government is more significant today than it has ever been. It's more critical to core national problems like health care and global warming. But it's more pervasive; its fingers are everywhere.
Increasingly businesses realize the government is a tool of competition. The return from good regulation turns out to be higher than the return from good competition, and so there's an explosion in the influence game. The number of lobbyists in Washington has doubled since 2000; the cost of them has doubled as well. As the former chief lobbyist for President Clinton put it, people in industry are willing to invest money because they see opportunities here.
The public sees them, too. Public skepticism about Congress has never been higher, and respect for Congress has never been lower. When I toyed with the idea of running for Congress in an open seat in my California district, we did some polling that discovered 88 percent of voters [there] believe that money buys results. Nationally, 19 percent have a favorable view of our Congress. The People's House is not.
This is exactly the dependency our Framers were worried about. This is not the dependency Madison worried about. Madison spoke often [in the way] Ronald Reagan spoke in 1965: “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves largesse out of the public treasury. From that moment on, the majority always votes for the candidate promising the most benefits from the treasury, with the result that democracy always collapses over loose fiscal policy.”
But what Madison and Reagan missed is, the problem we face isn't the masses rising up and stealing from the rich; it is the powerful using their power to capture government. And so long as there is private funding of public elections, that capture will continue. Crony capitalism is at the core of our Constitution today, a subtle form of corruption by “good” people. Deadly for democracy.
We need a good way to figure out how to address and make understandable these ideas of corruption and dependency and betrayal. That's why we launched Change Congress, a bipartisan reform movement designed to leverage reform work of others working substantively in this field for generations, taking a cluster of issues—money, representation issues, integrity—and using the extraordinary new tools that could drive reform in this case.
We ask people, both citizens and candidates, to pledge a commitment to basic ideas of reform: 1) not accept money from lobbyists or political action committees; 2) [support] a fundamental reform of earmarks; 3) support public finance of public elections; 4) support an increase in transparency in how Congress functions.
The flaw at the core of the People's House is dependency. Think of the dynamic of the dependency of an alcoholic. The alcoholic may be losing his family, his job, his liver, but we all know he will not solve any of those problems unless he solves his alcoholism first. It's not that alcoholism is the most important problem; it's just the first problem he needs to solve if he is to solve the rest.
There is no end to the problems that we as a nation face—from global warming to Iraq to the economy to media reform to education to broadband growth, even to copyright—but we will not address these problems sensibly until we solve this first problem: our own alcoholism, our own dependency on the way money has corrupted this government.
LAWRENCE LESSIG, the C. Wendell and Edith M. Carlsmith Professor of Law, spoke in June at the National Conference for Media Reform 2008. This is an edited excerpt.
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