Lawrence Lessig inaugurates the Berlin Family Lectures with a study of institutional corruption.
Boss Tweed’s vision of democracy went like this: “I don’t care who does the electing,” said the 19th-century Tammany Hall patron saint of patronage, “as long as I get to do the nominating.”
Any electoral process that grants disproportionate power to individuals or groups in selecting candidates, Harvard law professor Lawrence Lessig said, is exclusionary by definition. Even if, as the Supreme Court said in the 2010 Citizens United ruling that eased restrictions on campaign donations, “the people have the ultimate influence over elected officials” at the ballot box.
The people do retain that ultimate influence, Lessig allowed. We can go to the polls on Election Day and cast a vote with the same weight as everyone else’s. But he argued that the candidates over whom voters exercise their influence emerge from a system biased toward the moneyed few. Only after the neo-Tweeds have done the nominating, in other words, can the people do the electing.
Delivering the inaugural Randy L. and Melvin R. Berlin Family Lectures over five weeks this past fall, Lessig called that phenomenon “Tweedism” and outlined its disenfranchising effects, from the whites-only primaries of the Old South to Chinese political impositions in contemporary Hong Kong. Private, unfettered campaign funding has the same pernicious effect on modern American democracy, he said, creating a de facto primary before a single vote is cast.
This feature of the system forces members of Congress to spend between 30 and 70 percent of their time raising money for reelection—and the fundraising race has become the most prescient predictor of electoral success. “In 94 percent of the cases, the candidate with the most money wins,” he noted. “This is the picture of democracy in America: the majority is now excluded from a critical first step.”
Lessig estimated the relevant funders of campaigns amount to about .05 percent of the population, or 150,000 people, “which, as the internet tells me, is the same number of people as are named Lester in the United States.” Now that the Supreme Court’s 2014 McCutcheon decision has removed limits on aggregate donations to candidates, he expects that number to fall to about 35,000, “which turns out to be about the same number of people as are named Sheldon in the United States.”
Those Lesters and Sheldons, then, become the voices that elected officials hear, and they govern accordingly. This is not, Lessig emphasized, blatantly illicit quid pro quo bribery. It’s institutional. He called it “dependence corruption,” a form baked into the system that is not illegal or even necessarily unethical, but antithetical, in his eyes, to true democratic self-government.
Similar corrupting influences extend far beyond politics. In five Berlin Family Lectures, called America: Compromised, Lessig focused on institutional corruption in politics, finance, media, and academia, concluding with his prescribed remedies. He defined institutional corruption as “influence, within an economy of influence, that weakens the effectiveness of an institution, especially by weakening public trust of that institution.”
In finance, for example, he cited a defanged regulatory system as the corrupting influence. After the 1933 passage of the Glass-Steagall Act separating banking and investment functions, for decades there were almost no US bank failures. Deregulation allowed those functions to coexist again, and bank failures steadily increased to pre-Glass-Steagall levels.
Without that restriction, Lessig said, banks were untethered in their pursuit of profit, to the financial system’s—and to society’s—detriment. The banks did what would be expected of them in the absence of a regulatory firewall. Even those initially reluctant to engage in mortgage-backed securities out of concern for the risk, for example, eventually entered the market as the balance sheets of competitors swelled.
Lessig quoted federal judge and Law School senior lecturer Richard Posner’s assessment to sum up his own: “Am I saying that deregulation made bankers and through them borrowers take risks that were excessive from an overall social standpoint? Yes.”
In the media industry, Lessig blamed the market itself and the professional evolution of journalism for the corruption he sees. The drafters of the Constitution, he said, expected the free press that they envisioned would keep the public informed of important issues and would be both heavily partisan and heavily subsidized.
Partisan publications distributed around the country at little or no cost would be primary sources of substantive thought on the issues of the day. They would inform citizens of the parties’ positions. Now an ethic of objective reporting, developed to establish the credibility of for-profit newspapers and magazines, has long since replaced the founding vision.
Professional objectivity and corporate ownership, Lessig argued, have created a media environment that values the so-called horse race news of campaign strategy and polling data over detailed reporting on issues. Even partisan outlets engage in it because the research and the revenue bear out the approach. Stanford’s Kyu Hahn and Shanto Iyengar found that voters consider “any aspect” of the political maneuvering more interesting than coverage of issues.
The commercial inducement of that interest dovetails with the professional commitment to be—or, at least, to appear to be—unbiased. “The point is,” Lessig said, “to seem nonpartisan is simplest when you engage in … the horse race reporting, the scandal reporting, the he-said-she-said reporting.”
An obligation to be objective is also embedded in academic research, but Lessig described how subtle influences can corrupt it as well. Studies have shown that the results of ostensibly unbiased researchers drift in favor of their funding sources. And even scholars aware of empirical data that shows people are incapable of avoiding such conflicts of interest still believe that they do avoid them—like teenagers, Lessig said, who feel certain that three beers do not impair their driving.
Research from behavioral psychology and ethics suggests that there are limits to the human capacity to pursue civic virtue over financial gain. Hardwiring born of the brain’s evolutionary development defines the response to incentives.
Humility about human nature, Lessig added, should compel the development of systems that put corrupting temptations beyond reach. “It’s not a matter of willing ourselves to resist them,” he said, “we need to structure ourselves to avoid them.”
He offered several ways to do that in the final lecture—mechanisms for campaign funding, in particular—and critiqued others. To conclude, he turned the finger he had pointed at corrupt institutions toward himself and his audience. “Whatever guilt I’ve shown you in them,” Lessig said, “is true of us too.”
Any sense of moral superiority his previous lectures had instilled, he sought to puncture. “The most outrageous part to this story is that these corruptions, primed by the most privileged, have been permitted by the passivity of the privileged as well,” he said. “Permitted.”
Human nature can be blamed for that too. Lessig cited the “bystander effect,” which says that the more people there are in proximity to someone in need, the less likely it is that anyone will help. Although that might explain the cynical acceptance of corruption among citizens who feel powerless to prevent it, he rejected the excuse.
“There are no bystanders here,” Lessig said. “There is only us, the victims and the perpetrators.”
Lawrence Lessig explores the concept of "institutional corruption" using the paradigm case: Congress.