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CHAPTER 1
CONGRESS
In the fall of 2014, a protest broke out across Hong Kong, led by students at first, and eventually joined by their parents. The protest challenged a law that the Chinese government had proposed for regulating the elections China had promised for Hong Kong's "chief executive." At the time Britain handed back control over the colony to China, it negotiated a commitment that China would give the people of Hong Kong "a high degree of autonomy" and basic human rights. In August 2014, China explained how it would live up to that commitment.
The explanation was not promising — at least for an ordinary conception of what a democracy should be. As Beijing described it, "The ultimate aim is the selection of a Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." That "nominating committee" would be composed of 1,200 citizens — which means, in a population of about 7 million, about .02% of Hong Kong. It would then select the candidates for whom Hong Kong would get to vote.
Hong Kong's "democracy" would come in two steps. In the first, the nominating committee (.02%) selects candidates. In the second, the voters select among the candidates the nominating committee had picked. To be able to run in the second stage, you had to do well in the first stage. Thus, to do well in the first stage required making the members of the nominating committee happy.
This structure triggered the strike that brought the city to a standstill. The nominators, the protesters believed, would be "dominated by a pro-Beijing business and political elite." That domination would bias and therefore corrupt the selection process. Hong Kong wanted a democracy, not, as Martin Lee, the chairman of the Hong Kong Democratic Party, put it, "democracy with Chinese characteristics."
It's not hard to see the problem that angered those Hong Kong protesters. If there's an ideal within the concept of democracy, it is that citizens are equal. That principle either means that at each stage of a democratic election, citizens should have equal weight in the decision of that stage. Or, less restrictively, that at each stage there should be no inequality imposed for an improper reason. What is "proper" or "improper" will differ, of course, depending on the tradition or context. But the principle is fundamental, if the regime is to be democratic.
That principle, the protesters charged, had been violated by the scheme that China had announced. The nominating committee, they believed, would be a filter. And that filter would be biased, either because it would have the wrong loyalty (to China, rather than Hong Kong), or because it would be non-representative (representing not "the people" but a "business and political elite"). Either way, it would breach the "equal weight principle" embedded in the idea of democratic representation. Either way, it would justify the charge that the people of Hong Kong were going to be denied a properly democratic procedure for electing their governor.
If this indeed is a distortion of democracy, China didn't invent it. Caesar Augustus probably did, and many others copied him afterwards — from Iran (where twelve members of the Guardian Counsel select the candidates that voters get to select among) to the Soviet Union (where nineteen members of the Politburo selected the candidates that voters selected among). This structure is common in what we're likely to view as fake democracies. It is an obvious way to defeat the ideal of citizen equality within any democratic regime.
And it has lived in America too. Consider the quip of Tammany Hall's William M. "Boss" Tweed: "I don't care who does the electing, so long as I get to do the nominating."
Tweed is describing a democracy with "Chinese characteristics," too: A two-stage process, in which Tweed controls the first stage. That control means the first stage is not representative. Candidates wishing to pass that first stage know they must make Tweed happy, and Tweed, we might presume, is not the perfect representative of the population meant to be governed. That control thus narrows the range of candidates who can run — relative to the range a representative body might have selected. Such control disciplines them. It distorts the democratic process.
We can call any n-stage process for electing representatives "Tweedist" if, at any critical stage, candidates are improperly dependent on a body that, of necessity, is not representative of the population being governed. "Improperly" because, of course, any primary will be dependent upon one slice of the population to be governed, but that filter is normal within any party system. And "of necessity," because we couldn't practice democracy practically if the validity of every election turned upon whether a representative public turned out. Instead the question is whether an imposed filter actually blocks, not whether the public engages. Hong Kong's nominating committee blocks; in America's mid-term elections, the public typically fails to engage.
So defined, it follows that not all small selecting bodies are in this sense Tweedist. If Hong Kong designed the nominating committee the way Professor James Fishkin describes a "deliberative poll" — with a randomly selected and representative body of citizens — the first stage would be small but not unrepresentative. Yet few small bodies are selected with the discipline of Fishkin's deliberative poll. Certainly, Hong Kong's was not. Instead, the bias of the Tweedist system flows from the unrepresentativeness of the nominating committee.
There are many examples of Tweedism across the history of the United States, though none more striking than the history of democracy in America's Old South. Though America was committed, through its Constitution, at least circa 1870, to secure to all (males at least) the right to vote regardless of race, for almost a hundred years after that commitment, African Americans were routinely excluded from the right to vote. Through a wide range of practices, including literacy tests, grandfather clauses, poll taxes, and complex registration systems, whites throughout the South succeeded in excluding blacks from voting. Yet none of these schemes was as transparently Tweedist as the all-white primary.
Practiced in many states, but in none more brazenly than Texas, the all-white primary explicitly excluded African Americans from voting in the Democratic primary, at first by law and eventually, effectively, through informal practice. Blacks were not necessarily forbidden from voting in the general election. But as the Democratic Party was the only party that mattered across the Old South, that formal fact meant little practically. Instead, so long as blacks were excluded from the first stage of this democratic process, the effect of Tweedism would be felt throughout the process. It may well be that blacks had ultimate influence over elected officials — since, in some cases at least, they could participate in the general election. That ultimate participation, however, could not cure the exclusion from the initial stage of the process.
The white primary is thus an obvious example of Tweedism. Its bias was race. Race is obviously (to us, at least) an illegitimate reason to effect inequality. Thus, even under the weaker standard of no inequality imposed for an improper reason described at the start of this chapter, the white primary fails. The consequence of the white primary is the same as the consequence from Tweedism generally: a democracy responsive to whites — and maybe to whites only.
But it is a second clear example of Tweedism that is the focus of this chapter — an example that is quite common in America, if not across the world.
We take it for granted in America that campaigns will be privately funded. Candidates raise the money for their campaigns. Candidates are only credible if they raise a sufficiently large amount of money for their campaigns. The funding process is thus a kind of nominating process — call it the Greenback Primary — with the funders as the nominators. So again, the funding is part of an n-stage process, with the funders dominating the first stage.
Members of Congress and candidates for Congress spend a great deal of time — academic estimates range anywhere from 30% to 70% — courting these funders. As they do so, members and candidates become sensitive to the needs of these funders. The funders effectively do the nominating; the candidates need that nomination.
Who are these funders? A very small number of Americans give a very large percentage of the political contributions that fund America's campaigns. In 2014, the top 100 contributors gave as much as the bottom 4.75 million. As of February 2016, the top 50 SuperPAC contributors had given nearly half the money received by all SuperPACs.
But even if we looked beyond the biggest contributors, there's still a tiny number who gave the largest direct contribution permitted to even one representative. In 2014, just 57,864 gave the equivalent of $5,200 (the maximum across both the primary and general election cycles). That number is extraordinarily small. Indeed, we could say that it's Hong Kong small — because the percentage of Americans voting in the Greenback Primary is the same as that of Hong Kongese voting in the nominating committee: .02%.
A tiny fraction of Americans thus dominates the first stage of America's two-stage election process, just as a tiny fraction of Hong Kongese dominate the first stage in Hong Kong. That process is thus a kind of primary. To run for Congress in America, you must do well not in a "white primary" but in this Greenback Primary. And to do well, you must please the tiny, unrepresentative slice of America that funds America's political campaigns. The vast majority of voters are thus effectively, and necessarily, excluded — not ultimately, but in the first stage. Everyone has the right to vote, of course, so, as the Supreme Court said in Citizens United, "The people have the ultimate influence over elected officials." But that "ultimate influence" does not negate the effect of the interim influence. The funders — the Tweeds in this example — can have their way, even if the people have the ultimate vote. That was Boss Tweed's insight.
The consequence of this Tweedism — like the Tweedism in Hong Kong and in the Old South — is a democracy responsive to the Tweeds: the funders of campaigns. We'll consider the evidence about the consequences of that claim below. But for now, my aim is simply to identify its form. Here again, there is a filter — not a filter based on race, but one based on money. Against the background of our tradition, a filter based on wealth should be as illegitimate as a filter based on race. James Madison, in explaining the nature of the Constitution that he was asking America to ratify, described a branch of our government — then the House — that would be "dependent on the people alone." But to clarify that dependence, he went on to explain that by "the people," he meant "not the rich more than the poor." The Tweedism of the modern campaign finance system is plainly a system that give power to "the rich more than the poor."
Tweedism thus describes the mechanism by which bias is introduced into our democracy. But in what way is that a "corruption"?
Corruption
There's a conception of corruption that's quite familiar to us. It's a conception of evil, of a corrupted soul. Laura Underkuffler captures this sense well in her extraordinary book, Captured by Evil: "Corruption ... confers a status. A person, when corrupt, has changed. Evil has captured her being, her essence, her soul." "It is a searing indictment not only of A's act but also of A's character. ... It is a statement not only of what A has done but also of what A has become."
Like calling someone a racist, or a sexist, calling someone corrupt is extreme condemnation. There's no subtlety in the charge. There's no room for understanding. There's simple black and white, right and wrong. "Corruption" is on the side of wrong.
But this is not the only sense of the term corruption, for it is not just individuals that are corrupt. Sometimes things are corrupt. Data on a computer, for example, can be "corrupted." That's not a moral issue; it's a technical flaw.
And likewise, and at the core of the argument of this book, it's not just individuals as individuals that are corrupt. Sometimes we predicate corrupt of groups of individuals. And sometimes, and this is the focus of this book, we predicate corrupt of institutions.
When we speak of corrupt institutions, only sometimes do we mean that an institution is filled with corrupt individuals. Sometimes it is, and sometimes that's precisely what we mean. When the FBI indicted FIFA (the international soccer association), for example, it seemed pretty clear that the organization was filled with people who engaged knowingly in corrupt behavior.
But at least sometimes, when we say that an institution is corrupt, we mean something quite different. Indeed, in the sense of corruption that I mean to introduce here, we could imagine an institution that is corrupt even if no one within that institution was also corrupt. Individual corruption, in this sense, is neither necessary nor sufficient to establish the corruption of an institution. As Jay Cost puts it, this is "corruption from an institutional perspective, rather than an ethical one. [It is] not ... as a consequence of too many bad guys and not enough good guys, but rather of structural defects in the constitutional regime itself."
This is the sense in which our Congress is corrupt. As I describe more carefully in the balance of this chapter, it is possible — and, for my purposes, I assume that this possibility is also a reality — that our Congress is corrupt as an institution, while none of the members of Congress is corrupt individually. That's a hard statement for many to accept, because so many are convinced of the bad will of at least some in Congress. But I'm in the fortunate position of actually believing both (1) that practically no one in Congress is corrupt in Underkuffler's sense of the term, but (2) that the institution as a whole plainly is.
This sense of the term corruption may seem unfamiliar to us. Yet it grows out of a long history of thinking about the corruption of institutions as distinct from the corruption of individuals. As Lisa Hill has described, our modern sense of corruption is different from the sense that was common in the eighteenth century. In this older sense, corruption was not just what you said about an individual. It is also what you could say about the "body politic." As she describes it, "Until the end of the eighteenth century, 'corruption' had a much broader meaning than it does today; it referred less to the actions of individuals than to the general moral health of the body politic ..."
It was in this different sense that the framers of our Constitution also used the term. Using a database of founding-era documents, two researchers working with me collected all the instances of the use of the idea of corruption. They then coded those uses to determine the aggregate sense in which the word was being deployed. Of the 325 instances that they identified, talk of corruption by individuals was relatively rare. "Quid pro quo" corruption was only ever predicated of individuals and only referred to 6 times, or 1.8%. Much more common was talk of institutions (57%). And among those cases, the most common were cases speaking of the "improper dependence" of public institutions.
The corruption of the British Parliament is an easy example. The framers believed the British Parliament was "corrupt." Yet that belief did not depend upon believing that individuals in Parliament were taking bribes. They may or may not have been. (John Dickinson thought there was "not a borough in England in which [bribery] is not practiced," and Sir John Eardley Eardley-Wilmot could find just one in which it was punished.) Yet bribery was irrelevant to the sense in which the framers were using the term. Rather, Parliament was "corrupt" because the king had an improper influence over Parliament. Through the "rotten boroughs" — electoral districts that were so small that a handful could control who was elected representative — the king could effectively pick Members of Parliament (MPs). Those MPs thus "depended" upon him, and not the public. That dependence, in turn, was "improper" for a representative body, which the Commons was meant to be. In this sense, then, Parliament was "corrupt."
The link that our framers perceived between improper dependence and corruption has been noted by others. Zephyr Teachout, for example, in her extraordinary book, Corruption in America, writes both that the "framers rarely attached corruption to individuals separate from their institutions" and that "the language of dependence and corruption was so intertwined at the founding that in some cases, corruption and independence could sound like opposites."
In this sense, to be corrupt is to be systemically responsive to the wrong influence. More precisely, it is to be systematically responsive to an influence other than the influence intended. That wrong influence can produce a wrong dependence. That wrong dependence is the corruption.
(Continues…)
Excerpted from "America, Compromised"
by .
Copyright © 2018 Lawrence Lessig.
Excerpted by permission of The University of Chicago Press.
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