Sustaining Democracy in a Digital Age

Lawrence Lessig

(Photo credit: easement)

Harvard Law Professor Lawrence Lessig was in North Carolina earlier this week on behalf of Common Cause, a national political reform organization with chapters across the country, to build support for his Change Congress campaign. His work and that of his host organizations in Raleigh illustrate the power and necessity of watchdog institutions to maintain government transparency. At a time of great concern over the fallout of the U.S. Supreme Court's Citizens United decision, Lessig is arguing against what he calls the “pathetic” and “puny” campaign finance reforms laid out in the DISCLOSE Act in favor of the Fair Election Act, a far more aggressive proposal.

Lessig's appearance in Raleigh coincided with a citizen lobbying day organized by the North Carolina Voters for Clean Elections, a coalition of nonprofits and advocacy groups urging voter-owned election reform at the state and municipal level.

University of North Carolina law professor Gene Nichol introduced Lessig by describing his path from clerk to Justice Scalia to intellectual property reformer to campaign finance reform crusader as “meaningful, acute, personal patriotism.” Nichol also grounded Lessig's work to the cause of the day, expressing surprise that an alliance of groups dedicated to reforming the state legislature was allowed to meet in its auditorium. “Maybe they're making a little progress in figuring out who actually owns this building,” he said. Years ago, Nichol recalled the strong opposition he witnessed to a lobbying reform commission he had led. A number of power players in Raleigh professed there were “no problems with money and politics in North Carolina," Nichol said. "No one says that now; most of the ones who said it then are in jail.”

Lessig addressed his presentation to approximately 125 people, including at least three state legislators.

The challenge of Lessig's cause is to make the the connection between a host of societal problems and the insidious persuasion of campaign contributions, to present them not as unfortunate outcomes of the “free market” but of the “intervention of government” at the behest of corporate interests. He presented childhood obesity as a result of sugar tariffs and corn subsidies thanks to agribusiness lobbying from the likes of ADM; the recession as a result of the deregulation of financial instruments thanks to Wall Street lobbying; the current BP oil spill disaster as a result of aggressive lobbying from the oil industry. Pick your issue, he said, and the root cause traces back to the money that flows into Congress.

Much of the content of his speech he credits to Robert Kaiser's 2009 book So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government. For instance, he pointed out that the first draft of President Dwight D. Eisenhower's final presidential address included reference not only to the “military-industrial complex” but the “military-industrial-congressional complex.” Today, he said, quoting Kaiser, Capitol Hill is a “farm league for K Street,” and the idea of not taking money from the industries one regulates “is a naïve choirboy ethic […] Now, it is primarily those you regulate that you raise money from.”

As evidence of the problem, Lessig cited two recent academic articles that use empirical research to document that the big business of strategic lobbying pays off. “Measuring Rates of Return for Lobbying Expenditures: An Empirical Analysis under the American Jobs Creation Act” by Raquel Meyer Alexander, Stephen W. Mazza and Susan Sholz, scholars at the University of Kansas, examined corporate tax records and found a return on investment of $220 for every $1 spent on lobbying for a tax holiday on repatriated earnings. “Lobbying and Taxes” by Brian Kelleher Richter, Krislert Samphantharak and Jeffrey F. Timmons, published in the American Journal of Political Science, found a 1% increase in registered lobbying expenditures appeared to lower effective tax rates by 0.5 to 1.6 percentage points for the average firm.

At one point, when discussing the growing dependency of Congress on fundraising dollars, Lessig clarified, “not money in brown paper bags—I'm not talking about bribery.” There was a titter among the crowd. In North Carolina not long ago, there were several exchanges of cash money. In 2002, then-N.C. House Speaker Jim Black (who is now serving time in federal prison) met lobbyists in the restrooms of restaurants across the state, where he accepted thousands in cash in unmarked envelopes. Black even persuaded then-Republican Rep. Michael Decker to switch parties, with a promise of $50,000, made in the men's room at an International House of Pancakes off Interstate 85.

The Black and Decker affair unraveled thanks to critically important government watchdog institutions: The News & Observer and nonprofit, nonpartisan, political reform group Democracy North Carolina. Subsequent, related campaign finance scandals continue to rock our state government, the latest involving a federal investigation of former governor Mike Easley and several of his political allies.

Lessig's call to adopt citizen-funded elections drew applause from the crowd; public financing is precisely the agenda the NCVCE coalition has pushed, with slow but steady success, for about 10 years. In 2004, the organization succeeded in establishing a public financing system for state judicial candidates; as of this year, there is 100% participation among appellate court candidates.

Current Gov. Bev Perdue has pushed for comprehensive ethics reform. The N.C. Senate passed a package of ethics bills Tuesday, just as Lessig was visiting with voters and members of the clean elections coalition.

NCVCE Executive Director Chase Foster said the ethics package contains campaign finance provisions the coalition supports, including an expansion of public financing for various council of state offices, such as agriculture commissioner, treasurer and labor commissioner. Prominent Republicans oppose the ethics bill's campaign finance provisions. N.C. Rep. Paul “Skip” Stam calls it “a poison pill” and “unconstitutional.”

The package leaves out expansion of voter-owned elections in municipal elections, such as pioneered last year by the Town of Chapel Hill.

“It's this kind of incremental progress, these baby steps toward public financing, that really make a transformed and more participatory democracy possible,” Foster said during an evening reception at a downtown Raleigh bar. There, Lessig was introduced by Duke Law Professor James Boyle, co-founder of Creative Commons, and by Raleigh Mayor Charles Meeker. Lessig again gave his pitch for changing the system at both the state and national level. “I'm convinced if we make a change in North Carolina, we make a change in Connecticut, we can begin to make it possible to make a change in Washington.”

Meanwhile, what of the watchdogs? While The N&O continues to cover the Easley affair, it has cut its newsroom by more than half in the past six years; it merged its capital bureau with that of its former competitor, The Charlotte Observer, after The McClatchy company (which owns The N&O) took on massive debt to purchase the Knight-Ridder chain (which owned the Charlotte paper).

These are hardly the only newspapers to cut their statehouse coverage. Last year, a survey by American Journalism Review found a “staggering loss” of boots on the ground, with only 355 full-time newspaper reporters at state capitols, down 32 percent from 2003; 44 statehouses have fewer full-time reporters than they did six years ago.

Today, most of the cubicles in N.C. General Assembly's pressroom are empty. Fewer eyes on state capitols and fewer eyes on Congress mean the challenge of holding government accountable is more challenging and more urgent than ever before.

(For more on state-level responses to Citizens United, see the Sunlight Foundation's ongoing reports.)

Update 6/24/10: N.C. Senate Majority Leader Martin Nesbitt pulled the public financing provisions from the ethics bill following a robocall campaign by conservative opponents, The N&O reports.