How’s that for a drearily literal title? I am an admirer of Lawrence Lessig work on free culture, despite my gentle disagreements on the specifics of net neutrality. The Future of Ideas was an essential part of my post-college self-education, and I’m very grateful for that. I also profited from Free Culture, pitched at a wider audience. When I first heard that Lessig was interested in running for Congress, I actually took part in a conference call or two, sensing that while a conservative couldn’t get elected in his Silicon Valley congressional district, he would at the very least bring valuable perspective to debates on copyright and related issues.

But I’ve been disappointed by Lessig’s recent work on campaign finance regulation and institutional corruption. In an essay for the Boston Review, Lessig makes his case against institutional corruption:

Bribes are thus instances of personal corruption. They are regulable because we presume they corrupt legislators by distracting them from their proper focus—on legislation that serves the public interest.
Institutional corruption brings this same concern to the level of the legislature. If a legislature can regulate to keep individual legislators from making decisions that are dependent upon venal rather than public interests, why can’t it regulate to keep the legislature as a whole from making decisions based on improper dependencies? If it can act to assure that individual legislators don’t act, or seem to act, on an obviously improper dependency, why can’t it act to assure that the legislature itself not act, or seem to act, on a different, but equally improper, dependency?
A dependency, for example, upon funders rather than voters. If the framers were clear that legislators are to be dependent only on the people, is it permissible for a legislature to protect itself from other dependencies? Kennedy has not shown why not.
In short, bribery is regulable because it manifests personal corruption, the deviation from a public to a venal interest. Yet Kennedy has offered no argument as to why acts that constitute institutional corruption shouldn’t likewise be regulable, as manifesting, improperly, a dependency upon funders rather than upon voters.

Part of the problem is Lessig’s understanding of the nature of dependency. Legislators depend on informational subsidies, as political scientists Robert L. Hall and Alan V. Deardorff argued in “Lobbying as Legislative Subsidy” [PDF], published in the American Political Science Review. From the Abstract:

Professional lobbyists are among the most experienced, knowledgeable, and strategic actors one can find in the everyday practice of politics. Nonetheless, their behavioral patterns often appear anomalous when viewed in the light of existing theories. We revisit these anomalies in search of an alternative theory. We model lobbying not as exchange (vote buying) or persuasion (informative signaling) but as a form of legislative subsidy—–a matching grant of policy information, political intelli- gence, and legislative labor to the enterprises of strategically selected legislators. The proximate political objective of this strategy is not to change legislators’ minds but to assist natural allies in achieving their own, coincident objectives. The theory is simple in form, realistic in its principal assumptions, and counterintuitive in its main implications. Empirically, the model renders otherwise anomalous regularities comprehensible and predictable. [Emphasis added.]

That is, the dependencies Lessig decries are complicated. Expertise is unevenly distributed. Regulated industries have a powerful incentive to develop expertise about how the policy environment impacts them, and even the largest, most well-compensated staffers won’t have the same incentives to understand every policy domain that Congress might conceivably regulate. This is at least one reason why scholars like Ilya Somin have called for narrowing the domain of regulatory authority. The representatives of regulated industries thus find themselves in a strong position when major policy changes are being debated. Consider the outsized role of the pharmaceutical industry during the health reform debate. I didn’t like their role, but I can’t imagine that any new regulations would have prevented Big Pharma from influencing members who, for example, represent constituencies in which the pharmaceutical industry is a major employer.

After 1994, when it became clear that control of Congress was being seriously contested by both major parties, we saw an explosion in lobbying activity. The reason is fairly clear: private enterprises have a strong incentive to minimize uncertainty, and lobbying expenditures represent a very crude and ineffective insurance policy against unfavorable regulatory and tax changes. As Baumgartner et al. argue, most of this activity is of an essentially defensive nature.

As we create new campaign finance regulations, the economy of influence doesn’t vanish. Rather, it evolves and, for the most part, grows more opaque. Lessig draws on the work of economists Marcos Chamon and Ethan Kaplan to suggest that the mere threat of large independent expenditures is enough to influence legislative outcomes. And he’s probably right. But of course the existence of partisan media outlets, that, as we’ve discussed, reflects the prejudices of their audiences, represents another “iceberg.” This, however, is an “iceberg” that no one — I hope! — intends to regulate or ban. Lessig fails to offer a convincing reason to curtail the First Amendment of freedoms organized in groups, whether those groups are corporations, labor unions, or Elks Lodges.

Part of Lessig’s argument is that the Supreme Court has been immune to facts, and he coins a clever term — First Amendment Lochnerism:

So long as First Amendment Lochnerism prevails on this Court, so long as Justices are prepared to let their own factual speculations trump legislative fact-finding, and so long as judicial intuitions about the impact of disclosure requirements are permitted to decide the issue, Congress will be unable to address institutional corruption directly by limiting expenditures that create a reality or appearance of unacceptable dependency.

To the great credit of the Boston Review, they invited Will Wilkinson to write a reply to Lessig, titled “Where Is the Evidence?”

In a recent paper, Nathaniel Persily and Kelli Lammie, scholars concerned with political communication, report, “the share of the population describing government as corrupt went down even as soft-money contributions skyrocketed.” Their data—which, on the whole, show that a majority of Americans distrust Congress—indicate that beliefs are unmoored from the facts. Similarly, political scientist David Primo and economist Jeff Milyo find “little impact of state campaign finance laws on perceptions of government.” Elsewhere Primo and Milyo have reported further “evidence that campaign finance laws are unlikely to be an effective means for improving the ‘quality of democracy.’” If Lessig knows something Justice Kennedy doesn’t, he should share.
Moreover, Lessig’s idea that public perceptions can justify the abridgment of a fundamental constitutional right is troubling. Basic constitutional rights are supposed to be protected from the fleeting disposition of the volkgeist—sheltered from that particular economy of influence. The public perception of the relationship between legislation and the people’s will is just one aspect of public opinion among many, and no less likely to be in error. Why should one potentially mistaken aspect of public opinion stand as valid justification for the restriction of the fundamental right to attempt to alter public opinion through speech? This is an especially pertinent question when we consider the real possibility that the sources of speech Lessig wants to ban might improve the quality of political information available to the public, including the quality of information about such things as the dependency of policy on public opinion.
In short, Lessig offers no evidence that the reforms he seeks would have any effect on the distrust he laments. And even if he has some evidence, we should find ways to improve popular trust in democracy other than restricting the liberties that make democracy possible.

I recommend reading both essays.