Laws for Sale?

Published March 4, 2010
New York Times Magazine

Plaintiffs’ lawyers must be holding their heads a little higher when they walk into P.T.A. meetings and neighborhood parties these days, knowing that corporate lobbyists have overtaken them as the most despised professionals in America. Lobbyists have never been especially popular, of course; even their most sympathetic pop-culture portrayal, in the book and better-known movie “Thank You for Smoking,” focused mostly on their moral depravity. As a candidate, Barack Obama made a point of vowing to banish them from the White House. (This proved considerably harder to do than it was to say, mostly because it turns out that lobbyists in Washington are like Baathists in Baghdad; if you send them all home, there aren’t enough people left who know anything about running a government.) In the past year, though, antilobbyist fervor has grown even more intense, as hope for a new governing era has given way to frustration with a divided capital and a dysfunctional Congress.

The outrage reached a fever pitch in January when the Supreme Court ruled that a Fortune 500 corporation enjoys the same First Amendment right to influence the political process as the guy who puts a yard sign on his lawn. Responding in The Nation and The Los Angeles Times, the Harvard law professor Lawrence Lessig incited an online furor when he accused President Obama of betraying his fellow liberals by declining to confront the capital’s culture of corporate dependence. “Congress has developed a pathological dependence on campaign cash,” Lessig wrote, blaming moneyed interests for knocking the public option out of the Democratic health care plan. He called for a constitutional convention that would enact the public financing of all campaigns.

If you know some decent people who also happen to be lobbyists, as I do, then it is tempting to defend their honor against such an onslaught — to declare, as Hillary Clinton did at a forum with bloggers in 2007, that “lobbyists are people, too.” You might point out that industry lobbyists weren’t the reason that Democrats in Congress could not get out of their own way long enough to pass health care reform last year; after all, pharmaceutical companies spent something like $100 million in support of the Democratic plan.

But then you read a story about how Toyota spent $25 million on federal lobbying, or how companies like Microsoft and Dell are mobilizing to preserve a tax loophole that diverts $15.5 billion from the federal Treasury, and it’s hard to refute Professor Lessig’s central premise. The truth is that anyone who spends any significant time in the political world knows that corporate money, raised and leveraged by lobbyists, is perverting any notion of good policymaking, as surely as ice dancing perverts the idea of sport.

The problem with Lessig’s indictment and others like it isn’t that they are too hard on lobbyists who try to influence the system. It’s that they’re too easy on the politicians who cave to the pressure. Those who denounce the recent Supreme Court ruling and call for radical reform of the campaign-finance system tend to present a picture of Washington as a modern Gomorrah, in which irresistible temptation lurks around every marble column. If you vote the way some lobbyist wants you to vote on his obscure amendment, you will be rewarded with mountains of cash in your next campaign; if you don’t, that same money may be used to finance a barrage of negative ads against you. How can we expect mere legislators to resist such titanic forces, knowing that a vote against powerful interests might well cost them their seats? If you drain all the fetid money from the system, well-meaning reformers seem to think, then politicians will have no incentive to bow down before corporations, and suddenly they will all behave like the statesmen we would prefer them to be.

The flaw here is that if our senators and congressmen really wanted to be ideal public servants, they wouldn’t need us to protect them from their corporate patrons. Rather, they would simply do what’s right and face the consequences. That is, after all, what most Americans do when our work requires us to choose between our principles and our personal gain. Most of us would sooner leave our jobs than follow orders to defraud clients or falsify records. The guy at the deli counter probably isn’t going to sell you contaminated meat just because his boss orders him to, any more than your electrician is going to risk burning down your house by installing faulty alarms.

Most of the 535 senators and members of Congress do not face moral dilemmas quite this stark (examples of cash changing hands in suitcases are, in fact, exceedingly rare), but they are forced to choose, constantly, between their constituents and their own self-preservation. Is it really so outside the bounds of human nature to expect congressmen to serve the interests of the voters, even when their own re-elections are in jeopardy?

The political system is imperiled mostly because too many of our politicians just can’t seem to imagine any worse fate in life than losing an election. And in this way, they have utterly missed the modern ethos of career adventurism. Unlike our parents, who may have worked at the same firm or factory for 30 years, most of us these days fully expect to cycle through a succession of jobs during our professional lives. But a lot of lawmakers still cling to their seats at any cost to conscience or to constituency, as if it were the only job they could ever see themselves holding — even though, once they leave Congress, they can expect to field more offers and make more money than the average voter will see in a lifetime. It’s this outmoded sense of entitlement that lobbyists skillfully exploit. Our legislators don’t necessarily need to be rescued from the tidal current of corporatism; they just need a little perspective.

None of this is to say that publicly financing our campaigns might not be an improvement over the current system. (It’s a much better idea than, say, term limits, which limits the freedom of voters rather than expanding it.) But thinking that you can fix everything that’s disappointing about politics by eliminating lobbyists’ money is as misguided as thinking you can win the war on drugs by burning down all the coca fields, or that you can end crime by outlawing all the guns. Some amount of corrosive money will always leak into the system. But to borrow the old N.R.A. bumper sticker, lobbyists don’t kill legislation — legislators do.

Matt Bai writes about national politics for the magazine.