Corrupt and Unequal, Both
Lawrence Lessig, Corrupt and Unequal, Both
Corrupt and Unequal, Both
Lawrence Lessig 0
Harvard Law School 0
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Lawrence Lessig*
Rick Hasen has presented the issue of money in politics as if we have to
make a choice1: it is either a problem of equality or it is a problem of
corruption. Hasen’s long and influential career in this field has been a long
and patient struggle to convince those on the corruption side of the fight
(we liberals, at least, and, in an important sense, we egalitarians too) to
resist the temptation to try to pass—by rendering equality arguments as
corruption arguments, and to just come out of the closet. Hasen had
famously declared that the corruption argument supporting Austin v.
Michigan Chamber of Commerce2 was a fake3 and that the only basis for
justifying the ban on corporate spending in Austin was equality, not
corruption.4 And the U.S. Supreme Court famously (in our circles at least)
agreed,5 in the process of striking down the ban on corporate spending in
Austin and everywhere else.6 Thus, Hasen argues, it is a fool’s errand to
fake the corruption argument. We need instead, Hasen has constantly
counseled, a bit of egalitarian pride. Be true to ourselves, Hasen tells us,
and give up the pretense of corruption talk.
But as much as I admire Hasen’s persistence and increasing passion—
and I have a privileged perspective in this because I have had the pleasure
of reading his forthcoming Plutocrats United,7 a book that will certainly
mark him as the dean of this field—I think that he has presented us with a
false dichotomy. It is not either corruption or equality. It is both. Our
current system for funding campaigns is corrupt, but it is corrupt precisely
* Roy L. Furman Professor of Law and Leadership, Harvard Law School. This Article is
part of a symposium entitled Fighting Corruption in America and Abroad held at Fordham
University School of Law. For an overview of the symposium, see Jed Handelsman
Shugerman, Foreword: Fighting Corruption in America and Abroad, 84 FORDHAM L. REV.
407 (2015).
1. See generally Richard L. Hasen, Is “Dependence Corruption” Distinct from a
Political Equality Argument for Campaign Finance Laws? A Reply to Professor Lessig, 12
ELECTION L.J. 305 (2013).
2. 494 U.S. 652 (1990).
3. See RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING
EQUALITY FROM BAKER V. CARR TO BUSH V. GORE 112–14 (2003).
4. Id.
5. See Citizens United v. FEC, 558 U.S. 310, 381 (2010) (Roberts, C.J., concurring).
6. See id. at 365 (majority opinion).
7. RICHARD L. HASEN, PLUTOCRATS UNITED (forthcoming 2016).
because it violates a certain kind of equality. The violation is not an
equality of speech, but an equality of citizenship.
Let me begin in familiar territory: Is it corrupt?
To get the sense in which the argument that I have made—and that
Zephyr Teachout’s brilliant book, Corruption in America,8 does the real
work to defend—is an argument about “corruption,” we need to start with a
key, analytical point.
There is a difference between predicating corruption of an individual and
predicating corruption of an entity—not a difference in degree, but a
difference in kind. To say that an entity is corrupt is not to say that it is
filled with corrupt individuals—it may or may not be. It is perfectly
conceivable—conceptually—to imagine a corrupt institution filled with
noncorrupt individuals. And it is perfectly conceivable—conceptually—to
imagine a noncorrupt institution filled with many corrupt individuals.
The reason for this is that the word “corruption” is describing different
things when predicated of an institution, rather than of an individual—not
necessarily, but conceivably. An institution is a system. To say that a
system has been corrupted is to say that it is not functioning as designed;
something has interfered with its ability to function as designed. That
interference is the corruption.
Take a very practical example: the heat in an apartment building.
Imagine each apartment has a thermostat. The thermostat reads the
temperature in the apartment and then directs heat to the apartment based on
that temperature. We could say, in this sense, the system was designed to
create a certain dependence. The amount of heat delivered to an apartment
is to depend on the reading of the thermostat, and it is to depend exclusively
on the reading of the thermostat in that apartment. Or in Madison-speak,
we could say, the heat is to “depend on the reading of the thermostat in each
apartment alone.”9
But imagine the wires (...truncated)