Lessig's basic theory is that you cannot have serious tax reform with Washington lobbyists throwing money around wildly at the relevent congressional committess, specifically Ways and Means in the House and the Senate Finance Committee.
As Ronald Regan's first budget director, David Stockman, pointed out on Moyers & Company a couple of weeks ago, that would require a constitutional amendment given repeated Supreme Court rulings equating money and speech. Obviously, that isn't going to happen anytime soon, if ever. The triumph and continued celebration of institutional ignorance makes it a virtual impossibility. Even if that weren't the case, ratification would be a challenge that probably couldn't be overcome.
John McCain said on Meet the Press this past Sunday that Citizens United would lead to a scandal so catastrophic that serious reform was inevitible. As he is on any number of issues lately, McCain is terribly, terribly wrong and displays a pathetic understanding of history.
The first significant revisions to campaign finance were made in the wake of Watergate and President Nixon's resignation on 9 August 1974. It should be remembered (if anyone understands it in the first place) that there would have been no Watergate witout Nixon's campaign "slush fund" that consisted of several million dollars. The White House Plumbers Unit was financed through that fund, which is how Congress was unaware of it. And the hush money that constituted the main (and by far most important )obstruction of justice article of impeachment came from there as well.
During a recorded conversation on 20 March 1973, White House Counsel John Dean told Nixon that the silence of the Watergate burglers would "cost a million dollars." Nixon replied, "You can get a million dollars. I know where it can be gotten", by which he almost certainly meant his campaign slush fund.
And Watergate did lead to comprehensive campaign finance reform. Unfortunately, it didn't take. Beginning with Buckley v. Valeo in 1976, the Supreme Court knocked laws down on First Amendment grounds just as quickly as they could be written. If Watergate and the forced resignation of a president that had won 49 states less than two years earlier didn't make reform stick, what scandal does McCain forsee that will? In the decade after Watergate alone, the money spent in House and Senate races exlploded by some 400%.
Money will always (and, in my opinion, properly) be equated with speech. Scandal will only change things temporarily, if it doesn't actually accelerate the cascade of money. And a constitutional amendment is a hill far too high for anyone to be reasonably expected to climb.
Nor do I think campaign money is even the problem. President Theodore Roosevelt financed his 1904 campaign with giant wads of cash from a very exclusive combine of industralist millionaires. That money in no way stopped TR from screwing his contributors with the hot poker of anti-Trust laws when the mood struck him. That suggests that money isn't as much of a problem as the character of our current politicians is. And no law is ever going to change that.
I just started reading Showdown at Gucci Gulch: Lawmakers, Lobbyists and the Unlikely Triumph of Tax Reform by Allan Murray and Jeffery Birnbaum. Showdown chronicles the passage of the 1986 Tax Reform Act, the signature legislative accomplishment of President Ronald Reagan's second term, which was passed over the strenous efforts of Washington's army of lobbyists with fairly impressive bi-partisan support.
The '86 law is the foundational basis of most current Republican tax plans. It lowered rates fairly dramatically and closed corporate loopholes. Sound familiar? What modern Republicans don't like, but liberals loved, is that it also took some four million low-income earners out from under the federal tax burden entirely. In any event, it was widely considered a triumph over the lobbying class.
One of the great things about reading history is that you usually know how the story ends. While Showdown at Gucci Gulch had a happy ending - tax reform passed and the lobbyist scumbags were vanquished - things became decidedly unhappy after the book's 1987 publication.
By 1990, or thereabouts, the lobbyists had most (if not all) of their client's loopholes restored, which essentially meant that you had fewer people paying taxes at a lower rate. That threw the budget even more out of balance, necessitating the 1990 and '93 tax increases under George H.W Bush and Bill Clinton. Since then, tax rates have been even more drastically cut as loopholes have broadened.
Forget something as dramatic as serious tax reform, you won't even be able to balance the budget as long as this persists. So long as the political system stays as it is, tax rates will continue to remain static (or head further downward) as loopholes expland, meaning that government will have less and less revenue to do more and more. Iran, as you might have figured, has a very poor history of bombing itself.
Nor willl spending cuts accomplish much, at least not by themselves. You can only cut so much in a democracy before people start to realize that they're losing services only to preserve the goodies in the tax code for their social betters. This almost never ends well, as you might well imagine.
No amount of campaign finance reform - outside of full public financing - is ever going to change this. Moreover, there's no guarantee that public financing would be upheld by the courts because of free speech considerations.
But it can be handled nicely through lobbying reform. Specifically, the revolving door of politics, government and lobbying.
Let's be real. Political types are practically unemployable, which is how they got into politics in the first place and why so many of them go into lobbying when they finally get booted out of politics forever. And lobbying firms know that.
On the other hand, those firms also know that those layabouts, both at the elective and staff levels (both campaign and governmental), have built relationships and know how to work the system to their ends. Why else would they be hired, if not to exploit that? It's not as if these people were especially good lawyers. If they were, they'd be making more money in white-shoe law firms and investment banks, and never would have darkened democracy's door in the first place.
Worse, these people, while still registered as lobbyists, are allowed to still "volunteer" on campaigns and "advise" members of the government. Those people exist to play the government - and by extension, us - to the fullest extent that they can. If you want to know why the 1986 Tax Reform Act didn't solve all of the world's ills, and may have actually made the budgetary situation worse, now you do.
The best part is that you don't even need a law to fix this! Under the constitutions of the United States and most of the Commonwealth, legislatures are given the freedom to pass and enforce their own rules. Better still, the courts rarely, if ever, interfere with that right, if only because they want to preserve their own independence to maximum possible extent.
The way I see it, you needn't restrict the right of former politicians or their staffs from registering as lobbyists. Congress or Parliament could simply pass a rule prohibiting current members (and their current staffs) from interacting with them if they do. This also wouldn't violate anyone's association rights because the member always has the option of resignation. Being a member of a legislative body isn't a right. It is something that comes at the pleasure of the people.
How long do you figure lobbying firms would continue to hire these people if their ability to trade influence was retricted? Sure, some of them would survive as "consultants" or "legislative strategists" but you would see their numbers decimated simply because the market couldn't bear that much dead weight for very long.
One of the reasons that I don't write about liberals very often is that I know that they're impractial idealists, and that there's very little reasoning with them. Until very recently, conservatives were different.
Besides, the most important legislative goals - like fundamental tax reform - are directly tied to minimizing the power of lobbyists, and that's simply not true of the left. Moreover, it would probably be far better politically for conservatives if liberals were left to be the exclusive domain of animals like the folks at Goldman Sachs. More importantly still, there haven't been very many liberals over the last fifteen years that have been ensnared in (or imprisoned because of) lobbying-related scandals. But the list of conservatives who have been is virtually endless.
There are any number of reasons that conservatives should do this, but I hardly think that they will.
First, as we've seen in recent years, conservatives benefit as much from the revolving door as liberals ever did, and the criminal dockets show that they've benefitted from it even more. Second, it would require conservatives to actually do something, instead of merely opposing stuff, which has become our legislative default position.
Long story short, conservatives are never going to get the things that their hearts desire most. And it's going to be their own fault.
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