“What is corruption, how should we define it, and why is it bad?”

This is the question put to the panel organized by Fordham Law and featuring key theorists about corruption and equality, all of them on the reform side.  It is available on video and well worth watching.  Rick Hasen has already reported that he and Larry Lessig came to a sort of detente – – coming closer, he said, “than we ever have before” on the role of money. This is an understatement.  By the time they were done, Lessig, champion of a theory of “dependence corruption”, and Hasen, vigorous exponent of a theory of political equality, agreed that they might be talking about roughly the same thing.  Somewhat more on her own was Zephyr Teachout, who argued eloquently for a morality-based view of corruption centrally concerned with shoring up civic culture.

This conference may have signaled the beginning of the end of the emphasis in leading reform scholarship on “corruption”, at least in the sense in which it has dominated the debate for decades.  The difference between Lessig’s position and Hasen’s is “semantic”, as Hasen now sees it, and Professor Lessig does not appear to disagree.  Quid pro quo corruption is not Professor Lessig’s primary concern.  In fact, he told the conference that when he meets with Members of Congress, he finds them generally to be well-motivated—good men and women, as the saying goes, caught up in a bad system.

When speaking of corruption, Professor Lessig told the conference, he means this corruption of institutions, and he stressed that the ill effects consist of a kind of inequality.  Certain people can’t participate in the political process as others can, and their disadvantage is lack of money.  In the “sequence of decisions” leading to the election of candidates, they are invited in toward the end, after those with money frame the basic choice.  His analogy is the White Primaries, except that this is a money primary and only those with the cash can “vote.”

So Lessig’s corruption is corruption-as-inequality, which is the move that has narrowed the space once separating him from Hasen.  He is not abandoning his characterization of the problem as one of corruption, in part because this is the ground on which he can engage the current Court on its own terms. But he agrees that it is inequality that follows from this institutional corruption.  The reform movement, he argues, should be mobilized against both problems, corruption and inequality, and in fact, on this theory, they are not distinguishable.  As Hasen noted, there arrives a point when the definition of “corruption” is so broad that issues of corruption and issues of equality overlap.  This is where Lessig and Hasen have come together.

The discussion was not all theory.  Hasen opened with an analysis of the relationship of strict campaign finance laws to the incidence of public corruption prosecutions.  He finds nothing to indicate that more stringent contribution limits have much effect.  As an example of other factors with potentially more explanatory power, he cited recent scholarship that focuses on “isolated capital cities” distant from the better part of the electorate and insulated from active media scrutiny.

Meanwhile, in standard reform advocacy and tried-and-true editorial appeals, the reform case may continue to sound the same it has since Watergate, all about “legalized bribery.”  But slowly but surely, as the Fordham conference seems to show, progressive thought on these issues has begun to change.

Leave a Reply