Larry Lessig: Hypocrisy Squared

Instead of barbeques and patriotic indulgence, publicity hungry law professor Larry Lessig spent Independence Day frantically urging supporters of his Mayday PAC to reach his July 4th goal of $5 million dollars.

Lessig posits large political donors—the “funders”—have hopelessly corrupted America by influencing election outcomes. His solution is Mayday PAC, which collects huge sums from Silicon Valley billionaires. This money will be used to help elect proponents of draconian campaign finance restrictions. Hypocritical? Lessig “gets that,” but says the “irony” should be “embraced” for the greater good.

But Lessig’s hypocrisy goes beyond his methods to his justifications. He mischaracterizes studies, uses weak anecdotes, and myopically envisions a complex environment in rudimentary terms. The real “irony” is this Harvard professor cannot produce a persuasive case based on the academic literature as it stands and must resort to evidence gerrymandering.   

Professor Lessig repeatedly cites a recent Princeton study by researchers Martin Gilens and Benjamin Page as evidence the average citizen is powerless in policy decisions compared to the well-off. The study does conclude “economic elites,” defined as those making over $146,000 in 2012 dollars, are policy winners. As a campaign finance metric, however, the study is practically meaningless.

Gilens and Page gathered simplistic pro/con responses to numerous policy issues and sorted the answers by economic class. It then compared the admittedly imperfect data with real world results.

But survey participants were never queried on their political giving; contributions are only mentioned twice in passing. Lessig simply extrapolates “economic elites” into his “funders” formulation. While large political contributors are by definition, “economic elites,” the reverse is not true. This sullies the study’s empirical value for campaign finance.

But even discounting this major deductive flaw, the study fails Lessig. It describes a high positive correlation between the policy desires of average citizens and “economic elites.” As the authors state, “Rather often average citizens and affluent citizens . . . want the same thing from government.” In other words, Lessig’s theory that the funders bamboozle average citizens out of their preferred policy preferences doesn’t hold. In fact, the opposite is true. Average citizens are more akin to “free riders” receiving their policy preferences without expending electoral capital.  

But what about where the preferences do diverge?  Some are not easily put into a simple yes/no dichotomy: “trade restrictions,” “corporate regulation,”  “tax policy.” But others are: “abortion” and “school prayer.” To these could be added gay marriage and immigration where average and elite opinion often deviate. Does Lessig and his Silicon Valley sugar daddies really want average citizens deciding these issues?

Other evidence suggests the super-rich moderate American politics, pushing policy toward the center. A recent study found only four of the thirty richest political donors—George Soros, Sergey Brin, and Larry Page on the left, and Charles Koch on the right (sorry David)—fell outside the respective parties’ mean ideological Congressperson.

If the “.01 percent” are buying elections, they are buying mushy middle. Conversely, small donors, whom Lessig venerates, are disproportionately ideological extremists.

Lessig further argues big money distorts policy choices through implicit threats against legislators. He cites an anecdote from former Senator Evan Bayh, calling it “perhaps the most illuminating exchange that I have ever seen about the effect of Super PACs on our democracy.”

Implied threats do exist of course, functioning as a form of public lobbying. Many groups use “scorecards” and “ratings” to influence legislators. A third recent study analyzed the effect of threats and found legislators aware of the “dangers.” But overcoming threats from the ideological flank, as in primary challenges, is democracy, not a subversion of it. And negative independent spending can benefit constituents, providing information about voting behavior and ensuring ideological alignment with the district.

As former Obama counsel Bob Bauer notes, lawmakers operate in a complex, dynamic environment with multiple and varied pressure points. Assigning primacy to campaign spending ignores the complex calculus lawmakers process for any issue. Despite Lessig’s anecdote, social science suggests campaign finance is a bit player in these considerations.

But demonizing a small cohort of Americans in primitive “boogeyman” terms does yield flashy PowerPoints and media adoration. Unfortunately, Lessig’s intellectual rigor fails to match his fundraising zeal.

By Paul Jossey