2. Looking for Corruption in All the Wrong Places

The public view is a stage

Politicians and policymakers know the game as well as the journalists and transparency advocates. When decision makers want privacy, they can take the real conversations into a coffee shop and only pretend to debate at the legally proscribed time. And they know equally well that they hold all of the cards when it comes to access to information. When journalists and transparency advocates regurgitate the conveniently observable facts without analysis transparency can do more damage than good.

Some facts are not the truth. In her classic piece “Insider Baseball” in The New York Review of Books, Joan Didion described a perverse sequence of events in which political reality was manufactured. On a hot day in 1988, presidential candidate Michael Dukakis stepped off an airplane and had a short baseball toss with his press secretary. The ball toss was reported in U.S. News & World Report, The Washington Post, and elsewhere. It became a part of the criteria on which the public was choosing their president. But in a sense that ball toss never occurred.

A ball was thrown, but Dukakis was interested in neither sport nor exercise. It was staged. It was not just staged, but it was a re-staging of a previous ball toss that had not been captured well by the media. And the reporters probably knew it. Didion wrote,

What we had in the tarmac arrival with ball tossing, then, was an understanding: a repeated moment witnessed by many people, all of whom believed it to be a setup and yet most of whom believed that only an outsider, only someone too “naive” to know the rules of the game, would so describe it. . . . [T]his eerily contrived moment on the tarmac at San Diego could become, at least provisionally, history.’[185]

A staging that probably everyone knew was a staging became a ball toss. The public was told a reality that was no more real than today’s reality TV. And perhaps the course of history was changed.

This happens regularly. Just last year, the public’s view of the national debt negotiations was a mix of the fables told by the politicians involved. Reflecting on the events six months later for The New York Times, Matt Bai wrote,

Almost immediately after the so-called grand bargain between President Obama and the Republican speaker of the house, John Boehner, unraveled last July, the two sides quickly settled into dueling, self-serving narratives of what transpired behind closed doors. A few [sources] mentioned, independently of one another, that the entire affair reminded them of “Rashomon,” the classic Kurosawa film in which four characters filter the same murder plot through their different perspectives. Over time, the whole debacle became the perfect metaphor for a city in which the two parties seem more and more to occupy not just opposing places on the political spectrum, but distinct realities altogether.[186]

Because the negotiations were private the only information reporters had to go on at the time was the stories told to them by the politicians who were involved. Boehner asked for too much. Obama moved the goal post. Those stories were repeated countless times. Journalism is not the same as repeating someone else’s fable.

The paradox to be learned from the ball toss and the debt deal is that facts are sometimes wrong. Facts have to be understood within the systems in which they were produced. Reporters must understand that campaigns stage events and that politicians spin. And facts must be presented in a context that tells the right story.

Systemic corruption?

In the United States we are pretty lucky. For all our transparency woes, bribery is practically nonexistent compared to elsewhere in the world, and our government is digital enough that we can access many of the laws that govern us and how they were decided from our computer. Unfortunately, the flip side is that the corruption that we do have is so much harder to see. The nefarious politicians and lobbyists usually know enough not to make transactions that they will have to report. Gifts, travel, assets, and campaign contributions are highly regulated and scrutinized through disclosure laws and in some cases complete bans. Now that it takes so much effort — real, hard enterprising journalism — to find corruption, we should be suspicious of claims that corruption is everywhere.

For instance, OpenCongress.org — which is largely a clone of my website GovTrack.us — paints a dark picture of a “broken and systemically corrupt system of captured government,” by which they mean that government decisions are based largely on how they would affect the profits of corporate executives.[187] MAPLight.org talks up a similar angle: “Elected officials collect large sums of money to run their campaigns, and they often pay back campaign contributors with special access and favorable laws. This common practice is contrary to the public interest, yet legal,” they wrote on their About page.[188]

The concept of systemic corruption was popularized by lawyer-professor Lawrence Lessig in 2008 with his Change Congress project (later renamed Fix Congress First and now Rootstrikers). To Lessig, Congress is corrupt in so far as money plays an intrinsic role in who gets elected and how they make decisions after taking office. Lessig, like Louis Brandeis (see section 3.1), is concerned about conflicts of interest. Lessig says lobbying is “pervasive and corrupting” and that Members of Congress have a “dependency on the funders.” The corruption is “nothing so crude” as quid pro quo, he says, meaning the problem is not as simple as bribery.[189]

Systemic corruption of this sort might be said to come in three parts. First, it takes money to get elected to Congress, and a lot of it. That creates a selection bias in the sort of individuals who can become policymakers. Second, once in office, decisions may be influenced by campaign contributions from past elections or the prospects of campaign contributions for future elections. Third, and most insidious, is that policymakers may get a skewed perspective of reality by spending disproportionate time with those with the ability to pay for access (see Sunlight Foundation’s Party Time website described in section 3.1). This is all true, but not everything in government is corrupt.

There is a lot of rhetoric on the subject of systemic corruption, like this sentence from the description of a conference hosted by Lessig’s Fix Congress First organization:

From the Right and the Left, citizens are increasingly coming to recognize that our Republic does not work as our Framers intended.[190]

This is spin. Our Republic didn’t work the way our Framers intended even during the time when the Framers were still running it. The partisan politics George Washington famously warned of in his Farewell Address fully materialized between the time of his Address and the actual end of his presidency. The sentence I quoted is intended to rile people around the idea of making government better. But it does so at the great expense of misleading the public that government has gotten worse. That couldn’t be farther from the truth.

In regular press releases and blog posts, MAPLight.org highlights the correlation between campaign contributions and how Members of Congress vote (MAP stands for “Money and Politics”). I first met MAPLight’s co-founder and executive director Dan Newman back at the 2005 Personal Democracy Forum as he was shifting the site from a focus on California legislation, as TakeBackCA.org, to a focus on federal legislation. Today the site is tracking money and votes in Wisconsin and Los Angeles as well California and the U.S. Congress. MAPLight combines data from the Center for Responsive Politics’ OpenSecrets.org, my own GovTrack.us, and MAPLight’s own research for its analyses of U.S. legislation.

In a May 17, 2011 blog post the site reported that

Major (multinational) oil & gas producers gave 8.8 times as much to senators that voted NO as they gave to senators that voted YES [on a bill, S. 940, that would raise taxes on the oil producers]. . . . Interest groups that supported this motion (Democratic/Liberal and Environmental policy) gave 20 times as much to senators that voted YES as they gave to senators that voted NO.[191]

MAPLight has found this pattern dozens if not hundreds of times. And yet it’s not at all clear what it means. Is this evidence of systemic corruption?

While MAPLight doesn’t say that the correlations they find are also evidence of causation, they must believe that the numbers are indicative of some causal relationship — otherwise their analysis would have no bearing on the reality of “special access and favorable laws” that motivated the site’s creation in the first place. In other words, without some complex chain of events linking the campaign contribution to the roll call vote it would be just coincidence. It’s not a coincidence. But we need to understand that chain of events before jumping to any conclusion.

Failing to understand the chain of events would be like denouncing Hallmark’s cyclic advertising campaigns as the source of all unpleasant wintry weather. Not only were the votes on S. 940 correlated with money raised, but with the senators’ net worths, ages, and a host of other factors. Interest groups supporting the bill gave 50% more to the 50 senators serving from the states at the end of the alphabet, compared to the 50 serving from the first half of the alphabet!

And then there is party. Votes are almost always split closely along party lines.[192] A donation to a yes-vote and a donation to a Democrat look the same in aggregate for S. 940 — the yes-votes are by and large the Democrats. If MAPLight had reported that “Democratic/Liberal and Environmental policy” interest groups gave 100 times more to Democrats than Republicans and “Major (multinational) oil & gas producers” gave five times more to Republicans than to Democrats, we’d be much less suspicious of corruption. There’s nothing surprising about interest groups being aligned with parties (especially “Democratic/Liberal” interest groups being aligned with Democrats). The individuals making up the contributors in those interest groups of course supported candidates with similar views to their own! And since party whips keep their members in line, the fact that there is also a correlation to votes is hardly cause for alarm.

If money is primarily what determined the outcome of the vote on S. 940, and not the senators’ actual views or their party affiliation, then we should expect money to explain why five senators broke with their party in the vote. Sen. Susan Collins, a Republican who voted for the bill, actually received twice as much money from opposing interest groups than supporting interest groups. In fact, all five of the senators that broke from their party also broke from the side that gave them more cash.

It’s easy to paraphrase the corruption right out of MAPLight’s analysis. Left-leaning groups gave to Democrats and right-leaning groups gave to Republicans. In the few cases where senators broke with their party, it was against the position of their funders. MAPLight’s numbers aren’t wrong. Facts are facts. But the facts say nothing about corruption, which is sad because there are real conflicts of interest that need to be addressed.

*   *   *

Comparing voting records with campaign contributions is easy thanks to two and a half centuries of progress in the freedom of information movement. We have to make the comparison to check up on our Members of Congress. But just because a correlation is true does not make it relevant. Lawrence Lessig wrote the following in a 2009 article “Against Transparency”:

At this time the judgment that Washington is all about money is so wide and so deep that among all the possible reasons to explain something puzzling, money is the first, and most likely the last, explanation that will be given. . . . But what about when the claims are neither true nor false? Or worse, when the claims actually require more than the 140 characters in a tweet?

This is the problem of attention-span. To understand something–an essay, an argument, a proof of innocence– requires a certain amount of attention. But on many issues, the average, or even rational, amount of attention given to understand many of these correlations, and their defamatory implications, is almost always less than the amount of time required. The result is a systemic misunderstanding — at least if the story is reported in a context, or in a manner, that does not neutralize such misunderstanding.[193]

This is the same Lessig who sits on MAPLight’s board of directors, and who calls Congress corrupt for allowing elections to continue to be funded by individual contributions. But I think his point here is correct, that the nuanced analysis needed to actually prove corruption is missing from the picture so often portrayed to the public, leaving the public lost in a forest of cynicism.

From academic research we know that the relationship between money and roll call votes shows no evidence of widespread corruption, and mixed evidence of any causal influence at all. Thomas Stratmann summarized in a 2005 article:

Recent research shows that campaign contributions have not had much of an effect on legislative voting behavior . . . Bronars and Lott (1997) examine whether retiring legislators, who are not threatened by retaliation in the next election cycle, change their voting behavior, measured as a change in voting score, when there is a change in contributions from relevant PACs. They find only modest evidence that changes in these contributions change voting behavior. Ansolabehere, de Figuieredo and Snyder (2003) examine the effect of labor and corporate contributions on voting scores assigned by the US Chamber of Commerce and likewise find no evidence that contributions affect voting in the predicted directions once one allows for member or district fixed effects, or uses instrumental variables estimation.[194]

Looking across 265 separate studies on the subject, Stratmann found a causal relationship between campaign contributions and roll call votes that was so small that he was not sure it was even real.[195]

The National Institute on Money in State Politics found in 2009 “little influence of campaign contributions on stimulus contracts.” The organization compared government contracts awarded under the American Recovery and Reinvestment Act against its database of donors to state-level political campaigns and found only 3.2 percent of contract recipients had been donors. Without some sort of baseline it is hard to know whether 3.2 is a lot or a little, but it seems like a little. Although one might say those 322 contractors made a 300-times return on investment, there’s no way to know whether their $35 million in total contributions had anything to do with their contract award, and the other 96.8 percent of awardees didn’t appear to get the award through this sort of conflict of interest.[196]

The Center for Responsive Politics (CRP) found in 2010 that a quarter of General Motors’ contributions to congressional campaigns went to Members of Congress that had voted against GM’s bail-out during the economic crisis. CRP wrote on its OpenSecrets blog that this was ironic, as if the only way this could have happened was if GM’s PAC (political action committee) fell asleep at the wheel — not that there could be reasons for campaign contributions besides quid pro quo.[197]

CRP later reported that while postal union PACs and employees contributed $44,000 to Rep. Darrell Issa’s 2010 election war chest, he introduced a bill “ending Saturday delivery, closing post offices and laying off workers.” The postal union explained their reaction to the CRP blogger:

“We supported Issa pretty early on last cycle, and that was a direct result of him reaching out and working with us,” Jennifer Warburton, director of legislative and political affairs for the National Association of Letter Carriers, told OpenSecrets Blog. “He said there had to be a way to reform the Postal Service to keep the dignity of postal workers intact.”

“We had thought he was going to be a strong leader in the House, and we were hoping that we’d be able to work together,” [Mark Strong, president of the League of Postmasters] told OpenSecrets Blog. “It’s quite evident that won’t happen, and he won’t be getting our support in the future.”[198]

Issa was not bound either by money or by implied commitments to policy decisions. And the same went for those Members of Congress taking campaign contributions from GM.

So, yes, money poses a moral dilemma for policymaking. To be sure, there’s no question that some individual lobbyists and congressmen intentionally create conflicts of interest and conduct successful bribery. There is some evidence that campaign contributions influence other aspects of policymaking, such as what amendments are offered during the committee process.[199] And without a doubt, only candidates with the right charisma and connections can raise enough money to unseat an incumbent. Public trust in Congress is also especially low, and voters are becoming more savvy about the connection between money and policy. But the rhetoric makes it sound as if every campaign contribution, or, worse, every act of every politician and lobbyist, is inherently corrupt and directly resulting in bad policy.

But is that what is really happening? Lessig himself consistently hedges that even if systemic corruption is not as great as he thinks, most Americans still believe that money buys results and that the “profound lack of trust” is enough to warrant reform.[200] In his article Against Transparency, Lessig wrote that Big Data hasn’t yet proved widespread corruption: “The most we could say—though this is still a very significant thing to say—is that the contributions are corrupting the reputation of Congress.”[201] The main proponent of the idea of systemic corruption is not sure if it is true.

*   *   *

It’s strange that campaign contributions are so stigmatized when millions of individuals contributed to a presidential campaign in 2004[202], presumably because they believed that if their candidate won then things would be better for them. It is unfortunate that campaigns need so much money to be competitive in buying advertisements, holding events, polling, paying staff, and, confusingly, funding other less-endowed campaigns (more on that later). But it is individuals who drive large campaign spending, and individuals choose who to donate to in part based on the past actions of those candidates, including how they’ve voted on policy issues. It’s no surprise that the politicians I contribute to have political views correlated with my own. There is nothing nefarious there.

Granted, there are morally confusing forms of contributions. An individual may contribute a particularly large amount, or he may strongly urge his employees to contribute through a company PAC, or he may “bundle” the contributions of others so they appear as a bloc and then expects to be remembered for it. These create conflicts of interest. Bundling was more common until the 2007 law that required lobbyists and others to disclose their role in bundled contributions. In a 2009 disclosure form, Rep. Peter King from New York reported that $51,750 in contributions were bundled by former New York City mayor, former presidential candidate, and possible future candidate Rudy Giuliani. That’s 20 times what Giuliani could legally have contributed personally, and no doubt King will remember him for it. Senate Majority Leader Harry Reid reported $18,700 in contributions bundled by Tony Podesta, one of the most influential lobbyists.[203] That is quite a conflict of interest for Podesta to bring Reid both cash and requests from the organizations he represents.

Then there is the stigma of the lobbyist. A lobbyist is someone who advocates a position before the government. If there were no lobbyists government wouldn’t know what laws to make. And while some lobbyists work for corporations, many others work for non-profit organizations. What gives lobbyists their power is not their money, at least not directly, but rather their wonkish knowledge of the legislative process.

“[T]he day-to-day of the lobbyist is really not all that glamorous,” wrote Lee Drutman in his doctoral dissertation:

It is staying up on the very latest news, knowing what’s moving, what isn’t, why, and what to do about it. . . . [T]his banality of lobbying may be precisely the reason that lobbying is influential. The devil lies in the details, and only those with the resources and patience to painstakingly master the most abstruse intricacies, to cover all angles and shore up all the bases, will win. (p. 7)
Lobbyists provide issue and legislative expertise both to the companies that hire them and to the congressional staff they interface with. And yet it’s the lobbyist’s unique expertise that gives them the ability to create conflicts of interest through their role as gate-keepers. One lobbyist recalled being asked for help by a company:
“Can you get me in to see the [agency] director who is holding the public meeting, and if you get me in there, would he know you? Which inevitably means, if he knows you, I have a level of legitimacy. And also, would you help me to plan beforehand how to say the things I need to say to him in a way that’s going to make them think like us?”[204]
Another lobbyist explained the role of consultants:
“[W]hen I have a problem on an issue and we have to talk to a Republican Senator, he probably has 10 or 12 close friends who are Republican Senators, so I will call him and we’ll go talk to Senator X. And we have seven or eight consulting arrangements on that basis.” (p. 50)[205]
Like campaign contributions, lobbying is a crucial and probably necessary part of the way governance works, and yet it puts people in difficult and sometimes questionable positions.

If the campaign contribution is a lobbying tactic, as is popularly believed, it is only one of many. In a survey of lobbyists by Drutman, the importance of fundraiser events was ranked near the bottom among 21 lobbying tactics. Drutman also reported that of businesses with a lobbying presence in Washington, D.C., just 24% maintain a PAC, the sort of organization they would need to make campaign contributions.[206] Of course, as Drutman pointed out, the sensitivity of admitting that fundraisers are a component of lobbying may have reduced their apparent importance. Nevertheless, it is without a doubt that the vast majority of lobbying has no connection to campaign contributions. (Because the diversity of tactics is so interesting, I have included part of Drutman’s table of lobbying tactics in Figure 24.)

Tactic

Relevance

Contacting Congressional staffers directly to

6.4

   present your point of view

Monitoring developments closely

6.3

Contacting Members of Congress directly to

6.1

   present your point of view

Consulting with members of Congress and/or

5.5

    their staff to plan legislative strategy

Helping to draft legislation

5.3

Contacting members of the executive branch

5.1

Presenting research results

5.1

Mobilizing constituents to contact their

4.4

   representatives

Talking to people from the press and the media

4.4

Testifying at hearings

4.1

Attending political fundraisers

4.1

Organizing political fundraisers

3.2

Using issue advertising

2.7

Figure 24. Selected tactics used by lobbyists ranked according to their relevance on a seven-point scale. I marked in bold the two tactics included in the survey related to campaign contributions. (Excerpted from Drutman, Lee Jared. 2010. The Business of America is Lobbying: The Expansion of Corporate Political Activity and the Future of American Pluralism. Doctoral dissertation, U.C. Berkeley. Page 11.)

Buying chairmanships

To be clear, bribery, intentionally creating a conflict of interest, and pay-for-access are all obstacles for good policy. These are real problems, and there are worse problems. By the time a bill comes up for a roll call vote the policymaking has long been over. The problem with focusing on the aggregates above — which tell us nothing about corruption — is that we miss the even more compelling stories of how money influences policy. For instance, there has been ongoing extortion between Members of Congress for the last 15 years, and it’s no secret: money buys positions on Congressional committees. Most policymaking in Congress occurs within committees, and committee chairs exercise an enormous influence over what bills are discussed and which move forward. Chairmanships are highly coveted positions.

Every two years a “steering committee” in each party’s House caucus assigns their party’s members to the House’s roughly 20 committees. When Politico reported after the 2010 elections that incoming Republican House Speaker John Boehner selected Rep. Hal Rogers to be the chairman of the Appropriations committee[207], it failed to mention that Rogers transferred $456,806 from his campaign war chest to the National Republican Congressional Committee.[208] The NRCC is a central pool that House Republicans disburse to Republican candidates that need some extra help getting elected to the House. Rogers transferred to other Republican candidates at least as much as he spent on his own campaign! Among the many things that worry me about this is the concern that the individuals contributing to Rogers’ campaign — or really any campaign — may not know that they are financing candidates that they have never heard of.

Rogers’ case is not at all unique. In Sharing the Wealth, Damon M. Cann documents a thorough analysis of how transfers between congressional campaigns influence assignments to chairs of House committees and to chairs of House Appropriations subcommittees. He summarized his theory of what has been happening in Congress:

[P]olitical party leaders broker exchanges with party members that are crafted to help both parties and party members reach their respective goals. [For example,] the exchange of positions of power (from party leaders) for unity in roll-call voting and financial support of party goals.[209] . . .

The party’s willingness to make leadership positions conditional on member contributions offers at least a partial solution to the collective action problem the political parties face in soliciting support from their members. To the extent that party leaders control who holds positions of power in Congress (i.e. committee chairs, subcommittee chairs, and party leadership positions), they may use them as a selective incentive to encourage members to support the party and party candidates. While other potential selective incentives exist, these seem to be particularly important in encouraging members of Congress to financially support their parties.[210]

Cann compared seniority, party unity, contributions to other candidates’ campaigns and other factors against who won and who lost of those House members seeking chair positions. On the bright side, it hasn’t always been about money. When Republicans took the majority in the 104th Congress — following the 1994 elections — Speaker Newt Gingrich relied primarily on committee seniority when choosing his new set of committee chairs, following long-standing precedent. In other words, when a committee chair position was vacated, it would be filled by the longest-serving member of the committee (in the majority party). Campaign contributions, party unity, or even electoral safety played no appreciable role in the chair selection process. Cann noted, however, that Gingrich did not necessarily support a seniority system, but it was the way things were done at the time.

Things changed in the next two Congresses. Chair selection in the 105th and 106th Congresses (under Gingrich and then Dennis Hastert) began to be influenced by campaign contributions to the party — a tactic for party leaders to reward team players and exert control over the committees. In those years, although seniority was the primary consideration, when the Speaker stepped away from seniority it tended to be in the favor of those that contributed more to his party. An extra $30,000 could catapult the second senior Republican member into the chair.

By 2001 and the 107th Congress, the seniority system had been abandoned. By the numbers, Hastert’s chair assignments from the 107th to the 109th Congress could be explained almost entirely by who had given the most to Hastert’s party and whether they had in the past voted in unity with the party. A similar but slightly less certain picture unfolded for the selection of the chairs of the Appropriations subcommittees, so called “Cardinals of Capitol Hill.” (During this time the Republicans held the majority in the House, and the majority alone elects the committee chairs. There is every reason to believe this process continued under the Democratic majority from 2007-2011.)

If one’s ability as a fundraiser had some connection to one’s ability to run a committee, there would be no issue here. We should be concerned about this process. It sets an example for would-be chairs of what is expected of them, creating an incentive for congressmen to pay in to the party. And the candidates who receive the money from the party war chest become indebted to the party early.

And everyone becomes indebted to their donors. Now that a campaign check is routinely divided among the dozens or hundreds of campaigns of colleagues, the pressure is on to keep fund-raising well past what the candidate needs himself.

The same exchanges effect the election of party leadership. Boehner, who selected Rogers for the Appropriations chair, transferred nearly $4 million to the NRCC in the 2010 campaign cycle, the most of all Republican congressmen.[211] That may have helped him in his bid for Speaker.

These are places we should be looking for corruption, all well before the moment of the vote. What guides a Member’s decision to introduce a bill on a subject? Or, going back much much further in the legislative process, what does it take to win a primary?

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