Change Congress

For a very brief moment earlier this year, I considered a run for Congress. My Congressman had announced his retirement. Shortly thereafter, he passed away. A special election was called. Friends pushed me to consider a run. A “Draft Lessig” website was launched; a Facebook group to the same end quickly grew into the thousands. So I agreed to think about the idea.

We ran a poll. The poll revealed two extraordinary facts (after the not-so-extraordinary fact that I had exactly zero chance of winning): first, that 88 percent of the voters in my district believed money buys results in Congress; second, that less than 16 percent had a favorable view of Congress. Six months later, even 16 percent is probably too high. In July, Rasmussen reported that, for the first time in its history, favorable views of Congress had fallen into the single digit range—9 percent, to be precise.

These two numbers are related. Whether 9 percent or 16 percent, our contempt for Congress comes from the fact that most of us believe its decisions follow not common sense, but campaign dollars: that the institution too often cares not for what is right, but for what will raise the funds necessary to secure its own tenure. In that, at least, the system has succeeded: Incumbents who seek re-election succeed more than 95 percent of the time. Tenure in the United States Congress is safer than it was in the Soviet Politburo. It is almost safer than the life tenure guaranteed to federal judges.

As we come to the end of this quadrennial cycle of political energy, we need to recognize that the biggest problem in American politics is not whether a Democrat or Republican should occupy the White House. The biggest problem for democracy in America is how we restore confidence in this, the framers’ favorite institution of American democracy. For as faith in Congress wanes, power shifts to the president and to the courts. And with that shift, democracy weakens. All presidents aspire to be monarchs, and no court could adequately represent the people. If our nation is to remain the democracy our framers envisioned, we must find a way to restore the sense that the core institution in that democracy—Congress—actually works, and works for us.

Tenure in the United States Congress is safer than it was in the Soviet Politburo.

How we do this, however, is not an easy question. At its base, the skepticism that Congress inspires comes from a feature that seems to define the politician: its actions seem inauthentic. Members of Congress say they represent one end; we are suspicious they actually represent another. We fear they act not for the ends that would serve “the People.” Instead, we fear, they act for the ends that serve “the Contributors.” Money guides the results, or so we are likely to believe whenever Congress acts in ways we don’t like and money is in the mix.

This skepticism will end only when the cause of this skepticism—private funding of public campaigns—ends. Yet the only institution that can do that—Congress—is terrified that removing the incumbents’ advantage in raising funds for office will remove the incumbents’ guarantee of tenure.

Maybe it will. But at some point, Congress as an institution must come to recognize the extraordinary cost that this dependency on private funds has created. In the only sense relevant, the institution is bankrupt. Yet none seem troubled with the fall of the institution as a whole, at least so long as the popularity of individual members remains high.

For those who read this presidential election as a referendum for change, the standing of Congress means this change can only be the first step. No president alone can effect significant change in the way government works, or does not work. To do that, and to restore confidence in the core institutions of our federal democracy, will require something that most now imagine is just impossible: changing Congress.

But changing Congress is not impossible. There is an increasing number of members and candidates who have committed to fundamental reform guided by four simple principles: 1) accept no money from lobbyists; 2) vote to end earmarks; 3) increase Congressional transparency; and 4) support publicly funded campaigns. By contributing, volunteering, and voting to support their commitment, each of us could make that change one step more likely.

Lawrence Lessig is a Professor of Law at Stanford Law School.

Author Portrait by Forrest Martin