Huffpost Politics
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Lawrence Lessig Headshot

Delusion on the Hill? The Earmark Puzzle

Posted: Updated:

The House Committee on Ethics released its report last month exonerating 7 Members of Congress from the charge that they had traded earmark requests for campaign contributions. The investigation had "covered more than 40 companies ... and more than 25 Member offices." The Committee staff was said to have reviewed close to 250,000 documents.

But while the Committee found "a widespread perception among corporations and lobbyists that campaign contributions provide enhanced access to Members or a greater chance of obtaining earmarks" -- including many "instances of companies questioning why they had not obtained an earmark after making substantial campaign contributions to Members" -- these experts, the Committee tells us, are apparently delusional. There is no quid pro quo. "Simply because a Member sponsors an earmark for an entity that also happens to be a campaign contributor does not, on these two facts alone," the Committee instructs us, like a school-marmish defense attorney lecturing a jury, "support a claim that a Member's actions are being influenced by campaign contributions."

The Report may well signal a retreat on the standards of ethics that govern Congress today. Following the Supreme Court's weakening of the appearance of corruption standard in Citizens United, the Democratic Ethics Committee may now be doing the same. Tom Delay, after all, was criticized for behavior that created the mere impression that money was buying results. As that Republican Ethics Committee put it, "a decent interval of time should be allowed to lapse so that neither party [donor or recipient] will feel that there is a close connection between the two acts." But timing wasn't even mentioned by this Committee in its review of Democratic Representative Visclosky, for example. In his case, twelve days after earmark requests were due, the earmark requesters were invited to a fundraiser. A week after the fundraiser, Visclosky submitted the earmark requests. Whatever Delay's committee meant by "a decent interval," it is hard to believe a mere week's delay could be deemed "decent."

Of course it is right that the mere fact that a contributor has requested an earmark does not show that the earmark was bought. But the Committee should do more to understand just why lobbyists, corporations, and the public believe that there is such a link. For the suggestion is not pure delusion. It is standard practice on Capitol Hill, for example, to leave a Member's office and receive a telephone call -- sometimes minutes later -- from the fundraising committee for that Member. Is a company supposed to interpret that call as a mere coincidence? "Oh what a surprise. I just left the Congressman's office!"

More fundamentally, the Committee on Ethics should just get out of the business of reviewing their own. No vindication will ever ring true; no conviction will ever escape the charge of exceptionalism. Congress should instead either give subpoena power to the one truly independent committee charged with policing Congress's ethics -- the Office of Congressional Ethics -- or it should leave the matter of prosecuting bribery to prosecutors. Amateur gumshoes are never going to nail professional politicians. As Congressman Barney Frank has often described the rule of DC, "Never write if you can call, never call if you can talk, never talk if you can nod, and never nod if you can wink." Is it any surprise then that when an ethics committee goes digging for evidence of a felony, they come up empty handed?

Instead, the Committee should focus its work on finding ways for Congress to act without rendering the public perpetually cynical. There are plenty of ways, for example, that Congress can manage earmarks better. Rep. Jackie Speier (D-CA), an ally with Rep. Jeff Flake (R-AZ) in opposing earmarks, runs her requests through a citizens committee, in which members of the community develop principles to guide earmark requests, and then make recommendations based on those principles (I served on the first of these committees). No one's status as a contributor is known or asked about. Not one of the volunteers spending weeks pouring through these proposals has any interest in knowing. Last year, the committee drew an almost absolute (and perfectly sensible, in my view) presumption against any for-profit company being granted a government grant through an earmark. That principle was elevated this year into a House standard.

Or the Committee could finally get behind the one real change that would actually allow Congress to do its work without the public perpetually thinking the worst of them. For of course, as the Committee quoted the Supreme Court as saying, the practices at issue represent "conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions." But if Congress's elections were differently financed -- funded exclusively, for example, by small dollar democracy vouchers ($50 a voter would quadruple the total amount raised in 2008) or small dollar contributions matched by the government -- then any suggestion of improper influence would be just silly.

More than 140 Members of the House, both Democrats and Republicans, have co-sponsored one such proposal -- the Fair Elections Now Act. Rather than weakening the already puny limits on congressional influence peddling, it is time for the Democratic Leadership to give Congress a chance to be perceived as pure as its Ethics Committee protesteth, perhaps too much, that it already is.

Register To Vote