What Everybody Knows and What Too Few Accept
CitationLawrence Lessig, What Everybody Knows and What Too Few Accept, 123 Harv. L. Rev. 104 (2009).
AbstractNo one believes that every campaign contribution would tend to corrupt the judicial process. If campaigns were cheap, if contributions were small, if contributors were many or unknown — in any of those cases, the fact that money was contributed to a judge’s campaign could not lead anyone reasonably to believe that the contribution would effect any particular result. In these cases, money would be benign, and the raising of money in these cases should not undermine trust in the institution of the judiciary, at least for any reasonable soul.
But to suggest that a reasonable soul should discount the effect of money in cases like Don Blankenship’s is to invite an exercise of, as Professor Charles Black put it, “the sovereign prerogative of philosophers — that of laughter.” For all of us recognize the pattern from which this case emerges — a pattern spreading across state judiciaries, and completely infecting federal and state legislative elections — and more of us are recognizing the fear this pattern invites.
The pattern is the increasing dependence of public officials upon private money to secure tenure. The fear is the corruption such dependency breeds. Not “corruption” in the traditional sense of a quid pro quo designed to feather a judge’s or politician’s own nest. No one is talking about bribery, or its close cousins. Rather, “corruption” in a less direct, more systems-based sense: that because these public officials depend upon private wealth to secure their tenure, they will become responsive to the concerns of that private wealth, so as to assure its continued supply. Such responsiveness would be fine in a system designed to produce it. But neither a judiciary nor a legislature is meant to be responsive in this way. The effect may be unintended. But the consequence is a weakening of the integrity of the system.
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