Setting the Framework for the Question of Institutional Corruption

Speaker: Lawrence Lessig, Director, Edmond J. Safra Center for Ethics; Roy L. Furman Professor of Law and Leadership, Harvard Law School

Center Director and HLS professor Lawrence Lessig delivered the first lecture of the 2009-10 Labs Lectures on the Question of Institutional Corruption.

In his inaugural lecture as director of the Edmond J. Safra Foundation Center for Ethics, Professor Lawrence Lessig presented both a plan of and call to action as the Center embarks on its five-year investigation of the problem of institutional corruption. Professor Lessig described the general methodological framework within which the Center's "Lab" will operate as they engage in this inquiry, as well as the stages through which their research is intended to progress. Finally, Lessig tried to impress upon the audience that, as members of the University community, they are subject to a moral obligation to assist in the project of identifying and proposing remedies to this problem of corruption in its various manifestations.

Professor Lessig began his lecture by giving an overview of the diversity of factors that can have an influence on the functioning of a given institution (e.g. laws, markets, etc.), the set of which he termed an institution's "economy of influence." Having introduced this idea of an economy of influence, Lessig then went on to characterize the related idea(l) of "institutional independence." To illustrate, Lessig appealed to the framers of the Constitution, for whom institutional independence was of great concern as they architected the various governmental institutions that would eventually make up the basic structure of American society. For the framers, the aim was not, of course, to design a set of institutions that would be wholly independent, i.e. responsive to nothing at all. Rather, the aim was to design a set of "independent" institutions in the sense that these institutions would be dependent upon, i.e. responsive to, only "proper" sources of influence (with propriety of influence being determined by the intended function of a given institution). So, for instance, an "independent" legislature would be a legislature that is dependent just upon the people, an "Independent" judiciary a judiciary that is dependent just upon the law, and so on and so forth. Thus, Professor Lessig argued, the way that we ought to think about the task of minimizing corruption in a given institution is as one of facilitating proper dependence and minimizing improper dependence for that institution. Or, to put the point slightly differently, we ought to see it as a task of purifying that institution's economy of influence.

Having introduced these ideas of an "economy of influence" and "institutional independence," Professor Lessig went on to introduce a third key concept underlying his understanding of the problem of institutional corruption, that of "responsibility." When coming to terms with the bad actions, there is a tendency, both within the law and our own moral psychologies, to attribute primary (perhaps even sole) responsibility for those actions to the individual who perpetrated them; this despite the fact that, as Lessig pointed out, in many such cases, those bad actions could have been prevented if some other individual(s) had taken relatively simple steps to prevent them. To illustrate, Lessig described the court case Hardwicke vs. A.B.S., which involved an individual found guilty of engaging in a series of acts of sexual abuse towards pupils during his time as an employee at a boarding school. Again, there is a tendency to attribute primary (and, at least within the law, sole) responsibility for these acts to the perpetrator. But, Lessig asked, what are we to think of the various other individuals at the school who, despite their awareness of the perpetrator's ongoing abusive behavior, failed to take even minimal steps (e.g. phoning an official) to bring it to an end at a much earlier stage? Lessig maintains that we ought to attribute at least some responsibility for the perpetrator's continued abuse of these individuals in addition to the responsibility that we attribute to the bad actor. Moreover, Lessig argued, in this situation and others like it, it seems far more sensible, from a practical standpoint, to focus our attention on these individuals since they, unlike the perpetrator (presumably a quite deranged individual), are sensible targets of reformatory efforts. Thus, for both philosophical and pragmatic reasons, Lessig argued that we would do well to shift our attention from bad actors to (morally culpable) facilitators when investigating the problem of institutional corruption.

With these three central concepts in place, Professor Lessig went on to articulate his framework for understanding the problem of institutional corruption. Institutional corruption should not, Lessig argued, be thought of as exemplified by the blatantly unethical and illegal activities of individuals such as Rob Blagojevich. Rather, Lessig argued, distinctly institutional corruption ought to be understood as activities that, despite being in accordance with existing institutional rules, either result in or from some improper influence within that institution's economy of influence that brings about either (1) a weakening of the effectiveness of that institution, or (2) a weakening of the public's trust of that institution.

To illustrate this framework, Professor Lessig went on to discuss its application with respect to the institution that he regards as being most obviously rife with institutional corruption: the US Congress. Describing Congress's economy of influence, Professor Lessig explained the ways in which members of Congress, lobbyists, and the corporate interests that fund those lobbyists have developed a deeply entrenched interdependency (e.g. members of Congress have become reliant on lobbyists for campaign contributions during their time in office, and for employment once they leave office) that results in lobbyists and their corporate sponsors having an undue level of influence on the shape of Congressional legislation. In support of this analysis, Lessig catalogued a wide variety of cases involving Congress giving bad answers to seemingly easy policy questions (e.g. cases involving nutritional standards, copyright extension, global warming), arguing that the only way to make sense of this level of legislative incompetence is by appealing to either idiocy on the part of the legislators (an explanation that Lessig rejects as implausible) or the undue influence of lobbyists and their corporate sponsors. Worse still, Lessig went on, not only has this dependency on lobbyists and their corporate sponsors resulted in Congress being less effective (thus satisfying the framework's first criterion for institutional corruption), but it has also resulted in a severe weakening of the public's trust of the institution (thus satisfying the second criterion). In defense of this second claim, Lessig noted that in his (previous) home district in California, a dramatic 88% of citizens now assent to the claim that "money buys results."

Taking Congress as his paradigm case, Lessig went on to say that the purpose of the Lab will be to determine whether and in what form other institutions (e.g. medical research, education, journalism) are burdened by corruption of this sort. Moreover, beyond the initial stage of identifying and describing instances of institutional corruption, the end goal of the Lab, Lessig proclaimed, will be to provide policy recommendations aimed at eradicating or, at the very least, minimizing the experience.

Finally, returning to the idea of responsibility, Professor Lessig tried to impress upon the audience the idea that they, as members of the University community, were subject to moral obligation to do their part of fighting against this problem of institutional corruption. Because institutional corruption is a wrong most often perpetrated and facilitated by the privileged class, Lessig argued, the members of the University community, as members of that privileged class, are bound by a moral obligation to speak out against it. To fail to do so, he argued, would be to facilitate its existence and, thereby, to render oneself partially responsible for it.

Ryan Doerfler, Graduate Fellow in Ethics 2009-10