October 15, 2007  ·  Lessig

As I think through this issue of corruption, I am brought back again and again to the differences in an institution’s sense that the rules should be followed. For example, the great thing about the Supreme Court — an institution I would criticize on substantive grounds in lots of contexts — is that the culture of the place is that people follow the rules. Perhaps clerks do more of the writing than one would want, but the institution is basically doing what the framers imagined it would be doing. And it does so with everyone in that institution following the rules. Compared, for example, with the FCC, where the staff apparently thinks following the rules is just an option, not a requirement, in my experience at the Court, no clerk would ever have had any contact with a party to a case, or discuss the proceedings of the court during the time it is considering a case. The difference, again, as I argue in Corruption vAlpha, is one of culture.

So then this story about the Texas legislature is just perfect in making the same point. The point is not really about the significance of the act. It is about the culture it reveals. There is a plain rule the prohibits what you will see in this video. The Texas legislature is a culture where the rules apparently don’t matter.

Thanks to Laurie for linking me to this via BlacklistedNews. Also directly related: Elizabeth Williamson’s piece in the Post: Getting Around Rules on Lobbying. Thanks to friends who sent the link to make sure I saw this.

  • http://sethf.com/ Seth Finkelstein

    Well, it’s not false, but there’s a problem with focusing too much on “culture”. It leads to very easy and trivial sermonizing about “We must change the culture”, where one preaches and moralizes in generalities. Then everyone nods their head, says “Amen”, and nothing happens. I suppose the question is HOW are you going to change the culture? “I’m going to proclaim very loudly that it must change” is generally a poor answer, especially if the speaker is not in a position of high respect within the culture they are seeking to change.

  • Dave Latham

    That is a travesty.

  • http://www.cs.cmu.edu/~sleator Danny Sleator

    Here’s another excellent illustration of the breakdown of the rule of law. Glenn Greenwald has been writing extensively about violtions of the FISA law by the telecom companies, and the current move to give them amnesty for their lawbreaking. See, for example, http://www.salon.com/opinion/greenwald/2007/10/15/amnesty/index.html (also see the 3 or 4 blog entries prior to this).

    What Glenn seems to be most pissed about is the way that the beltway media establishment has come out strongly in favor of giving them amnesty. Note that this lawbreaking began well before 9/11.

  • http://creativecommons.org Glenn

    Painful to watch. Good piece though, esp. for local news.

    I think I agree with Seth’s point: How do you change this behavior? Shaming doesn’t work that well on the shameless, and voters are unlikely to throw out all incumbents if all incumbents behave in this manner. What’s the fix?

  • B. Dewhirst

    With regards to the SCotUS, I’ve recently been following Follow the Money, by John Anderson. It touches on the Bush v. Gore recount… and I think the signs point to Baker exerting some inappropriate influence on that decision.

  • Jardinero1

    I live in Texas and I don’t have a problem with it. It’s called proxy voting and many organizations which allow voting also allow voting by proxy. The Texas legislature meets briefly but once every two years, special sessions excepted. Thus, there is a great deal of work to do in a very compressed timeframe. My suggestion would be to eliminate the rule prohibiting proxy voting rather than attempt to enforce it.

  • DS Dan

    There is an interesting article about which laws are enforced and which are ignored by Tim Wu in Slate.

    “This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we’ve decided to tolerate lawbreaking and let a law—duly enacted and still on the books—lay fallow or near dead.”

  • http://twitchgamer.net Jordan Hatcher

    Heck, during Sam Johnson, LBJ’s father, time in the Texas house, lobbyists would sit at the desks and cast votes for legislators. This is an improvement. You mention that the Supreme Court “is basically doing what the framers imagined it would be doing.” These legislators are doing exactly what the framers of the Texas Constitution imagined they would be doing. The Texas Constitution is completely based around the idea that all of the government is messed up, which is why we only let them meet once, for six months, every two years, why we have a weak governorship, and frankly why we consistently end up with weak statewide policy. We also have a constitution that has to be amended virtually every election cycle for some reason because it is so obtuse and overly complicated that my guess is that the Texas government needs to routinely bend or break it just to function.

  • Daniel Freiman

    It seems like members are following the rules of the Texas House, even if they’re not following the written laws, and the same set of rules seem to be known and respected by all involved. If I remember correctly, that’s the main purpose of written laws. (I’m making the dangerous assumption that if people were proxy voting against a member’s wishes that something would have been done to stop this ad hoc system. Also that absent members have an opinion and aren’t just giving up their vote to the fastest hand.) This may bring up issues of transparency and accountability, because voters are not aware of the rules of government and may not be able to confirm that their voices are being heard, which could be a prerequisite of corruption and make it harder to prove if there is corruption, but I’m not sure I’d call a culture corrupt simply because they seemed to have skipped a step of officially repealing an internal rule.

  • http://blog.wachob.com Gabe Wachob

    I visited my state representative in the California state legislature (assembly and senate) and was told that this behavior (pressing your neighbor/friends buttons) was a common practice (though perhaps less common than it used to be).

  • http://betsson24.net betsson24

    How do you change this behavior? Shaming doesn’t work that well on the shameless, and voters are unlikely to throw out all incumbents if all incumbents behave in this manner. What’s the fix