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The real masters of the universe: The astounding influence lawyers have on U.S. government and policy

Study: How money in politics puts more lawyers in office — and policies biased toward the wealthy in place


Sean McElweeRoberta Barnett
June 12, 2016 5:00PM (UTC)

Author George R.R. Martin once wrote, “Politicians were mostly people who had too little morals and ethics to stay lawyers.” Although we can’t speak to the comparative ethics of lawyers and politicians, it is indeed true that the United States is unique among developed countries in the share of its politicians who have a background in law.

According to data from the Inter-Parliamentary Union Chronicle of Parliamentary Elections compiled by political scientist Adam Bonica, 46 percent of US congress members are lawyers (which is actually slightly low, historically).The country that has the second largest share of lawyers in the national legislature is Chile at 32 percent, followed by Argentina at 25 percent. The average across the 32 countries for which he has data is 15 percent. In Sweden and Japan, 4 percent of politicians in the national legislature are lawyers, and in the Netherlands only 1 percent are. This bias could influence policymaking, help explain the persistent lack of women in office and shift the strategies of both the left and right.

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Lawyers, Lawyers Everywhere

In a new paper to be presented at an upcoming Scholars Strategy Network workshop and obtained exclusively by Salon, Bonica argues that this bias towards lawyers is driven in part by the overwhelming influence of money in politics results in policy biased towards the wealthy. Bonica begins with a jaw-dropping statistic. He finds that,

While comprising 0.4% of the voting age population, there are more lawyers elected to the House than there are representatives from all 24 states west of the Mississippi. Lawyers are even more prevalent in the Senate. In 44 of the past 50 Congresses, lawyer-legislators commanded seat shares large enough to constitute a filibuster proof majority.

One reason is that lawyers are far more likely to run for office. But they’re also far, far more likely to win. Bonica finds, that compared to the average American, doctors are 11 times more likely to run for office, while lawyers are 54 times more likely to run for office. But while doctors are only 12 times more likely to be elected, lawyers are a stunning 99 times more likely to be elected (see chart). Why? Bonica argues that a key to winning elections is early fundraising, and the legal profession is one of the most politically active groups in the country.

SalonLawyers1

Early Money Is Like Yeast

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Using his massive Database on Ideology, Money in Politics, and Elections (DIME) campaign finance database (which includes the political donations of nearly 5% of the population between the period of 1979 and 2012) and the Martindale-Hubbell Legal Directory, Bonica finds that graduates of elite law schools are incredibly active political donors. He writes that, “In recent election cycles, 87,300 lawyers at the top 100 largest law firms have donated nearly $600 million.” The numbers in the table below are quite stunning: a full 69% of Harvard Law graduates are political donors, and they donated on average $31,844 (see table).

SalonLawyersTable1

As the chart below shows, this dominance of lawyers in the campaign finance pool means that graduates of elite law schools are the backbone of early fundraising. This early fundraising is key. As Bonica notes,

A simple model that assumes that the candidate who raises the most money will be victorious correctly predicts the winner in 79% of contested primary contests. By comparison, a model based on candidate characteristics commonly used as measures of candidate quality—such as having previously held elected office, education, and occupational background—while controlling for ideology and district-level characteristics correctly predicts the winner in only 58% of contests.

SalonLawyers2

Lawyers rely on their professional networks to gain a huge early fundraising advantage. Bonica notes,

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Lawyers consistently outperform other candidates in fundraising during the initial months of their campaigns. Lawyer-candidates raised an average of $96,098, more than double the $44,012 raised on average by non-lawyers. Graduates of elite law schools performed even better, raising on average $145,726. In contrast, candidates without four-year college degrees raised an average of $27,862.

While it’s true that lawyers have always dominated American politics (indeed, after compiling data across 114 congresses, Bonica finds, lawyer-legislators have averaged 62% of seats in the House and 71% in the Senate). But he argues that though there is a relationship between the number of lawyers in a country and the share of lawyers in politics, the United States is a dramatic outlier. Though the share of lawyer-legislators has declined, Bonica argues it would have declined further without the unique campaign finance advantage lawyers enjoy.

The Unheavenly Chorus Speaks Legalese

The number of lawyers in American politics has implications beyond fundraising. Bonica argues that the overrepresentation of lawyers could partially account for the underrepresentation of women. Bonica notes that, “lawyer-legislators, from both parties, are far less likely to be women than legislators from other backgrounds.” Nicholas Carnes, a political scientist at Duke, has studied the voting behavior of politicians based on their occupational background and finds the underrepresentation of workers, and the overrepresentation of lawyers and businesspeople shifts policy to the right. He argues that increasing the share of workers in Congress would lead to more representative outcomes. In his book, White-Collar Government, he finds that cities nationwide would spend $22.5 billion more on social assistance programs if their councils were as diverse across occupation as their constituents. Regarding lawyers, he tells Salon,

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They're professionals (so they benefit from things like lower income taxes, and they're less likely to benefit from a wide range of social safety net programs), but they also benefit from many kinds of government regulations (helping people navigate a complicated regulatory environment is what attorneys do, after all, and many of them see the virtue of the regulations), so they wind up in between business owners (who generally favor getting government out of the way) and workers (who generally favor an active role for government in economic affairs).

As the chart below (source) shows, lawyers are towards the middle of the ideological spectrum based on two measures of ideology. Workers, on the other hand, are far more progressive.

SalonLawyers3-2

Earlier research by Adam Bonica, Maya Sen and Adam S. Chilton finds that lawyers on average tend toward the center-left in ideology, making them more liberal than the general electorate. They suggest that lawyers may favor governmental regulatory measures and legal complexity because they create legal work rather than because they are a component of liberal ideology. Our analysis of the General Social Survey suggests that on the issue of the size of government, lawyers don’t have preferences that differ from the general public. They are slightly less likely to think that the government spends “too much” on welfare and slightly more likely to reject the idea that “blacks should overcome prejudice without favors.”

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However, on some key issues, elites may indeed hold views that differ from the general population. A 2015 study examined the distributional preferences of elite Yale Law students and found they were more libertarian than the general public. When compared with respondents to the American Life Panel (ALP), which represents a broad cross section of Americans, Yale Law students overwhelmingly favored efficiency over equality: almost 80 percent of Yale students favored the former, compared with under 50 percent of ALP respondents. This is true even though Yale Law students overwhelmingly identify as Democrats. When elite lawyers enter politics, their preferences for efficiency over equality, which differ markedly from the American electorate, can influence the way they create policy. The study suggests that these preferences may have a particular influence over distributive issues, including tax policy.

A 2009 study from law professor Brian Fitzpatrick supports this idea with his examination of merit selection of judges, a process by which members of the bar, rather than the electorate, choose judges. In his analysis, when attorneys have more power over the judicial selection process, preferences of the bar prevail. Despite lawyers’ status as high-earning professionals who might be more politically conservative, lawyers benefit professionally from a system of economic regulation. It comes as no surprise that judges selected “on merit,” tend to be more liberal than their corresponding popularly-elected state legislative bodies.

In an interview with Salon Bonica notes that the problem has less to do with the specific attitudes of lawyers, than of legalistic solutions. He points to the drug wars, “Lawyers are probably more inclined to favor a legalistic solution, such as criminalizing drug possession and leaving it to the courts. Health care professionals, on the other hand, might be more inclined to view the problem as a public health issue.” He also notes that, “The practice of law is first and foremost a business. The top law firms are now structured almost exclusively to service wealthy clients and corporations.” The chart below shows that the share of lawyers in the legislature correlates strongly with incarceration rates and top income shares.

SalonLawyers4

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It’s likely that the bias towards lawyers also affects how the conservative and progressive coalitions seek to change policies. On the left, litigation is frequently seen as a tactic to achieve progressive outcomes (though some have argued litigation is overrated). On the right, big donors like the Koch Brothers pour millions into organizations like the Competitive Enterprise Institute, which pursued a litigation-based strategy to overturn the Affordable Care Act. Indeed, though it may seem normal that all the members of the Supreme Court now come from legal backgrounds, historically, this is quite anomalous. Chief Justice Earl Warren, for instance, was the Governor of California before joining the court and Hugo Black an Alabama Senator. The result is that decisions about issues like campaign finance are no longer written by people with experience holding office, but by a former corporate lobbyist.

More Workers, Fewer Lawyers

What can be done to reduce the influence of law over politics, and increase the share of workers in office? First, it’s important to understand the depth of the problem. While lawyers have a significant fundraising advantage, workers have numerous disadvantages (as noted above, those with an elite law degree raise five times as much as those without a four-year degree). In a recent study Carnes showed that party gatekeepers express bias towards blue-collar workers who could hold political office. Thus, while lawyers have strong networks of donors to strengthen their chances, workers faces huge disincentives and are unlikely to have numbers of wealthy and politically-engaged friends to back their run. In a paper that will also be presented for the first time at the upcoming workshop organized by the CUNY Graduate Center Political Science Department, Yale University, and the Scholars Strategy Network and obtained exclusively by Salon, Carnes argues that while initiatives like public financing can help increase the number of worker legislators, more drastic actions are needed. He argues for an organization like EMILY’s List (which raises money to support pro-choice women), that would provide seed funding for worker-legislators. A candidate like Bernie Sanders, who has raised concerns about the overwhelming influence of the rich, may be in a good position to advocate for such an organization.

When people think of big donors and the donor class, the stereotypical image is a big businessman, but in reality, it’s far more likely to be a lawyer. When people think of a politician, someone who spent their life as a blue-collar worker rarely comes to mind. We’re only beginning to discover the ways that this distorts our politics.

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Sean McElwee

Sean McElwee is a Salon contributor and a policy analyst at Demos Action. His writing may be viewed at seanamcelwee.com. Follow him on Twitter at @seanmcelwee.

MORE FROM Sean McElwee

Roberta Barnett

Roberta Barnett is a New York-based writer and recent graduate of Columbia University. Follow her on Twitter @rbtastic

MORE FROM Roberta Barnett

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