January 14, 2008  ·  Lessig

Senator Clinton was given a great opportunity Sunday to explain what she means by “change.” In an exchange on Meet the Press, she was asked about President Clinton’s pardon of Marc Rich. Remember, Rich was the very rich man charged with tax evasion. Rather than fight the charge in court, he fled the jurisdiction. Not all his money fled, however, or at least lots came back — in contributions to the Democratic Party, for example. Hours before leaving office, President Bill Clinton pardoned him.

Here was the exchange:

MR. RUSSERT: You say you’ve been deeply involved in the eight years of the Clinton administration. One of the powers given to a president is the power of pardon. At the end of the president’s second term, he granted 140 pardons, including one to Marc Rich, someone who had been convicted of tax evasion, fraud and making illegal oil deals with Iran. Were you involved in that pardon?

SEN. CLINTON: No. I didn’t know anything about that.

MR. RUSSERT: No one talked to you whatsoever?

SEN. CLINTON: No. No. Unh-unh.

MR. RUSSERT: His ex-wife gave $109,000 to your campaign.

SEN. CLINTON: Well, no one talked to me about it, Tim.

MR. RUSSERT: Nobody?

SEN. CLINTON: Nobody.

Later, Senator Clinton committed to following Justice Department “guidelines on pardons.”

So this is a fantastic area to focus on in defining how Washington would “change” under the new Clinton rather than the old. Indeed, as her husband’s administration was charged with essentially selling nights in the Lincoln Bedroom, and with this, selling pardons, it would have been a perfect opportunity for her to make clear just how different things would be.

In this question, she could have done that quite directly.

First, she could have taken the tough, though possibly right, path of speaking the truth despite how it is perceived. Certainly President Clinton thought there nothing wrong with the pardon. And indeed, when the Prime Minister of a major ally asks the President to pardon someone, especially one who has given so much money to one’s political allies, one could well argue that it takes real courage to actually grant the pardon, given the totally predictable charge that the pardon was bought.

Second, she could have taken the responsive, change signaling path of acknowledging a mistake and indicating how she would do it differently. Giving large donors special access and privilege in an administration is exactly the kind of behavior many say should change. Senator Clinton could easily have marked this as one of the things that would change.

She did neither. Instead, she deflected responsibility, pointed to the Internet, and promised to follow “guidelines.”

Not surprising. But not signaling, imho, “change.”

January 7, 2008  ·  Lessig

Some important news in the continuing struggle to reckon the First Amendment and copyright. For those not following this in depth, here’s the story so far:

In Eldred v. Ashcroft, the Court was asked to subject a copyright statute to First Amendment analysis. The Court declined that request. Instead, the Court held that so long as copyright act does not change the “traditional contours of copyright protection,” further First Amendment review is not required.

That standard left open the question of what the “traditional contours of copyright protection” were. In three follow on cases, lower courts have now addressed the question. In all three of these lower court cases, the government has argued that by “traditional contours of copyright protection,” the Eldred court meant simply the “idea/expression” dichotomy and “fair use.” Thus, the only possible First Amendment challenge to a copyright statute, according to the government, is if the statute changes one of these two “traditional First Amendment safeguards,” as the Court in Eldred referred to them.

Plaintiffs in these three lower court cases have taken a broader view of the meaning of “traditional contours of copyright protection.” Rather than limited to the two “First Amendment safeguards,” plaintiffs have argued that “traditional contours” means, well, traditional contours. That if plaintiffs allege a change in the “traditional contours of copyright protection” implicating First Amendment interests, that change should be subject to First Amendment review.

In two of these lower court opinions, one in the Ninth Circuit (Kahle v. Mukasey) and one in a district court in the DC Circuit (Luck’s Music v. Ashcroft), the courts have agreed with the government. In one of these lower court opinions, (Golan v. Mukasey), the 10th Circuit agreed with the plaintiffs.

This split was the focus of a cert petition (Petition, Reply, Supplemental Brief) to the Supreme Court in Kahle. The government responded (response) that there was no need for Supreme Court to review Kahle, because the “mistaken” decision by the 10th Circuit would be reversed when the Court of Appeals granted the government’s motion to rehear the case en banc.

On Friday, the 10th Circuit denied the government’s motion. But on Friday, the Supreme Court accepted the government’s recommendation not to recognize the split, by denying cert. Thus, though the reason the government offered for not granting cert turned out to be false, cert has not been granted.

There’s no chance the government will allow the 10th Circuit’s decision to stand unreviewed. But while the 10th Circuit opinion is fantastically well done, it is unfortunate, in my view, that the Court did not take the opportunity to resolve the split in the context of Kahle. The issues in that case are clearer; they provide a better context within which to review the meaning of the Eldred rule — indeed, they make the wisdom of the Eldred rule seem obvious.

January 6, 2008  ·  Lessig

Senator Clinton says: “We’re all advocating for change. We all want to change the status quo, which is George W. Bush and the Republican domination of Washington.”

Really? Is that the “change” being called for by Edwards and Obama? Because I heard their call for change to be bigger than this. To be more fundamental. We’ve not made progress if change gets us to a world where lobbyists influence Democrats rather than Republicans. It’s not “change” if we get back to a world where the Lincoln Bedroom goes to a leading Democratic fundraiser rather than a Republican. If the only “change” at stake here is a change in the party in control, then there’s no much to get excited about.

Update: Some have misread this to be a kind a Nader-esque post — that three’s no difference between the Dems and Republicans, etc. I don’t mean that at all. I think there is a hugely significant difference between the DEMs and GOP, and between Obama/Edwards and Clinton, on the single issue that I care most about — whether we will see any progress in reforming the corruption that is Congress.

January 4, 2008  ·  Lessig

“Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans.”

post-NH update:

This was the first of many, before the final in November. As John Edwards put it, “The status quo lost.”

From the “[old] generation of Americans”: “I’m not dead!” (See The Holy Grail, The Dead Collector)

Thank you, Iowa.

January 2, 2008  ·  Lessig

As Reuters reports, Congressman Tom Lantos has been diagnosed with cancer and is retiring from Congress.

Lantos has had an extraordinary career in Congress. A Holocaust survivor and a Hungarian, he has been on the right side of most things in his million plus year tenure in Congress (ok, 26 years). In 2004, I supported his Democratic opponent on the principle that Democrats needed to express their opposition to the war at a minimum by opposing those Democrats who supported the war (and the Patriot Act).

But we are all sorry to hear of Congressman Lantos’ illness, and thank him for his public service.

January 2, 2008  ·  Lessig

It now looks like there’s a very good chance that Iowa will do the American democracy more good tomorrow than any election has done in the last generation.

If the polls are to be believed (or if caucusers turn out according to the polls), then a majority of the Democracts will be voting for a candidate that places fixing the corruption that is Washington at the very top of his agenda. Both Edwards and Obama have made this their core message (Populist hero Edwards more than new generation Obama), and if the majority of Democrats in Iowa ratifying that message gets understood, we may see this election go a long way towards fixing the problem that I think is the single most important problem facing government today.

As I’ve said before, I don’t think this is a Dem/GOP issue. But it is the case that the only credible campaigns attacking it are now from the Democratic side of the isle. The grotesqueness of the last 7 years perhaps leads the GOP to ignore the issue. The allegiance of the establishment Democratic candidate (HR Clinton) leaves an open field for the “less experienced” Obama and Edwards.

But in that charge (“less experience”) lies all the promise of these two reform candidates. If you were asking how best to reform a corrupt Police Department, would anyone think that someone experienced inside the department was likely to be an effective reformer? I’m not saying it’s not possible: Someone living inside that corruption could finally boil over with revulsion at the system that they are living within. Precisely that revulsion is what many of us were looking for Clinton to demonstrate. But we got none of that. Instead, we got a full throated defense of lobbyists. Thus, even if it is possible that an “experienced” politician could reform the system, the experience of HR “Lincoln Bedroom” Clinton is not likely to manifest that zeal for reform. She and her husband prospered from that system. Why would they ever work to dismantle it? She asks in her final 2-minute plea to Iowa: “Who is ready to be president and ready to start solving the big challenges we face on day one?” That’s not the question. The right question is this: “Who sees fixing the corruption that is government as the most important challenge we face on day one, and who is likely to have the will to do it?”

Edwards and Obama are different from Clinton in this respect at least. Both are single term Senators — in it enough to be revolted by the system, both aching to force change upon it. I concede it may be hard for some to choose between them. I think it is a moment of celebration that the Dems have two with this ethic at their core. And while I would not criticize anyone who caucused for Senator Edwards, as I’ve already indicated, my pull for Obama comes not just from knowing him a bit personally, but also from the aching desire that we let, to borrow from JFK, the torch pass to a new generation. Imagine what America looks like from the outside when this mixed race American (a redundancy, to be sure), who opposed this horrible blunder of a war from the start, is sworn in as President. And imagine what America looks from the inside, when all those under 50 see a man who doesn’t actually remember Woodstock defining for a generation those things worth remembering.

It is a hopeful moment. Please, Iowa, make it real.