Comments on: focus http://www.lessig.org/2008/06/focus/ Blog, news, books Wed, 08 Feb 2017 10:59:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: Sarah http://www.lessig.org/2008/06/focus/#comment-12678 Thu, 10 Jul 2008 13:48:41 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12678 The honeymoon is over. Now we have to decide whether the real, imperfect Barack Obama–the one who leaves toothpaste in the bathroom sink, sometimes flirts with other women at parties, and doesn’t tell us everything he’s thinking–is still the one we want to be with. Given the alternative.

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By: Andrew Garland http://www.lessig.org/2008/06/focus/#comment-12677 Sun, 06 Jul 2008 02:57:00 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12677 The Government went to the telecom companies with a request/demand. The telecom companies cooperated.

I can see possibly being angry with the Government, but why put the telecom companies in the middle? The Government has many ways to be coercive, and completely regulates the actions and business of the telecom companies.

Suing the telecoms for complying presumes that there is a punishable requirement to oppose a government order/request if it would later work out that the Government did something illegal. How could the telecoms know at the time?

If a bank robber coerces the bank manager at gunpoint to open the safe, should the bank manager be sued later for complying?

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By: JohnHill http://www.lessig.org/2008/06/focus/#comment-12676 Tue, 01 Jul 2008 21:27:30 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12676 Larry,
the ends don’t justify the means, but i guess for the left they do (and then you stand for nothing)

I was really pulling for you and the ‘change congress’ project, but that is a very lukewarm slap down of Obama and the money game game.

Now that Obama is raising unlimited amounts of money for the Denver DNC conference where does it end?

sacrifice pawns? what kinda of BS is that? either stand for something or sit down and shut up

Shame on you

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By: anon http://www.lessig.org/2008/06/focus/#comment-12675 Tue, 01 Jul 2008 03:47:10 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12675 I think you need to articulate why it is ok to give Senator Obama a pass now but why congresspeople should take the CC pledge and risk defeat. Which, of course, is a larger question of when the best is the enemy of the good. In your cyber hat you’ll editorialize against the orphan works compromise but in your corruption hat you’ll apologize for Obama? These two positions seem to be in conflict and its hard to understand from your posts how your world view permits two very different outcomes. Do you think getting Obama elected is the best way to further the cause, or do you just think that the cc cause is not the most important one in the election. If it is the former, how exactly does that happen once he is elected? What is the CC agenda? If it’s the latter, than as leader of the movement, you should just come right out and say so.

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By: Dan http://www.lessig.org/2008/06/focus/#comment-12674 Sat, 28 Jun 2008 07:14:36 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12674 Final reply to Non Auth:

The ultimate point here is, do you believe there is a significant difference between Obama and McCain? There is no question in my mind that the difference is profound, and that McCain would be a disaster while Obama would be an improvement, if perhaps imperfect. No doubt whatsoever.

That is the sole criterion behind my vote for Obama. It’s enough to make a clear determination in my mind.

All the rest is just nuance below the resolution of my vote, and does not enter into my vote.

All the messaging you are talking about in your vote is not going to get through to anyone. What I suggest is that if you have messages to send, them them to Obama’s administration after he’s elected by phone and/or email or whatever other communication methods you prefer (but it’ll be more effective if you choose the communication methods that the admin prefers). I’m sure we’ll all have a lot to say then, and I expect that the Obama admin will be much more amenable to listening to the little guy than a McCain admin.

Keep the messaging and the voting separate. They are meant for different purposes. Voting is a crude system of preferences, and trying to use this bludgeon to communicate nuanced messages is futile.

If you really don’t want Obama to be president (and really prefer McCain to be elected), then don’t vote for him, but I have a hard time identifying with that sentiment, and a non-vote for Obama is half a vote for McCain (i.e., one McCain vote not neutralized that could have been neutralized). All you will accomplish by not voting for Obama is to make it that much more likely that McCain will be elected.

It’s marginal, to be sure, but every other vote is equally marginal, and margins add up. Drops of water add up to oceans. Don’t be under the illusion that your vote doesn’t count. It counts as much as any other, and only collective action can make a difference.

Don’t be a solipsistic individualist. Your individual vote is not exceptional in any way. It is one drop in the ocean, and the ocean needs every drop.

PS: Under the current voting structure, third party candidates simply have no chance. Votes for them are wasted unless you *really* have no preference between the two major candidates. But I suspect very few people really have no preference when it comes to Obama/McCain. Nader is just wrong here, sorry to say, when he says the two parties (and candidates) are not significantly different. That line does not fly for me.

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By: Daniel Berninger http://www.lessig.org/2008/06/focus/#comment-12673 Sat, 28 Jun 2008 00:01:53 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12673 Continuing the fight on the FISA issue represents a perfect opportunity to show Obama plans to Change Congress. Rolling over means nothing has changed and Barack loses my very enthusiastic support.

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By: Tmack http://www.lessig.org/2008/06/focus/#comment-12672 Fri, 27 Jun 2008 08:26:53 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12672 What is wrong with most of the commentors here?
If you have libertarian values, like Brian Greer thinks he does, under no circumstances can you even think of voting for Obama.
It is Bob Barr, or John McCain or out.
Brian if you think you are a libertarian or have libertarian values while plan on voting for Obama, under any circumstances, you need to, seriously, get your head checked. That or stop taking whatever drugs your taking.

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By: Brian Greer http://www.lessig.org/2008/06/focus/#comment-12671 Fri, 27 Jun 2008 03:28:31 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12671 I have tended to vote in line with the Libertarian party for the past 12 years and had been compelled to give Obama my vote in November due to the way he has carried himself, conducted his campaign, and the general sense of conducting government business in a new way. If he does not do everything he can to stop this FISA bill from clearing the Senate (meaning it is ok for him to fail, but I need to feel like he has done everything he possibly could), you can bet that I won’t vote for him in November. Not that I would vote for McCain, because that will never happen, but I won’t leave my Libertarian values for someone who talks a good fight but isn’t prepared to actually take that stand.

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By: Brad Templeton http://www.lessig.org/2008/06/focus/#comment-12670 Thu, 26 Jun 2008 05:48:11 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12670 One can not fight every battle.

But one can not use “one can not fight every battle” as an excuse to not fight the core battles, defending the constitution, like officials swear an oath to do. This is the 4th amendment requirement for warrants they are tearing up, this is the checks and balances that allow judges to oversee when the executive branch wants to trample on rights which will be abandoned.

One can fight every battle over the core parts of the bill of rights. One should.

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By: Non Authoritative http://www.lessig.org/2008/06/focus/#comment-12669 Thu, 26 Jun 2008 04:31:00 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12669 Dan,

I hear your message loud and clear, and ask you to consider the following:

1. If elected President, Barack Obama would have direct control over the Executive branch, and only indirect influence over the Legislative. This means that his policies and positions on issues like health care, education, the environment, etc. are nice to know but less important than his example, voting record, etc on matters under the control of the DOJ, foreign affairs, military, etc. Remember, the Clintons couldn’t get health care through Congress so I don’t put a lot of weight on Obama’s views on the matter either. And please pay attention to Obama’s votes on placing justices on benches and in courts.

2. Germane to the above: in order to accomplish even a modicum of his platform, Obama will need a sympathetic Congress. The work he does to get progressives elected will reflect well upon him. On the other hand, stumping for conservative incumbents like Barrow-GA over progressive challengers (remember his support for Lieberman over Lamont?) will reflect negatively.

I’d love to live in an IRV system – wow, how much subtle information you would glean from voting records. But we don’t. And I’d hate to help elect Barack Obama, giving him the impression that i agree with his policies. If Obama loses because he can’t energize the voters (Democrats, progressives, etc.), it’s not /our/ fault for not voting for him. The responsibility lies with him and his campaign, which may (in the general campaign) be making it clear progressives may be shut out of an Obama administration. Organizing to put pressure on a sitting President is /way/ too late in the game.

Prof. Lessig asks us to “focus” on the goal of electing Barack Obama. I don’t agree. We’ve too often put short term goals (a single election) ahead of the need to make it clear to the Democratic candidates that they cannot win elections without progressive voters. Trolling for votes among “conservative independents” or the non-existent “center” was a losing strategy for Gore and Kerry, and will lose Obama the election as well. If that means we get McCain as president, well … to quote LL above, “loud and clear opposition [will be] our duty”. No less than under an Obama administration.

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By: Tmack http://www.lessig.org/2008/06/focus/#comment-12668 Thu, 26 Jun 2008 02:31:15 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12668 “(Or I’m assuming it’s complex, since how else can you explain losing twice (ok once) to this President.) “

Why do you think your so smart Lessing? Your still in school, dealing with a bunch of students who you lwill decide what grade they get, given them an incentive to tell you how “smart” you are. Your arogance in writing that, like Gore’s sighs in the debates, reveals what arrogant schmucks you really are, and you don’t have clue one about it.
I don’t like Bush, but I can’t stand you, and by extension, Obama.
My vote will be for McCain or Barr, never Obama.
Jerk

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By: Tmack http://www.lessig.org/2008/06/focus/#comment-12667 Thu, 26 Jun 2008 02:30:12 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12667 “(Or I’m assuming it’s complex, since how else can you explain losing twice (ok once) to this President.) “

Why do you think your so smart Lessing? Your still in school, dealing with a bunch of students who you lwill decide what grade they get, given them an incentive to tell you how “smart” you are. Your arogance in writing that, like Gore’s sighs in the debates, reveals what arrogant schmucks you really are, and you don’t have clue one about it.
I don’t like Bush, but I can’t stand you, and by extension, Obama.
My vote will be for McCain or Barr, never Obama.
Jerk

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By: Dan http://www.lessig.org/2008/06/focus/#comment-12666 Thu, 26 Jun 2008 02:00:43 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12666 To Non Auth:

One can send messages without necessarily shooting oneself in the foot. Voting is a crude way to do it, because no one can ultimately tease apart the various reasons people vote for one candidate or another (note: specific issues often have little to do with it, in the real world of real voters’ brains). We don’t get to attach “signing statements” to our votes to help others interpret them. There’s no way to indicate that the reason one voted for X was that “Y betrayed us on issue-Q”. The message will not get through, realistically.

A single email or phone call might actually have more focused effect than a single vote. A bulk of constituent communications might have more focused impact than a bulk of undifferentiated votes.

In any case, until this FISA bill comes up in the Senate, statements by a senator about a House bill are suggestive at best. The real test will come when the senate considers it (and if there are any changes to it at the outset, depending on who introduces it), and how strongly Obama fights the disgusting telco immunity provisions.

The idea of “sending messages” with one’s vote has always seemed peculiar, especially as return-channel communications begin to open up in the policy-making realm. The vote is about one’s preferences, no more, no less. Do you prefer Nader to Obama? Then vote for Nader. But be aware that in the current voting structure the only votes that will really count this time around will be votes for Obama or McCain.

If you really think that abstaining from *that* choice is useful, in order to “make a statement” with your vote, then you are missing profound differences between the two major candidates, differences that make a tremendous difference to the future of the country.

If we had instant-runoff-voting (voters indicate a full preference order for all candidates on the ballot, with elimination rounds until the final two candidates left receive full representation of preferences by all voters who choose to indicate a preference), then I might well vote for Nader and then Obama. So if Nader is eliminated early on, I still get a vote in the final matchup between O and M.

But we don’t (yet?) live in such a system, and so we must choose based on the exp[ected outcome of the process before us now.

For my part, the price of opting out of the O/M decision simply to “make a statement” is way too steep. There are other ways of making statements, and we can mobilize grass roots groundswells after Obama is elected, but doing so under a McCain administration puts the wind too strongly against us.

Until Obama is elected, he still has limited executive power (i.e., Bush still runs the administration and can still veto bills he doesn’t like), and even as a senator he is still just one of 100 no matter how much informal influence he might begin to wield (what levers does he really have to impact other senators’ votes?).

Politics is a dirty business, and one where in our society there is still a complicated distribution of power. Don’t expect too much from Obama while he is not yet in the executive role itself. He is *not* yet in the bully pulpit, so don’t start expecting him to already be acting as if he were.

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By: Percy http://www.lessig.org/2008/06/focus/#comment-12665 Thu, 26 Jun 2008 01:21:01 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12665 Being one of Senator Obama’s constituents in Illinois, I sent him an e-mail expressing my disappointment in the recent turn of events regarding FISA. He had this to say in reply:

Thank you for contacting me concerning the President’s domestic surveillance program. I appreciate hearing from you.

Providing any President with the flexibility necessary to fight terrorism without compromising our constitutional rights can be a delicate balance. I agree that technological advances and changes in the nature of the threat our nation faces may require that the Foreign Intelligence Surveillance Act (FISA), enacted in 1978, be updated to reflect the reality of the post 9/11 world. But that does not absolve the President of the responsibility to fully brief Congress on the new security challenge and to work cooperatively with Congress to address it.

As you know, Congress has been considering the issue of domestic surveillance since last year. Just before the August recess in 2007, Congress passed hastily crafted legislation to expand the authority of the Attorney General and the Director of National Intelligence to conduct surveillance of suspected foreign terrorists without a warrant or real oversight, even if the targets are communicating with someone in the United States. This legislation was signed into law by the President on August 5, 2007.

As you are aware, Congress has been working on reforms to FISA. On November 15, 2007, the House of Representatives passed H.R. 3773, the “Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007” (RESTORE Act) by a vote of 227-189. The House bill did not provide retroactive immunity for private companies that may have participated in the illegal collection of personal information, nor does it provide immunity for Administration officials who may have acted illegally.

On February 12, 2008, the Senate passed S. 2248, making its own reforms to FISA. During consideration of this bill, I was proud to cosponsor several amendments, including the Dodd-Feingold amendment to strike the immunity provision, which would have enhanced privacy protections while maintaining the tools to fight terrorism. However, with the defeat of this amendment, the bill did not provide for a mechanism that would allow the American people to learn exactly what the Bush Administration did with its warrantless wiretapping program and provided for no accountability.

The House and Senate worked out a compromise, reconciling differences between the two versions of the bill before it can be signed into law. While I recognize that this compromise is imperfect, I will support this legislation, which provides an important tool to fight the war on terrorism and provides for an Inspectors General report so that we can finally get to the bottom of the warrantless wiretapping program and how it undermined our civil liberties. However, I am disappointed that this bill, if signed into law, will grant an unprecedented level of immunity for telecommunications companies that cooperated with the President’s warrantless wiretapping program, and I will work with my colleagues to remove this provision.

The American people understand that new threats require flexible responses to keep them safe, and that our intelligence gathering capability needs to be improved. What they do not want is for the President or the Congress to use these imperatives as a pretext for promoting policies that not only go further than necessary to meet a real threat, but also violate some of the most basic tenets of our democracy. Like most members of Congress, I continue to believe that the essential objective of conducting effective domestic surveillance in the War on Terror can be achieved without discarding our constitutionally protected civil liberties.

Thank you again for writing. Please stay in touch as this debate continues.

Sincerely,

Barack Obama
United States Senator

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By: Sina Kay http://www.lessig.org/2008/06/focus/#comment-12664 Wed, 25 Jun 2008 04:38:17 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12664 Ben,
The federal government does enjoy immunity from suits brought against it by her citizens. This derives from English common law (“the king can do no wrong”). Therefore, to sue the federal government, the U.S. has to waive its immunity. I don’t know much about federal sovereign immunity, but the two major waivers that I’m aware of are the Federal Tort Claims Act and the Tucker Act.
The Federal Tort Claims Act is packed with important exceptions including but not limited to the discretionary function exemption and exceptions for any claim arising out of the “combatant activities of the military or naval forces, or the coast guard, during times of war.” Again, my knowledge is limited, but I remember hearing that the discretionary function test is pretty broad, and comes down to a basic two part test. First, there has to be an element of choice or judgment and second, that judgment has to involve considerations of policy designed to be shielded from tort action.
Assuming all that is accurately stated, that does not set up a pretty picture for someone looking to sue the federal government.
Also, your argument about the telcom companies is slightly circular. If they are to act in profit-maximizing ways, then providing tort liability incentivizes a system in which the telecom companies can profit maximize by protecting privacy. Otherwise, their incentive to protect privacy is limited to customer satisfaction. But if the federal government successfully convinces/coerces most of the telecom companies to give up customer info, then this incentive is limited (because customers can’t switch to a better, privacy protecting company). Given the high costs of entry into the highly regulated telecom industry, I wouldn’t place any bets on newcomers who promise to protect privacy. Consequently, tort liability seems like a solid way to incentivize privacy-protecting behavior.
Corporations are a crucial and necessary part of modern society. They do well what they’re designed to do: profit-maximize. But they maximize these profits within the legal parameters set up by the law. If these parameters create sub-optimal outcomes (privacy violations), then it’s up to the government to structure incentives and legal parameters that encourage optimal outcomes.

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By: Non Authoritative http://www.lessig.org/2008/06/focus/#comment-12663 Wed, 25 Jun 2008 04:21:06 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12663 Pete, Sina,

You both are confusing a vote against Barack Obama with a vote for John McCain. Progressive voters can actually send a message loud and clear to the Democrats that leaning -right- is not in fashion by voting for a more progressive alternative like (in the primary) Dennis Kucinich or John Edwards; or in the general election, for Ralph Nader or Cynthia McKinney. If Obama loses because these candidate received a large number of votes in important states, maybe then the Democratic party will learn to court progressive voters in the general election instead of fishing for votes from the putative (and arguably non-existent) “center”.

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By: Ben Curtis http://www.lessig.org/2008/06/focus/#comment-12662 Wed, 25 Jun 2008 03:36:20 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12662 It occurs to me that the FISA bill may solidify any legal action directly against this government (or the persons responsible within it), while preventing the substantial cost of litigation against the telcos from being passed on to the consumer. Telcos do not get a free ride, unless the government gives them a piece of paper that says “It was our idea,” and signed by the various government officials who actually ordered the spying.

Yes, the telcos went along. I wish we had good solid laws that made it clearer for corporations to more consistently do the right thing, because they are a faceless, amoral bunch driven only by their legal obligation to seek profit for their shareholders. But keep in mind that if the warrantless wiretaps were legal, then suing the telcos would achieve nothing; if, on the other hand, the program was illegal, then now we (the People) have signed confessions from the government officials in charge.

In this program, the telcos were pawns. They certainly didn’t do it for the money, since the government is far overdue in paying them for these services. I like the idea of leaving the telcos alone, and going after the true root of the issue. I think the compromise, possibly, might turn out to be entirely in our favor.

Unless, of course, I know nothing of some immunity that the government has when it acts against its own citizens…

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By: Pete Tiarks http://www.lessig.org/2008/06/focus/#comment-12661 Tue, 24 Jun 2008 23:32:16 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12661 You’re right: I am being very sweeping in lumping this into a bigger “national security” narrative, but I’m not sure that’s illegitimate. When Lessig says “the objective of this chess game is to keep focus on the issues that show America why your candidate should win”, or when you say “he’s also facing rough and tough allegations of being “naive” about foreign policy — opposing FISA would be fodder for the McCain”, I get the sinking feeling that challenging the current administration’s thinking on foreign policy and civil liberties is still seen as something you have to pay a price for doing in terms of “political capital”, rather than just the opportunity cost of the hours spent.

I also think you can probably find a happy medium between supporting the bill in the Senate and being the “champion of the cause” against it. I’m not saying that this is the platform that Obama should run on, but he could still vote against it, state his reasons for doing so and get a few staff to stockpile arguments for why it was the right move if the McCain campaign tries to come after him on it. I just have trouble with the idea that the details of exactly what the telcos were doing for the executive branch is something that a guy running on a platform of “The War on Terror is Great” (and not a lot else) wants to bring into the light for twelve rounds of bruising political combat, but I’m outside the fishbowl looking in, and so maybe that’s just me being naive.

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By: Sina Kay http://www.lessig.org/2008/06/focus/#comment-12660 Tue, 24 Jun 2008 22:16:59 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12660 Thanks for the response Pete. First and most importantly, I meant “the McCain camp.” That aside, I see what you’re saying, but I’d challenge you to be more precise. It’s not that Obama is or would “let Republicans have their way on National Security.” That’s a pretty broad and sweeping statement. We’re talking about tort immunity against telecom companies. This undoubtedly violated people’s rights, but the ultimate remedy is not damages — dollars don’t compensate people for having a government that makes them feel insecure in their homes and communications. The best remedy is to have an administration more committed to civil rights and liberties, an administration led by someone who praised Boumediene, not its dissenters.
So yeah, he didn’t take the hours or days to filibuster tort immunity for the telecom industry. But I’m not convinced doing so would have been time well spent for someone who is running for president. There is money to be raised, policies to be planned, speeches to be made, strategies to be devised. We’re criticizing Obama’s actions as a senator, with little sensitivity to the fact that he is a presidential candidate. Like you, I disagree with the tort immunity freely afforded to the telecom industry. However, I don’t think it follows that Obama had to be the champion of this cause. In fact, as I said before, doing so would have been recklessly endangering the Queen for a pawn (to borrow from Prof. Lessig’s analogy).

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By: Pete Tiarks http://www.lessig.org/2008/06/focus/#comment-12659 Tue, 24 Jun 2008 21:51:47 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12659 Sina,

“I hope you would still agree that “now I’m not voting for him” is a non sequitur. Abstaining, or voting for McCain, signals to the country that center or left-leaning policies are not in fashion.”

Obama’s made his move, and I think it’s the wrong one and that’s sad, but what’s done is done. Sadly, I’m English/Australian and so don’t have a vote, but I get the point. Voting for McCain on this basis would be like all those Hillary supporters who were supposedly going to vote McCain so that he could… get Roe vs. Wade overturned? There’s no point in cutting off your nose to spite your face.

My argument is more addressed towards Lessig’s “chill out” strategy, or his reasons for recommending it. The idea seems to be that you let the Republicans have their way on National Security, which hopefully keeps that quiet, and argue about other things. I think Obama can do better than that. In a weird sort of way, it’s the lack of political ambition that bothers me here.

Also, do we really need to feed John McCain’s sense of his own importance by calling him “the McCain”? :)

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By: Sina Kay http://www.lessig.org/2008/06/focus/#comment-12658 Tue, 24 Jun 2008 21:13:29 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12658 Pete,
Great points, and I largely agree. But it is also a matter of calculation. Right now Obama is working to create an image of himself as a post-partisan uniter. Senate fillibusters of a bill unfortunately passed by both parties would open him up to a lot of shots. He’s also facing rough and tough allegations of being “naive” about foreign policy — opposing FISA would be fodder for the McCain.
But let’s say I concede those points, and we agree that it was a miscalculation. I hope you would still agree that “now I’m not voting for him” is a non sequitur. Abstaining, or voting for McCain, signals to the country that center or left-leaning policies are not in fashion. It hints to the next Dem that supporting FISA is not enough — maybe the next Dem will feel like she has to support even the Patriot Act before becoming viable. That’s not a message I’d like to send and so I’m voting for Obama, even though I disagreed with FISA, not public financing, and especially his support for corn subsidies.

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By: Pete Tiarks http://www.lessig.org/2008/06/focus/#comment-12657 Tue, 24 Jun 2008 21:02:34 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12657 David,

Fair enough, I badly over-stated the simplicity of the argument he’d have to make, and you’ve got me on that.

But does that automatically mean that holding out on immunity would have been the political loser that everyone seems to think it would have been?

As I see it, he question isn’t whether his approval of the other elements overcomes his worries about retroactive immunity, it’s whether, by holding out, he ends up with a better bill down the line and an issue where he can make the Republicans look corrupt and incompetent, or the same bill and a bloody nose from a fight that makes him look weak on national security.

You and Lessig seem to be saying that the second scenario is more likely – if he takes them on about telecoms immunity, he’ll lose. I want to know why you both think that’s the case.

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By: David desJardins http://www.lessig.org/2008/06/focus/#comment-12656 Tue, 24 Jun 2008 19:14:52 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12656 @Pete Tiarks: Obama doesn’t say “this bill does nothing to fight terrorism” because he doesn’t believe that. Isn’t that a good reason for him not to say it?

What he’s said (consistently for many months) is that he’s against telecom immunity, and he’s against the lack of judicial oversight in the Bush/Rockefeller bill that passed the Senate in February, but he favors the main elements of the current FISA compromise, the expanded powers together with judicial oversight.

You can argue that he should oppose the bill because the opposition to telecom immunity should overcome his approval of the other elements of the bill. But that’s a very different argument than to say there is nothing good in the bill. And, in my mind, the provisions of the bill that apply to future activities are way more important than the immunity element. I was much more concerned about the lack of oversight in the Rockefeller bill, than I was by retroactive immunity. And we got big improvements on that.

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By: Pete Tiarks http://www.lessig.org/2008/06/focus/#comment-12655 Tue, 24 Jun 2008 18:47:47 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12655 Sina,
I think you’re looking at this the wrong way. When you use phrases like “spending his political capital” there’s an implicit assumption that granting FISA imunity is a big political winner, and that, had Obama decided to go the other way on it, he’d have taken huge damage from the Republicans making him look soft on national security.

That’s a very pessimistic view. The objective reality is that telecoms immunity ain’t gonna do shit to help fight terrorism, but will help a lot of lobbying groups, and that doesn’t look like a bad issue to take a stance on to me. And he doesn’t have to make a big deal out of it. Just voice your opposition, make a statement about how this bill does nothing to help fight terrorism and everything to hurt the constitution, and the job’s a good ‘un. And he can dare the Republicans to come after him, because a braver man would have enough faith in his own powers of explanation to know that every time they tried to burn them with this, they’d be handing him a golden opportunity to expose some of the worst aspects of the Republican approach to the War on Terror. Then he sets out his own stall about how to fight terrorism the Obama way, and hurts MCCain where it matters.

Instead, he lets the Republicans frame the debate in their terms, and loses the National Security debate slowly.

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By: Sina Kay http://www.lessig.org/2008/06/focus/#comment-12654 Tue, 24 Jun 2008 08:55:45 +0000 http://lessig.org/blog/2008/06/focus.html#comment-12654 I agree with Prof. Lessig’s argument, though I would be more comfortable couching it in terms of political capital. Sen. Obama, as someone running for president, has a certain amount of political capital to spend. He chose, as a matter of political expediency, not to fight FISA (and not get bloodied up in the process). Maybe getting bloodied up would have earned him the respect of “Publius” et al. At the same time, it loses him the respect of people who counted on him to be realistic, people who counted on him not to recklessly fight every fight that comes his way. These people have donated time and money to his campaign, largely because they believe in him, and largely because they believe he has what it takes to win in November. The former reason is wonderful. The latter reason is critical. Many people can’t and won’t support a Dennic Kucinich or a Ted Kennedy. Their reason? These people are unelectable.
So when people give dollars/hours to Obama, they do it for two reasons: he has good ideas, and he can win. If Obama in turn spends their dollars/hours on a tough fight with relatively little reward, that’s reckless. You may dispute that this fight had “little reward” and I agree. I care deeply about the civil liberties that are being violated here, and I think FISA is a mistake. But most people frankly don’t care. Maybe they should, but if that’s the case, it’s up to Publius et al to convince them. To chastise Obama is to fundamentally and naively misunderstand our democracy.
These points made, I think Obama is wisely spending his political capital. I would have liked to see a better outcome in FISA, and public finance. I’d also like the end of the war, affordable healthcare, better public education, a patched up social security, a simplified progressive tax system, a government tort compensation program, and so on. I don’t expect Obama to fight every dollar/hour for these goals. I like his values, I think he can win, and most of all, I hope and expect that he can pick fights in a way that maximizes real outcome. When I donate my $10 or $20 to the Obama campaign, I’m donating with the expectation that he will use it wisely. Compromise may leave a bitter taste, but it is no vice in a democratic system.

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