July 10, 2008 · Lessig
The hysteria that has broken out among we on the left in response to Obama’s voting for the FISA compromise was totally predictable. Some more cynical types might say, so predictable as to be planned. National campaigns are dominated by people who believe a leftist can’t be elected to national office. That means events that signal a candidate is not a leftist are critical for any election to national office.
But without becoming part of the cynical plan, some reactions to the outrage.
- Obama is no (in the 1970s sense) “liberal”: There are many who are upset by this who believe this (and other recent moves) shows Obama “moving to the center.” People who make this argument signal they don’t know squat about which they speak. You can’t read Obama’s books, watch how he behaved in the Illinois Senate, and watched how he voted in the US Senate, and believe he is a Bernie Sanders liberal. He is not now, and nor has ever been. That’s not to say there aren’t issues on which he takes a liberal position. It is to say that the mix of views he actually has and has had doesn’t map on a 1970s spectrum of liberals to conservative. He is not, for example, “against the market,” as so many on the left still make it sound like they are. He is for same-sex civil unions. So if you’re upset with Obama because you see him shifting, you should actually be upset with yourself that you have been so careless in understanding the politics of this candidate.
- Obama has not shifted in his opposition to immunity for telcos: As he has consistently indicated, he opposes immunity. He voted to strip immunity from the FISA compromise. He has promised to repeal the immunity as president. His vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important. Whether it is more important than telco immunity is a question upon which sensible people might well differ. And critically, the job of a Senator is to weigh the importance of these different issues and decide, on balance, which outweighs the other.
This is not an easy task. I don’t know, for example, how I personally would have made the call. I certainly think immunity for telcos is wrong. I especially think it wrong to forgive campaign contributing telco companies for violating the law while sending soldiers to jail for violating the law. But I also think the FISA bill (excepting the immunity provision) was progress. So whether that progress was more important than the immunity is, I think, a hard question. And I can well understand those (including some friends) who weigh the two together, and come down as Obama did (voting in favor).
- Obama’s shift was in his promise, as relayed by a member of his staff, to filibuster any bill with telco immunity: First, and most obviously, that promise was a stupid promise. However important holding telcos responsible is, certainly there is something more important that Congress could have done. E.g., if telco immunity were tied to a bill requiring a 70% reduction in green house gases by 2015, would it make sense to filibuster that bill?
But second, even given it was a stupid promise, in my view, it was political mistake to change — even if it was the right thing to do from the perspective of a U.S. Senator.
It was a political mistake for the reasons I’ve already explained: it was self-Swiftboating. This shift is fuel for the inevitable “flip-flop” campaign already being launched by the Right. Their need to fuel this campaign is all the more urgent because of the extraordinary “flip-flops” of their own candidate. So anyone with half a wit about this campaign should have recognized that this shift would be kryptonite for the Barack “is different” Obama image. Just exactly the sort of gift an apparently doomed campaign (McCain) needs.
But again, to say it was a political mistake is not to say it was a mistake of governance. To do right (from the perspective of governance) is often to do wrong (from the perspective of politics). (JFK won a Pulitzer for his book about precisely this point.) So at most, critics like myself can say of this decision that it was bad politics, even if it might well have been good governance. Bad politics because it would be used to suggest Obama is a man of no principle, when Obama is, in my view, a man of principle, and when it is so critical to the campaign to keep that image front and center.
- Unless, of course, it was good politics: I actually don’t personally believe that this was a decision motivated by politics, because, again, I’ve seen the actual struggle of some who advised on this issue (and I wasn’t one of those few), but we should recognize, of course, that this decision to pick a fight with us liberals may well have been worth more than the campaign would lose by this one clear example of flipping. And here, if you let cynical instincts run wild, there’s no limit to the games that might be imagined. For what better way to demonstrate (accurately, again, for remember #1 above) that Obama is not beholden to the left than by this very visible fight that Obama doesn’t cave in on. When I received the blast from Moveon, demanding that Obama reverse himself (again), it was absolutely clear that he wouldn’t. For how could he reverse himself then, and avoid the tag of being tied to the left? And certainly (more cynicism) Moveon recognized this. What greater gift than a chance to act independently of a movement that (while good and right and true, in my liberal view) is not anymore a spokesman for the swing votes that will decide this election.
- But assume you reject #4 completely. Then one more thought: Isn’t it time for Obama to resign from the Senate? Why should he allow the weird framing of issues that will come from this spineless institution to define his campaign? (Notice, McCain didn’t even deign to show up.) Why not simply confess to his constituents that he can’t do his job as United States Senator from Illinois while running for President of the United States. That the clarity of message necessary for the latter isn’t consistent with the obligation of compromise required for the former?
- Finally, and 2bc: please, fellow liberals, or leftists, or progressives, get off your high horse(s). More on this with the next post but: it is not “compromising” to recognize that we are part of a democracy. We on the left may be right. We may be the position to which the country eventually gets. But we have not yet earned the status of a majority. And to start this chant of “principled rejection” of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).
That taunt will be continued.