September 11, 2012  ·  Lessig  · Reblogged from  Huffington Post

There are campaigns that attack the enemy directly — think the British, in formation, Redcoats smartly cleaned. And then there are campaigns that attack indirectly — think of a virus, passing on a handshake, entering the body at the next sneeze. Rootstrikers has launched a campaign of the latter sort, intended to infect the system of corruption that our Congress has become.

Here’s some background to make this campaign understandable:

The most chilling passage in Jack Abramoff’s incredible book, Capitol Punishment (2011) comes about a third of the way in. As Abramoff writes:

After a number of meetings with [the chief of staff], possibly including meals or rounds of golf, I would say a few magic words: “When you are done working for the Congressman, you should come work for me at my firm.” With that, assuming the staffer had any interest in leaving Capitol Hill for K Street — and almost 90 percent of them do — I would own him and, consequently, that entire office. No rules had been broken, at least not yet.

Abramoff is describing perhaps the core of the corrupting influence that has evolved within our Congress — that too many, including Members and their staff, view Capitol Hill as a “farm league for K St.” No one wants to be a congressman forever (anymore). And with a potential salary increase of 1,452 percent (as calculated by United Republic), it’s easy to see why so many would keep their eyes on the real prize — a job as a lobbyist.

This fact is devastating for the prospects of reform. Any meaningful change of the corruption that is this system will certainly radically reduce the financial benefits of being a lobbyist. Lobbyists will never be eliminated, and neither should they be: they serve an essential role in advising the government about the effect of the government’s actions, or inactions. But the value of lobbying services would fall dramatically if Congress were to adopt a system for funding elections that would remove the lobbyists from the center.

And thus the inherent conflict of interest that any reform would face: The very Congress that would be asked to vote for reform would be filled with people who have an interest against reform. To vote for reform would be to vote against a 1,452 percent pay increase. Who among us could do that?

What reformers thus need is a Congress without that conflict: Members who could not benefit from the bonus of being a lobbyist, and thus who could vote honestly and fairly about any proposals for reform.

Enter the No Lobbying Pledge.

The “No Lobbying Pledge” is a promise by a candidate that if he or she is elected then, for 10 years after serving in Congress, he or she will not profit from providing any “lobbying services.” The pledge doesn’t try to restrict what ex-Members can do. It simply blocks them from earning money from the provision of “lobbying services.” It is a pledge that a candidate openly and formally makes, by signing a document that makes clear his or her commitment, and posting that signed pledge for the world to see.

This pledge is not like the ordinary pledge that candidates are now routinely asked to make. Many good souls — No Labels, in particular — are rightly opposed to pledges that purport to limit the freedom of legislators to make legislative judgments based upon their view at the time of what makes sense. But that is not what the No Lobbying Pledge does. It does not constrain any decision by a legislator while she is a legislator. It is a pledge about what she will do after she has served in Congress. And it is motivated by the concern that — like Abramoff’s chiefs-of-staff — farm league congressman won’t keep their eye on the ball.

Our challenge now is to build a movement to get candidates to take the pledge. Today, we announce the first: Representative Jim Cooper, a Blue Dog Democrat from Tennessee, who has been elected to Congress eleven times, and who coined the phrase, “a farm league for K St.” A committed reformer of Congress, we could imagine no better member to be the first to take the pledge.

Now we just need 800 more. At our site, we have provided the infrastructure for fueling twitter campaigns to get members to sign.

But what’s really needed are citizens to show up to a candidate event and ask the candidate directly: “Will you promise to work just for us, by taking the No Lobbying Pledge?” This is an uncomfortable question to ask, because everyone understands that it is an uncomfortable question for candidates to answer. But if we’re to end this corruption, and restore this Republic, this is the courage of citizens that it will take.

So join us. Go to the site and download the pledge. Launch a twitter campaign to ask candidates in your district to take the pledge by uploading a challenge. Go to a candidate event and ask the question. Indeed, have a friend video you asking the question, and we’ll post it and promote it. Do everything you can do to get both candidates in your district to take a position. And after you do, let us know, and we’ll take it from there.

It is a long road to reform. We will get there, I am convinced. But we must first destroy the resistance to reform that now lives within this Congress. The No Lobbying Pledge is the virus to achieve that destruction.

  • Seth Finkelstein

    This is getting almost funny. Just think how many people would sign a petition to declare “cyberspace” an independent nation.

  • Aaron Swartz

    “But as any reform we achieve can apply to future copyrights only”

    Why is that? There are lots of retroactive copyright laws and I think the Supreme Court declared them constitutional.

  • Lessig

    Bets are that retroactive removal of rights fares differently.

  • Seth Finkelstein

    Thought: Isn’t this just asking to bring back renewal? The $1 is just a distraction. The key argument is rather “If it’s not worth renewing the copyright, let it go away”.

    But renewal is gone. Long gone. Won’t PDEA fail for exactly the same reason renewal is gone, since this is really just restoring renewal?

  • Seth Schoen

    There is an early 1980s paper or memo by Lawrence Tribe arguing
    that diminishing the contours of copyright — once they
    have been established by Congress — would be a prohibited
    “taking”. The paper was commissioned by MPAA in connection
    with the Betamax litigation, and we have a copy of it at
    EFF. It was dug out of the depths of a law library by an
    intern (my friend Cristina), and it is just horrifying.
    The basic claim is that, even if we say that these rights
    were created by Congress, they have become a thing which
    must not be taken away without compensation. Thus, MPAA
    maintained, it was actually contrary to the fifth amendment
    to permit uncompensated home recording by Betamax users,
    and it would be similarly unconstitutional to shorten or
    narrow copyright without paying damages to copyright holders.

    That family of claims didn’t work too well in the Betamax era.
    But the “diminishing IP rights is a taking” theory continues
    to be expressed today in other contexts. Does anyone know
    if it can be found anywhere before the Betamax litigation?

  • Seth Finkelstein

    Just a guess, but I strongly suspect that you’ll find that theory argued in the cases which first established “fair use” as a judicial doctrine.
    (i.e., I think the anti-fair-use side will have argued that establishing fair-use would be a “taking”)