Lessig » HuffPo http://www.lessig.org Blog, news, books Sat, 12 Nov 2016 16:31:06 +0000 en-US hourly 1 http://wordpress.org/?v=3.8.2 Why I Want to Run http://www.lessig.org/2015/08/why-i-want-to-run/ http://www.lessig.org/2015/08/why-i-want-to-run/#comments Tue, 11 Aug 2015 14:29:24 +0000 http://www.lessig.org/2015/08/why-i-want-to-run/ Today I announced the formation of a committee to explore my entering the Democratic Primary for President. By Labor Day, I will decide whether a run makes sense.

I want to run. But I want to run to be a different kind of president. “Different” not in the traditional political puffery sense of that term. “Different,” quite literally. I want to run to build a mandate for the fundamental change that our democracy desperately needs. Once that is passed, I would resign, and the elected Vice President would become President.

This is the Presidency as referendum. Our constitution, unlike some states, doesn’t give us a referendum power directly. This hack adds one in. Almost never would it be necessary — in a well-functioning democracy. But when a democracy has lost the capacity to act as a democracy, a referendum president is a peaceful means to force a change that Congress is otherwise not going to make. When the system has become the problem, we need an intervention from the outside.

We are at one of those moments now. In no plausible sense do we have a representative democracy in America today. That fact shows itself in a thousand ways — from #BlackLivesMatter to billion dollar SuperPACs, and none more profound than the deep sense that most Americans have that their government is not theirs. “The system,” as Elizabeth Warren puts it, “is rigged.” And the fundamental challenge for our democracy today is to find a way to fix that rigged system.

Yet while every major candidate in the Democratic Primary has acknowledged this truth, none of them have waged a campaign that would produce a mandate powerful enough to fix it. They all offer a Chinese menu of bold ideas — from climate change legislation to tackling Wall Street, from student debt relief to equalizing the wealth in America — but not one has offered a plan for fundamental reform that could actually unite a divided America, and give us back a democracy that might work.

This is true of even the greatest candidate in this race so far, Bernie Sanders. Sanders is a rare hero among politicians. Throughout his career, he has been unwavering in his advocacy for the issues he believes in, however unpopular. There isn’t a triangulating bone in his body. And as people have come to know him and his history, they are inspired by a man who has stuck by his principles and whose principles are now more relevant and true than ever. The picture of 28,000 people showing up to a rally more than a year before an election is the picture of hope for a democracy.

Yet what should be obvious to everyone — or at least the 82% of Americans who believe “the system is rigged” — is that none of these incredible reforms is possible until we un-rig the rigged system first. We’ve lived through “change you can believe in.” What we need now is a reason to believe in change.

A referendum can be that reason. And the campaign for a referendum president could unite America behind a principle that would make democracy possible again.

That principle is a demand for equality. Not the equality of wealth, though I share Sanders’ view about the harm wealth inequality has done. And not an equality of speech. The First Amendment must mean at least this. But an equality of citizens. The right that all of us have in a representative democracy to be represented equally.

That right has been violated in America today — and brazenly so. In the way campaigns are funded, in the way the poor and overworked are denied an equal freedom to vote, and in the way whole sections of American voters get written into oblivion by politically gerrymandered districts that assure their views are not represented, we have allowed the politicians to cheat us of the most fundamental commitment of a democracy: equal citizens. And until we find a way to create a mandate to demand equality for citizens, we will never find a way to make real change possible.

A regular candidate for president — even an extraordinary one, as Sanders is — cannot achieve that mandate. His or her mandate is always divided among the 8 or 10 issues at the core of their campaign. The lobbyists and politicians will always have an excuse to defeat their call for reform in the wake of a campaign in which reform is literally the last issue on the list.

A referendum president is a chance to achieve a mandate to restore this principle of political equality. It is a chance to create the political power that would be necessary to force a reluctant Congress to make the changes that equality demands. And if the movement to support this referendum grew powerful enough, as candidates for Congress get called upon to support the Citizen Equality Referendum, then conceivably, the term of the referendum president could be quite short. And once the reform is passed, the elected Vice President, whether Hillary, or Bernie, or Joe, or someone else, would become President — with a chance to actually do something in a Washington that has been remade.

I recognize, of course, how implausible this idea seems — even though every step in the argument is almost certain. The system is rigged. Sensible change cannot happen until it is unrigged. Any campaign that makes un-rigging just one issue among many cannot achieve the mandate fundamental reform will require. Yes, the idea may seem implausible. Yet the idea is right. And as I have come to recognize this simple fact, I have struggled with whether I could act on what I honestly believe.

I have tried to recruit others more plausible than yet another middle aged white guy (without a billion dollars). And I would gladly step aside if someone better known credibly committed to the run. But until someone does, I want a chance to press the easiest case possible: something we all already believe, with a plan that at least most might imagine could work.

So today we’ve launched a kickstarter-like campaign, to raise the funds necessary to make a run plausible. If we hit our target of $1 million by Labor Day, then I will give this run every ounce of my energy. If we don’t hit our target, we will return the money contingently pledged. I won’t take anyone’s money unless there’s a campaign to be waged. But I passionately want a chance to wage that campaign.

Because in the end, this fight is not either/or. At most, if this works, it would delay the start of the next extraordinary president’s administration — whether Bernie, or Hillary, or someone else.

Our goal is to place at the center of this primary the most important moral issue of our time — achieving the equality that a democracy demands — so we can finally build the society that we were promised: one where citizens are equal, and where none could imagine the need to assert the most basic truth of any society — that their lives mattered any less than any one else.

We are better than this. And if we muster the strength to undo the corruption that the politicians have allowed, the greatness of America will be reflected in its government too. It once was. When we are finally equal citizens, it will again.

(Original post on HuffPo)

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Something Is Going Right: Net Neutrality and the FCC http://www.lessig.org/2015/02/something-is-going-right-net-neutrality-and-the-fcc/ http://www.lessig.org/2015/02/something-is-going-right-net-neutrality-and-the-fcc/#comments Thu, 19 Feb 2015 17:46:54 +0000 http://www.lessig.org/2015/02/something-is-going-right-net-neutrality-and-the-fcc/ Imagine that when you plugged something into an electrical outlet, the outlet queried the device and demanded identification. Was it a Sony TV or Panasonic? Was it a Dell or an Apple? And then based on that identification, different levels of quality or reliability of electricity were served at different prices. No doubt such a regime would benefit utility companies. I’ve not yet met anyone who thinks it would benefit innovation. Thus, it would be something possibly good for network providers, but plainly bad for the market generally.

As I’ve watched the amazing progress that proponents of “network neutrality” have made, I’ve been astonished both by their success, and by how long this debate has been going on. I first drew the analogy to the electrical grid in testimony before John McCain’s subcommittee more than a dozen years ago. Mark Lemley and I tried to lay the issue out, as it applied to the then-raging battle over “open access,” almost 15 years ago. But now, thanks to the incredible work of many, including especially Marvin Ammori, Susan Crawford, Harold Feld (even from the old days), Barbara van Schewick, Kevin Werbach, and Tim Wu, the FCC has come around to recognize its crucial role in preserving the environment for innovation. If the order is as the order seems it will be, it will mark an extraordinary conversion by the chairman, and former industry lobbyist, of the FCC. Nixon went to China, Johnson passed the Civil Rights Acts, and Chairman Wheeler got us network neutrality.

Defenders of the status quo are now frantically filling the tubes with FUD about the FCC’s decision. But as you work through this FUD, keep one basic fact clear. Relative to practically every other comparable nation, America’s broadband sucks. Seriously, sucks. Even France beats us in cost and quality. And as the genius Yochai Benkler established in the monumental report by the Berkman Center commissioned by the FCC after Obama was elected, the single most important reason our broadband sucks is the sell-out regulatory strategy of the prior decade at least. Nations that imposed neutrality-like rules beat us, in cost and quality. They have more competition, faster growth, and better access. So for anyone remotely connected to reality-based policy making, it has been clear forever that America made a wrong turn in its regulatory strategy, and that we needed an about face.

The FCC’s likely action here is that about face. I’ve not seen the details. Those that have worry rightly that there are improvements that still need to be made. (Barbara van Schewick’s ex parte filing of yesterday raises some really important concerns.) But we’re in a place where the FCC has no incentives except to get it right. And if the community that has done the incredible work to carry this issue this far can focus on these final critical steps, we could well see a real victory here. Finally. (Though I still worry about the next step, as Susan Crawford has so terrifyingly described.)

The president deserves credit for pressing this issue again. Chairman Wheeler deserves real credit for looking carefully at the facts, and recognizing the truth in what the president was pressing. Title-II-light is the right regulatory home. Unlike the old days with utility regulation, the FCC will not regulate rates, or impose tariffs, or undue administrative burdens. A clear regulatory commitment will set the direction for investment and innovation — in fast, cheap broadband (something much of the world has had, but the U.S., not so much), and continued and renewed permission-free innovation.

For if the telephone companies that built the first broadband network (DSL) could discriminate, would Skype have happened? And if the cable companies that have built the second broadband network could discriminate, would YouTube have happened? The history in Internet innovation is the story of outsiders building a better mouse trap — kids, dropouts, and non-Americans, given a neutral platform to prove their ideas. It was neutral because it was built that way. If we’re to preserve that platform for innovation, we have to keep it that way, through whatever means possible.

Cross-posted from Lessig Blog.

(Original post on HuffPo)

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We Should Be Protesting, Too http://www.lessig.org/2014/10/we-should-be-protesting-too/ http://www.lessig.org/2014/10/we-should-be-protesting-too/#comments Thu, 02 Oct 2014 00:46:45 +0000 http://www.lessig.org/2014/10/we-should-be-protesting-too/ This week, tens of thousands of Hong Kong residents turned out to protest China’s plan for bringing democracy to that city. Rather than letting voters pick the candidates that get to run for chief executive, Beijing wants the candidates selected by a 1,200 person “nominating committee.” Critics charge the committee will be “dominated by a pro-Beijing business and political elite.” “We want genuine universal suffrage,” Martin Lee, founding chairman of Hong Kong’s Democratic Party demanded, “not democracy with Chinese characteristics.”

But there’s not much particularly Chinese in the Hong Kong design, unless Boss Tweed was an ancient Chinese prophet. Tweed famously quipped, “I don’t care who does the electing, so long as I get to do the nominating.” Beijing’s proposal is just Tweedism updated: a multi-stage election, with a biased filter at the first stage.

The pattern has been common in America’s democracy too. Across the Old South, the Democratic Primary was limited to “whites only.” That bias produced a democracy responsive to whites — only. The battle for equal rights was a fight to remove that illegitimate bias, and give African Americans an equal say in their government.

Today there’s no “white primary.” Today, there’s a “green primary.” To run in any election, primary or general, candidates must raise extraordinary sums, privately. Yet they raise that money not from all of us. They raise it from a tiny, tiny few. In the last non-presidential election, only about .05 percent of America gave the maximum contribution to even one congressional candidate in either the primary or general election; .01 percent gave $10,000 or more; and in 2012, 132 Americans gave 60 percent of the superPAC money spent. This is the biased filter in the first stage of our American democracy.

This bias has consequences. Of course, we don’t have a democracy “dominated by a pro-Beijing business and political elite.” But as a massive empirical study by Princeton’s Martin Gilens and Benjamin I. Page published just last month shows, remove the word “pro-Beijing,” and the charge translates pretty well.

America’s government is demonstrably responsive to the “economic elite and organized business interests,” Gilens and Page found, while “the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.” Boss Tweed would have been impressed.
The “green primary” isn’t a formal bar to election. But it is certainly an effective bar. There isn’t a single political analyst in America today who doesn’t look first to whether a candidate for Congress has the necessary financial support of the relevant funders. That money isn’t enough, and it certainly doesn’t guarantee victory. (Only 94 percent of candidates with more money win.) But no candidate ignores the money, or is ignorant of the views of the tiny fraction of the 1 percent that provides it. That’s not perfect control, but it turns out to be control enough to weaken the ability of ordinary Americans to have something other than a “non-significant impact upon public policy.”

The surprise in the Hong Kong plan is not that it fits Boss Tweed’s mold. The surprise is the reaction of her students, and now people. To imagine a proportionate number of Americans — 5 million — striking against our own version of Tweedism is to imagine the first steps of a revolution. But in America, we don’t protest our “democracy with Chinese characteristics.” In America, we have accepted it as as American as apple pie.

At least for now. There is no doubt that because of the way we fund campaigns, the “economic elite” — what conservatives call “the cronies” and progressives “corporate power” — have hijacked American democracy. And as frustration and anger about that truth grows, that elite will become as the whites of an apartheid regime: identified as the cause of a dying democracy, and the target of angry demands for reform.

It is hard to see this just now, since so much of popular culture idolizes extraordinary wealth. But as economic growth in the middle class stalls, and as inequality soars, an enemy will be found. At least unless the more enlightened of that elite, from both the Left and the Right, stop screaming at voters through their superPACs, and step up to support the change that might weaken their power, but walk us back to a democracy.

Hong Kong’s students have started that struggle — for them, there. But their ideals are ours too, as is the flaw in the system they attack. We should be demanding the reform for which they are now fighting: an unbiased election, at every important stage. Or more simply: #EndTweedismEverywhere.

Lawrence Lessig is a professor of law at Harvard, and co-founder of Mayday.US.

(Original post on HuffPo)

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What New Yorkers Can Do About Money in Politics http://www.lessig.org/2014/09/what-new-yorkers-can-do-about-money-in-politics/ http://www.lessig.org/2014/09/what-new-yorkers-can-do-about-money-in-politics/#comments Mon, 08 Sep 2014 21:57:30 +0000 http://www.lessig.org/2014/09/what-new-yorkers-can-do-about-money-in-politics/ There’s a meme spreading fast through the tubes of the Internets about what explains Governor Cuomo’s refusal to debate Zephyr Teachout. Here’s one tweet:

So Cuomo won't debate Zephyr Teachout in NY and Abbott won't debate Wendy Davis in TX? Yeah, women have come a long way. #uppers

— Tam Luntz (@TammaraMaiden1) September 6, 2014

It’s a fun way to be angry about the outrage of the governor refusing to debate. But I don’t think this is really about sexism. It’s about money-ism: Zephyr is not entitled to debate the governor not because she’s a woman, but because she’s a woman without money. (Of course that’s not unrelated.) And in this democracy, not to have money is not to be qualified.

This is the same reality Buddy Roemer confronted in 2012. Roemer was the most qualified Republican running for president. He had been a governor, he had served three terms in the House of Representatives, and he had run a successful community bank — kind of a Tim Pawlenty, Newt Gingrich, and Herman Cain wrapped in one. But Roemer had made money the issue in his campaign, refusing to accept contributions of greater than $100, and refusing PAC money. He was therefore not qualified to even debate the other candidates. Literally. At first, he was told he had to have 1 percent national name recognition to be allowed to debate. When he got that, he was told he needed 2 percent. When he got that, he was told he had to have raised $500k in the prior six weeks. Not to have money means not to be qualified.

For Cuomo, the disdain goes even deeper. If this campaign has shown us anything, it has shown us Andrew Cuomo as Richard Nixon. Like Nixon, he believes the word “independent” only ever appears in scare quotes: Nixon appointed an “independent” prosecutor, and then demanded the special prosecutor take direction from Nixon; Cuomo appointed an “independent” corruption commission and then insisted it was “absurd” to say the governor had no power to stop it from investigating him.

But the likeness is even deeper. There’s a meanness that wasn’t as obvious before. And a pettiness. If there’s one thing great politicians are great at, it is the ability to step outside the fight, and treat each other decently. Watch this from the Labor Day Parade:

The man can’t even look her in the face. She’s smiling and open, persistent in her effort to engage him. He acts as if he doesn’t even see her — forgetting that as humans, and all recognize the “I’m pretending I don’t see you” look.

But even that’s not enough for the Nixon of New York. When asked about the encounter, he just can’t stop himself from playing the part to a tee.

“Why tell the truth? It’s not like she’s rich enough to check me.”

There’s a fundamental line that has been crossed, and I fear we’re going to get really angry about it, but not in time. As the story slowly spreads, as the recognition becomes unavoidable, frustration with this “system” is going to overflow. And while the ever-optimists will say, “That’s great, because then we can channel that passion into change later,” I, unavoidably focused, think we should be channeling that passion right now.

He is our (Democrats) Nixon. Why can’t we make him our Eric Cantor? Because to revive this democracy enough to give anyone under 40 a reason to care would require as much.

In a literal sense of the word, it is possible. There are more than enough New York Democrats connected to these tubes to defeat Cuomo. And while there isn’t the money in Zephyr’s campaign to orchestrate the television commercials that would rally those Democrats, there is the free and still basically open Internet that Tim Wu defends. That platform is still effectively neutral, and it is still possible for everyone touched by these words to reach 10 others, and they 10 others, and so on. Until it becomes as obvious as Lincoln that in a democracy, this behavior is unacceptable. Money is not the measure of a citizen. Or a candidate. And anyone who doesn’t get that shouldn’t get the chance to call himself the nominee of the Democratic Party. Again.

You know 10 New Yorkers. “Talk” to them — while the tubes are still open and basically free.

Follow Lawrence Lessig on Tumblr, where this post first appeared.

(Original post on HuffPo)

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Aaron’s Walk: The New Hampshire Rebellion http://www.lessig.org/2014/01/aarons-walk-the-new-hampshire-rebellion/ http://www.lessig.org/2014/01/aarons-walk-the-new-hampshire-rebellion/#comments Fri, 10 Jan 2014 17:22:18 +0000 http://www.lessig.org/2014/01/aarons-walk-the-new-hampshire-rebellion/ A friend of Social and Internet Activist Aaron Swartz describes the movement his life has inspired:

A year ago tomorrow, Aaron Swartz left. He had wound us all up, pointed us in a million directions, we were all working as hard as we could, moving things forward. And then he was gone.

Forever, all of us close to him will wonder whether there was more we could have done to keep him. We hadn’t worked hard enough to help him. He was alone, surrounded by a million friends. And now, even now, forever it will be this now, a million friends are forever alone, having lost him.

I wanted to find a way to mark this day. I wanted to feel it, as physically painful as it was emotionally painful one year ago, and every moment since. So I am marking it with the cause that he convinced me to take up seven years ago and which I am certain he wanted to make his legacy too.

On Saturday, we begin a walk across the state of New Hampshire, to launch a campaign to bring about an end to the system of corruption that we believe infects DC. This is the New Hampshire Rebellion.

Fifteen years after New Hampshire’s Doris Haddock (aka, “Granny D”), at 88, began her famous walk from LA to DC with the sign “CAMPAIGN FINANCE REFORM” on her chest, a dozen or so of us will start to walk in Dixville Notch, NH, the place the first 2016 presidential ballots will be cast. For two weeks, with more than 100 joining us along the way, we will walk south across New Hampshire, ending up in Nashua, NH, on the day Granny D was born.

Along the way, we will recruit everyone we can to do one thing: We want them to ask every presidential candidate at every event between now and January 2016, this one question: “How will YOU end the system of corruption in DC?”

A system of corruption, not particular crimes. Our focus is not Rod Blagojevich; it is the system of campaign funding in which fundraising is key, and the funders represent the tiniest fraction of the 1%. That system, we believe, corrupts this democracy. (We, and 71% of Americans according to a recent poll.) And until that system changes, no sensible reform on the right or the left is possible. Politicians may continue to play this fundraising game. We believe that New Hampshire can change it.

As this question gets asked, we will record the responses. Literally. And post them. And through allied campaigns, we will put pressure on the candidates to surface this issue — and if we’re lucky — make it central to their campaigns.

This campaign will only work if the citizens of New Hampshire care about this issue. Really care. And the citizens of New Hampshire will really care only if we can find a way to convince them that there’s something that can be done about it.

Because here’s the really incredible fact about we, the People:

Ninety-six percent of America believe it is “important” “that the influence of money in politics be reduced” — 68 percent believing it “very important,” 28 percent, just “important.”

Yet:

91 percent of America believes it is “not likely” that the influence will be reduced.

This gap is an incredibly opportunity. If we can, as Harvey Milk used to say, “give’m hope” — hope that that there’s a real chance this system of corruption might change — then this latent energy for reform might be released. And then this, the only real hope for real reform, might be realized: an end to this system of corruption.

Since Aaron convinced me to take up this cause, I’ve written three books and given more than three hundred lectures about the problem. But the walk across New Hampshire is not a lecture tour. It is a chance for all of us to talk about this issue, person to person, one citizen at a time. Most politicos believe it is not possible to convince ordinary voters to care about this issue. I believe these experts are wrong. Over the next two weeks, and twice more before the 2016 primary, as we walk across the state, we’ll see. And I will report back.

You can help. Please help. You can still join the walk. You can spread the word of the walk (tweet #NHRWalk linked to nhrebellion.org). You can sign a petition from wherever you are to push the candidates to answer this one question. Or, with just a few clicks, you can send support that will help this movement grow.

It will always be my penance to believe that I didn’t do enough for my friend. I will do more. This is the start. If we’re lucky, we’ll mark the third anniversary of that terrible day with the real hope that the New Hampshire primary will turn upon this issue. And if we’re super lucky, we’ll mark the fourth with the anticipation of a president who made it her or his is-sue. And won.

(Original post on HuffPo)

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"They Know We Know It." Get Politicians On The Record About Corruption http://www.lessig.org/2013/02/they-know-we-know-it-get-politicians-on-the-record-about-corruption/ http://www.lessig.org/2013/02/they-know-we-know-it-get-politicians-on-the-record-about-corruption/#comments Thu, 14 Feb 2013 17:46:18 +0000 http://www.lessig.org/2013/02/they-know-we-know-it-get-politicians-on-the-record-about-corruption/ “There’s another challenge that we must address and it is the corrupting force of the vast sums of money necessary to run for office. The unending chase for money I believe threatens to steal our democracy itself.”

No, that’s not a quote from the President Obama’s State of the Union address. But it is from a recent speech by the newest member of his cabinet: John Kerry.

We both were struck by Kerry’s candidness and eloquence on the matter of money in politics as he gave his farewell address to the Senate, where he has spent the last 28 years of his life.

We were so struck, in fact, that we – and our good friends at HuffPost, including Arianna – need your help.

We’re calling it the On the Record Project.

We need to get every member of the House and Senate on the record about the force “that threatens to steal our democracy itself.”

We can no longer afford to have our public officials remain silent on this crucial issue. They should no longer be allowed to duck it, or to act is if there is no mandate to fix the problem.

In fact, the mandate couldn’t be clearer. Year after year, poll after poll has shown that we, the people, are sickened by the way in which money corrodes and corrupts our democracy. In a Gallup poll last July, 87% of us said that reducing government corruption should be an “extremely important” or “very important” priority for the president. It ranked second on a list a dozen – from improving education to strengthening national security — just below job creation (which came in #1, at 92%).

Corruption. It’s a strong word. But that’s how vast majorities of us see it, and now Secretary o State John Kerry confirmed that we’re not nuts: “I’ve used the word ‘corrupting’ and I want to be very clear about it. I mean by it not the corruption of individuals but a corruption of a system itself that all of us are forced to participate in against our will: The alliance of money and the interests that it represents, the access that it affords to those who have it at the expense of those who don’t, the agenda that it changes or sets by virtue of its power is steadily silencing the voice of the vast majority of Americans who have a much harder time competing or who can’t compete at all.”

We Americans are not the type of people who have ever allowed our collective voice to be steadily silenced. Other countries may have a higher tolerance for such muting of the masses, but not us. And it’s time to speak up, and to get every one of our elected representatives to speak up, too. Do they agree or disagree with 87% of us? Do they think John Kerry’s reflections, informed by three decades of service on Capitol Hill, are accurate or not?

To help manage the On the Record Project, HuffPost has set up a system for all of us to help get every member of Congress on the record.

It’s simple enough, but will require some guts and persistence to pull it off.

Here’s what we need you to do:

Go to a gathering that your representative or senator is attending and ask him/her:

What is your view on campaign finance?

Do you believe that the “unending chase for money” has corrupted politics?

Record their answers to both questions on video. Use your cell phone or whatever device you want and then post it with the other videos so that we have an exact record of what they said.

Upload your audio to SoundCloud and tag it #campaignmoney

Or, send us video clips through SendSpace.

Or, send files to us directly at openreporting@huffingtonpost.com

The goal of this project is not merely to get every one of them on the record, but then to use what they say to help propel them to act – to reform the system — or to hold them accountable when they either fail to act or fail to acknowledge the crisis of corruption.

Acknowledgement of an illness is the gateway to wellness. As it is with alcoholics, the first step to sobriety is publicly admitting the addiction.

And on that front, once again John Kerry was very clear: “We should not resign ourselves, Mr. President, to a distorted system that corrodes our democracy, and this is what is contributing to the justifiable anger of the American people. They know it. They know we know it. And yet nothing happens. The truth requires that we call the corrosion of money in politics what it is – it is a form of corruption and it muzzles more Americans than

it empowers, and it is an imbalance that the world has taught us can only sow the seeds of unrest.”

Indeed, they do know it. And they do know that we know it. And, yet, nothing is happening in Washington.

At least, until now.

Let’s get every politician to take a stand – either for the status quo or against it — so that we know who’s on what side. Doing so will help all 87% of us democracy-loving Americans draw the battle lines for the future.

Please, join the cause. Become a part of the On The Record Project now.

Questions on this project? Let us know in the comments below. We will update this scorecard with your responses.

(Original post on HuffPo)

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Prosecutor as Bully http://www.lessig.org/2013/01/prosecutor-as-bully-3/ http://www.lessig.org/2013/01/prosecutor-as-bully-3/#comments Sun, 13 Jan 2013 15:01:44 +0000 http://www.lessig.org/2013/01/prosecutor-as-bully-3/ (Some will say this is not the time. I disagree. This is the time when every mixed emotion needs to find voice.)

Since Aaron Swartz’s arrest in January, 2011, I have known more about the events that began this spiral than I have wanted to know. Aaron consulted me as a friend and lawyer. He shared with me what went down and why, and I worked with him to get help. When my obligations to Harvard created a conflict that made it impossible for me to continue as a lawyer, I continued as a friend. Not a good enough friend, no doubt, but nothing was going to draw that friendship into doubt.

The billions of snippets of sadness and bewilderment spinning across the Net confirm who this amazing boy was to all of us. But as I’ve read these aches, there’s one strain I wish we could resist:

Please don’t pathologize this story.

No doubt it is a certain crazy that brings a person as loved as Aaron was loved (and he was surrounded in NY by people who loved him) to do what Aaron did. It angers me that he did what he did. But if we’re going to learn from this, we can’t let slide what brought him here.

First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good. He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million-dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: shame.

One word, and endless tears.

This piece first appeared on Lawrence Lessig’s blog.

(Original post on HuffPo)

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What the Hell Is Being a Moderator For? http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-3/ http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-3/#comments Sun, 21 Oct 2012 15:00:18 +0000 http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-3/ For the first time in as long as we can tell, neither candidate for president is addressing one of the top 10 issues that Americans believe should be a priority for the next president. Indeed, not just one issue, but two.

Since 2000, Gallup has been asking Americans to identify “how important a priority each of the following issues should be for the next President of the United States.” Every year before this one, those issues at the top are exactly the issues the candidates addressed on their websites. (Click here to see the research.) The order maybe different. There may be other issues addressed that are not on that top 10 list. But in every election since 2000, every one of the top 10 gets at least some serious consideration.

Until this year. Of the top 10 issues that Gallup identified, two are not even mentioned on either candidate’s website: number two on the list (with 87% of Americans believing it “extremely or very important”) — “reducing corruption in the federal government,” and number nine (with 76%) — “overcoming political gridlock.”

Ranked more highly than terrorism, the deficit, schools or social security, Americans want “corruption” to end. More than tax reform, or affordable access to college, Americans want “gridlock” to end. Yet neither campaign thinks it necessary to even mention these top priorities.

Why?

Let’s focus on issue number two: “reducing corruption in the federal government.” It’s clear that by “corruption,” Americans don’t mean the crimes of Rod Blagojevich or Jack Abramoff. Those scandals were long ago, and our memory is short. Instead, the only sort of “corruption” that has had the focus of the news media is the endless campaign cash that every candidate for any office is now seen obsessively to seek. Super PACs and Citizens United: these are the triggers to what we mean today by “corruption.” In response to that corruption, Americans are looking for a democracy that doesn’t seem so slimy.

Yet neither Romney nor Obama wants to talk about this corruption, though no doubt for very different reasons. Though Americans hate the system, beltway Republicans (and Romney) apparently love it. Some think it’s the only way for Republicans to remain competitive. So it’s obviously best for them to keep silent about an issue not likely to win them support. And while Obama no doubt hates the system as much as anyone, to raise it now would be to remind us that he promised to “take up that fight” to change the system, but has not yet gotten around to it. Worse, there’s something seemingly hypocritical about attacking SuperPACs while encouraging friends to send support to your own.

So it’s no surprise that the candidates won’t volunteer a plan to address this “corruption.” But why is it that they are not asked anyway? Why isn’t it the core of journalistic ethics to get the candidates to address the issues America wants addressed, especially when it is clear that candidates themselves don’t want that issue addressed?

This is a question not easily answered, because it’s not clear anymore just what a political journalist is. Candidates appear on news programs on their terms, not terms set by the show. They agree to debate only if their lawyers are permitted to set the rules and scope — which was precisely why the League of Women Voters could no longer agree to host debates. In the endless competition for access, politicians set the terms for access. And even if they don’t explicitly put issues off the table, everyone understands the consequences of making a candidate uncomfortable. There’s always a next time, unless, of course, you make things really bad for the candidate this time.

But there is one political journalist who is free of these constraints: the moderator of a presidential debate. Candidates have no choice but to show up to the debates. They have no way to hide from a question directly put. So if there’s one person the system should count on to ask the questions America wants answered but the candidates want avoided, it is the moderator of a presidential debate.

Yet no moderator to date has accepted this responsibility. Candy Crowley moderated the questions of randomly selected undecided voters — as if that would capture anything about the issues most of America wants answered. And Jim Lehrer let the rules get smothered by his need to be kind to important people — with the consequence that he never even got to the part of the debate where “corruption” might have been an issue.

In Robert Caro’s latest Johnson biography, he recounts a famous story about Johnson’s decision to take up the cause of civil rights. Kennedy had just been murdered. The nation was looking for a new leader. But Johnson was being counseled as strongly as his advisers could counsel not to bring up a civil rights bill. As Caro retells it:

[I]n the early hours of the morning… “one of the wise, practical people around the table” told [Johnson] to his face that a president shouldn’t spend his time and power on lost causes, no matter how worthy those causes might be.

“Well, what the hell’s the presidency for?” Lyndon Johnson replied.

The rest, as they say, is history.

It may be too much to wish for a president with Johnson’s strength of character. But is it too much to wish for moderator who is Johnson-like? Too much to wish for a moderator who wonders, what is being a moderator for?

It’s not the job of the moderator to be liked. It’s not the job to seem agreeable. The job is to make sure that America understands what the candidates believe about the issues that America cares about. Moderator laissez faire won’t get us there. A real political journalist just might.

(Original post on HuffPo)

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What the Hell Is Being a Moderator For? http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/ http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/#comments Sun, 21 Oct 2012 15:00:18 +0000 http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/ For the first time in as long as we can tell, neither candidate for president is addressing one of the top 10 issues that Americans believe should be a priority for the next president. Indeed, not just one issue, but two.

Since 2000, Gallup has been asking Americans to identify “how important a priority each of the following issues should be for the next President of the United States.” Every year before this one, those issues at the top are exactly the issues the candidates addressed on their websites. (Click here to see the research.) The order maybe different. There may be other issues addressed that are not on that top 10 list. But in every election since 2000, every one of the top 10 gets at least some serious consideration.

Until this year. Of the top 10 issues that Gallup identified, two are not even mentioned on either candidate’s website: number two on the list (with 87% of Americans believing it “extremely or very important”) — “reducing corruption in the federal government,” and number nine (with 76%) — “overcoming political gridlock.”

Ranked more highly than terrorism, the deficit, schools or social security, Americans want “corruption” to end. More than tax reform, or affordable access to college, Americans want “gridlock” to end. Yet neither campaign thinks it necessary to even mention these top priorities.

Why?

Let’s focus on issue number two: “reducing corruption in the federal government.” It’s clear that by “corruption,” Americans don’t mean the crimes of Rod Blagojevich or Jack Abramoff. Those scandals were long ago, and our memory is short. Instead, the only sort of “corruption” that has had the focus of the news media is the endless campaign cash that every candidate for any office is now seen obsessively to seek. Super PACs and Citizens United: these are the triggers to what we mean today by “corruption.” In response to that corruption, Americans are looking for a democracy that doesn’t seem so slimy.

Yet neither Romney nor Obama wants to talk about this corruption, though no doubt for very different reasons. Though Americans hate the system, beltway Republicans (and Romney) apparently love it. Some think it’s the only way for Republicans to remain competitive. So it’s obviously best for them to keep silent about an issue not likely to win them support. And while Obama no doubt hates the system as much as anyone, to raise it now would be to remind us that he promised to “take up that fight” to change the system, but has not yet gotten around to it. Worse, there’s something seemingly hypocritical about attacking SuperPACs while encouraging friends to send support to your own.

So it’s no surprise that the candidates won’t volunteer a plan to address this “corruption.” But why is it that they are not asked anyway? Why isn’t it the core of journalistic ethics to get the candidates to address the issues America wants addressed, especially when it is clear that candidates themselves don’t want that issue addressed?

This is a question not easily answered, because it’s not clear anymore just what a political journalist is. Candidates appear on news programs on their terms, not terms set by the show. They agree to debate only if their lawyers are permitted to set the rules and scope — which was precisely why the League of Women Voters could no longer agree to host debates. In the endless competition for access, politicians set the terms for access. And even if they don’t explicitly put issues off the table, everyone understands the consequences of making a candidate uncomfortable. There’s always a next time, unless, of course, you make things really bad for the candidate this time.

But there is one political journalist who is free of these constraints: the moderator of a presidential debate. Candidates have no choice but to show up to the debates. They have no way to hide from a question directly put. So if there’s one person the system should count on to ask the questions America wants answered but the candidates want avoided, it is the moderator of a presidential debate.

Yet no moderator to date has accepted this responsibility. Candy Crowley moderated the questions of randomly selected undecided voters — as if that would capture anything about the issues most of America wants answered. And Jim Lehrer let the rules get smothered by his need to be kind to important people — with the consequence that he never even got to the part of the debate where “corruption” might have been an issue.

In Robert Caro’s latest Johnson biography, he recounts a famous story about Johnson’s decision to take up the cause of civil rights. Kennedy had just been murdered. The nation was looking for a new leader. But Johnson was being counseled as strongly as his advisers could counsel not to bring up a civil rights bill. As Caro retells it:

[I]n the early hours of the morning… “one of the wise, practical people around the table” told [Johnson] to his face that a president shouldn’t spend his time and power on lost causes, no matter how worthy those causes might be.

“Well, what the hell’s the presidency for?” Lyndon Johnson replied.

The rest, as they say, is history.

It may be too much to wish for a president with Johnson’s strength of character. But is it too much to wish for moderator who is Johnson-like? Too much to wish for a moderator who wonders, what is being a moderator for?

It’s not the job of the moderator to be liked. It’s not the job to seem agreeable. The job is to make sure that America understands what the candidates believe about the issues that America cares about. Moderator laissez faire won’t get us there. A real political journalist just might.

(Original post on HuffPo)

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What the Hell Is Being a Moderator For? http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/ http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/#comments Sun, 21 Oct 2012 15:00:18 +0000 http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/ For the first time in as long as we can tell, neither candidate for president is addressing one of the top 10 issues that Americans believe should be a priority for the next president. Indeed, not just one issue, but two.

Since 2000, Gallup has been asking Americans to identify “how important a priority each of the following issues should be for the next President of the United States.” Every year before this one, those issues at the top are exactly the issues the candidates addressed on their websites. (Click here to see the research.) The order maybe different. There may be other issues addressed that are not on that top 10 list. But in every election since 2000, every one of the top 10 gets at least some serious consideration.

Until this year. Of the top 10 issues that Gallup identified, two are not even mentioned on either candidate’s website: number two on the list (with 87% of Americans believing it “extremely or very important”) — “reducing corruption in the federal government,” and number nine (with 76%) — “overcoming political gridlock.”

Ranked more highly than terrorism, the deficit, schools or social security, Americans want “corruption” to end. More than tax reform, or affordable access to college, Americans want “gridlock” to end. Yet neither campaign thinks it necessary to even mention these top priorities.

Why?

Let’s focus on issue number two: “reducing corruption in the federal government.” It’s clear that by “corruption,” Americans don’t mean the crimes of Rod Blagojevich or Jack Abramoff. Those scandals were long ago, and our memory is short. Instead, the only sort of “corruption” that has had the focus of the news media is the endless campaign cash that every candidate for any office is now seen obsessively to seek. Super PACs and Citizens United: these are the triggers to what we mean today by “corruption.” In response to that corruption, Americans are looking for a democracy that doesn’t seem so slimy.

Yet neither Romney nor Obama wants to talk about this corruption, though no doubt for very different reasons. Though Americans hate the system, beltway Republicans (and Romney) apparently love it. Some think it’s the only way for Republicans to remain competitive. So it’s obviously best for them to keep silent about an issue not likely to win them support. And while Obama no doubt hates the system as much as anyone, to raise it now would be to remind us that he promised to “take up that fight” to change the system, but has not yet gotten around to it. Worse, there’s something seemingly hypocritical about attacking SuperPACs while encouraging friends to send support to your own.

So it’s no surprise that the candidates won’t volunteer a plan to address this “corruption.” But why is it that they are not asked anyway? Why isn’t it the core of journalistic ethics to get the candidates to address the issues America wants addressed, especially when it is clear that candidates themselves don’t want that issue addressed?

This is a question not easily answered, because it’s not clear anymore just what a political journalist is. Candidates appear on news programs on their terms, not terms set by the show. They agree to debate only if their lawyers are permitted to set the rules and scope — which was precisely why the League of Women Voters could no longer agree to host debates. In the endless competition for access, politicians set the terms for access. And even if they don’t explicitly put issues off the table, everyone understands the consequences of making a candidate uncomfortable. There’s always a next time, unless, of course, you make things really bad for the candidate this time.

But there is one political journalist who is free of these constraints: the moderator of a presidential debate. Candidates have no choice but to show up to the debates. They have no way to hide from a question directly put. So if there’s one person the system should count on to ask the questions America wants answered but the candidates want avoided, it is the moderator of a presidential debate.

Yet no moderator to date has accepted this responsibility. Candy Crowley moderated the questions of randomly selected undecided voters — as if that would capture anything about the issues most of America wants answered. And Jim Lehrer let the rules get smothered by his need to be kind to important people — with the consequence that he never even got to the part of the debate where “corruption” might have been an issue.

In Robert Caro’s latest Johnson biography, he recounts a famous story about Johnson’s decision to take up the cause of civil rights. Kennedy had just been murdered. The nation was looking for a new leader. But Johnson was being counseled as strongly as his advisers could counsel not to bring up a civil rights bill. As Caro retells it:

[I]n the early hours of the morning… “one of the wise, practical people around the table” told [Johnson] to his face that a president shouldn’t spend his time and power on lost causes, no matter how worthy those causes might be.

“Well, what the hell’s the presidency for?” Lyndon Johnson replied.

The rest, as they say, is history.

It may be too much to wish for a president with Johnson’s strength of character. But is it too much to wish for moderator who is Johnson-like? Too much to wish for a moderator who wonders, what is being a moderator for?

It’s not the job of the moderator to be liked. It’s not the job to seem agreeable. The job is to make sure that America understands what the candidates believe about the issues that America cares about. Moderator laissez faire won’t get us there. A real political journalist just might.

(Original post on HuffPo)

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What the Hell Is Being a Moderator For? http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/ http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/#comments Sun, 21 Oct 2012 15:00:18 +0000 http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/ For the first time in as long as we can tell, neither candidate for president is addressing one of the top 10 issues that Americans believe should be a priority for the next president. Indeed, not just one issue, but two.

Since 2000, Gallup has been asking Americans to identify “how important a priority each of the following issues should be for the next President of the United States.” Every year before this one, those issues at the top are exactly the issues the candidates addressed on their websites. (Click here to see the research.) The order maybe different. There may be other issues addressed that are not on that top 10 list. But in every election since 2000, every one of the top 10 gets at least some serious consideration.

Until this year. Of the top 10 issues that Gallup identified, two are not even mentioned on either candidate’s website: number two on the list (with 87% of Americans believing it “extremely or very important”) — “reducing corruption in the federal government,” and number nine (with 76%) — “overcoming political gridlock.”

Ranked more highly than terrorism, the deficit, schools or social security, Americans want “corruption” to end. More than tax reform, or affordable access to college, Americans want “gridlock” to end. Yet neither campaign thinks it necessary to even mention these top priorities.

Why?

Let’s focus on issue number two: “reducing corruption in the federal government.” It’s clear that by “corruption,” Americans don’t mean the crimes of Rod Blagojevich or Jack Abramoff. Those scandals were long ago, and our memory is short. Instead, the only sort of “corruption” that has had the focus of the news media is the endless campaign cash that every candidate for any office is now seen obsessively to seek. Super PACs and Citizens United: these are the triggers to what we mean today by “corruption.” In response to that corruption, Americans are looking for a democracy that doesn’t seem so slimy.

Yet neither Romney nor Obama wants to talk about this corruption, though no doubt for very different reasons. Though Americans hate the system, beltway Republicans (and Romney) apparently love it. Some think it’s the only way for Republicans to remain competitive. So it’s obviously best for them to keep silent about an issue not likely to win them support. And while Obama no doubt hates the system as much as anyone, to raise it now would be to remind us that he promised to “take up that fight” to change the system, but has not yet gotten around to it. Worse, there’s something seemingly hypocritical about attacking SuperPACs while encouraging friends to send support to your own.

So it’s no surprise that the candidates won’t volunteer a plan to address this “corruption.” But why is it that they are not asked anyway? Why isn’t it the core of journalistic ethics to get the candidates to address the issues America wants addressed, especially when it is clear that candidates themselves don’t want that issue addressed?

This is a question not easily answered, because it’s not clear anymore just what a political journalist is. Candidates appear on news programs on their terms, not terms set by the show. They agree to debate only if their lawyers are permitted to set the rules and scope — which was precisely why the League of Women Voters could no longer agree to host debates. In the endless competition for access, politicians set the terms for access. And even if they don’t explicitly put issues off the table, everyone understands the consequences of making a candidate uncomfortable. There’s always a next time, unless, of course, you make things really bad for the candidate this time.

But there is one political journalist who is free of these constraints: the moderator of a presidential debate. Candidates have no choice but to show up to the debates. They have no way to hide from a question directly put. So if there’s one person the system should count on to ask the questions America wants answered but the candidates want avoided, it is the moderator of a presidential debate.

Yet no moderator to date has accepted this responsibility. Candy Crowley moderated the questions of randomly selected undecided voters — as if that would capture anything about the issues most of America wants answered. And Jim Lehrer let the rules get smothered by his need to be kind to important people — with the consequence that he never even got to the part of the debate where “corruption” might have been an issue.

In Robert Caro’s latest Johnson biography, he recounts a famous story about Johnson’s decision to take up the cause of civil rights. Kennedy had just been murdered. The nation was looking for a new leader. But Johnson was being counseled as strongly as his advisers could counsel not to bring up a civil rights bill. As Caro retells it:

[I]n the early hours of the morning… “one of the wise, practical people around the table” told [Johnson] to his face that a president shouldn’t spend his time and power on lost causes, no matter how worthy those causes might be.

“Well, what the hell’s the presidency for?” Lyndon Johnson replied.

The rest, as they say, is history.

It may be too much to wish for a president with Johnson’s strength of character. But is it too much to wish for moderator who is Johnson-like? Too much to wish for a moderator who wonders, what is being a moderator for?

It’s not the job of the moderator to be liked. It’s not the job to seem agreeable. The job is to make sure that America understands what the candidates believe about the issues that America cares about. Moderator laissez faire won’t get us there. A real political journalist just might.

(Original post on HuffPo)

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http://www.lessig.org/2012/10/what-the-hell-is-being-a-moderator-for-2/feed/ 4
The No Lobbying Pledge http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/ http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/#comments Tue, 11 Sep 2012 19:10:58 +0000 http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/ 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.

(Original post on HuffPo)

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The No Lobbying Pledge http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/ http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/#comments Tue, 11 Sep 2012 19:10:58 +0000 http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/ 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.

(Original post on HuffPo)

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The No Lobbying Pledge http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/ http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/#comments Tue, 11 Sep 2012 19:10:58 +0000 http://www.lessig.org/2012/09/the-no-lobbying-pledge-2/ 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.

(Original post on HuffPo)

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The No Lobbying Pledge http://www.lessig.org/2012/09/the-no-lobbying-pledge-3/ http://www.lessig.org/2012/09/the-no-lobbying-pledge-3/#comments Tue, 11 Sep 2012 19:10:58 +0000 http://www.lessig.org/2012/09/the-no-lobbying-pledge-3/ 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.

(Original post on HuffPo)

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The Great Promise of Super-PACs http://www.lessig.org/2011/12/the-great-promise-of-super-pacs-2/ http://www.lessig.org/2011/12/the-great-promise-of-super-pacs-2/#comments Tue, 20 Dec 2011 14:30:04 +0000 http://www.lessig.org/2011/12/the-great-promise-of-super-pacs-2/ There’s a certain terror to the life of a Member of Congress that, with all their pomp and pretense, it’s easy to miss. This terror is new. No one yet knows precisely how to tame it. And it may ultimately prove to be the single most important motivator to real campaign finance reform.

The terror runs something like this: An incumbent goes into an election, fairly confident about her prospects. Money in the bank, polling in the low sixties, an opponent with little chance to close the gap. Then 30 days out, a super-PAC drops half a million dollars in the district, funding attack ads, and ads that support the challenger. Very quickly, an easy reelection is thrown into doubt.

Incumbents are beginning to recognize this pattern. The most terrifying bit — in the short term, at least — is how they are reacting. They can’t hope to hold in reserve enough money to respond to such an attack — funders don’t contribute to million dollar surpluses; they send their money to candidates on the edge. Nor can they turn to their largest contributors after the attack begins — by definition, those contributors have maxed out. There’s nothing more they can do.

So the incumbent has but one obvious insurance policy: super-PACs on her own side. To secure the protection the incumbent needs, the incumbent cozies up to the large but independent funders on his or her side, so that if a bomb gets dropped, there’s a ready supply of bombs to support the incumbent.

And how do you cozy up to a super-PAC, to guarantee they’ll defend you — “independently,” of course — if terror raises its ugly head? By behaving in the way that super-PAC demands. “We’d love to be able to help you, Senator, but our charter requires that we only support candidates who get 80% or better on our score card.” Incumbents thus work hard for good (super-PAC) grades. And like superpowers in a cold war, allegiance is secured with a simple understanding of defense.

This dynamic was first explained to me by former Senator Evan Bayh (D-IN). Bayh was on a panel about campaign finance reform; he was responding to a skeptic’s claim that there was no real evidence that money mattered to a Senator’s decisions. I left that panel convinced that there was little an incumbent could do to maintain her independence.

Then I met Congressman John Sarbanes.

Sarbanes is a three-term Democrat from Maryland. He is the son of the former Senator, who began his career in the same district. Over a glass of water at a local restaurant, Sarbanes explained to me his idea for super-PAC insurance — an idea that required no compromise of principle, and indeed, one that would only strengthen the incumbent’s support.

The key is small dollar contributors. If Sarbanes had an army of small dollar supporters, then he’d have someone to turn to if he were attacked. Someone who has given $50 in the past is likely to be able to give $50 again, especially in an emergency, especially to protect “her congressman” against an “outsider’s attack.”

But it’s not easy to gather small dollar contributors. Indeed, for congressional races, it almost never makes sense. A single large contributor is worth 100 $50 contributors. Most incumbents thus find it easier to raise from the top down. It takes real discipline to raise from the bottom up.

So Sarbanes has done something that possibly no one else in the history of politics has ever done: He has formally and voluntarily tied himself to a funding structure that forces him to raise small dollar contributions. Sarbanes has established two “challenge funds,” both now fully funded. The first fund (worth $500,000) can be drawn upon only when Sarbanes recruits 1,000 small contributors. The second (with $250,000) can be drawn upon only when those contributors have given at least $50,000. Until he hits the 1,000 contributor, and $50,0000 in contributions mark, he can’t touch the $750,000 in the funds. But once he does, his campaign will be fully funded — with super-PAC insurance bundled in for free.

Not many in Congress are likely to follow Sarbanes’ lead. His ingenious idea takes real work. But if envy for his independence among Members grows, there is an obviously easier way to get the same protection: proposals like the Fair Elections Now Act, that would amplify the value of small contributions, or as I’ve proposed, a simple tax rebate in the form of a democracy voucher of $50 per voter, that would flood the field with small dollar contributions. Or even better, a constitutional amendment that limited the ability of super-PACs to drop bombs in the first place. Or even better still, a mix of both small dollar funding legislation and a limit on super-PAC power. Any of these reforms would give Members for free what Sarbanes is working overtime to earn: the independence necessary to be free to lead.

And thus may this innovation turn out to be a story with hope. For the current system is not stable. Until the rise of super-PACs, the system favored the incumbents. Now the incumbents work for the super-PACs. It is a demeaning and demoralizing life for people who like to think highly of themselves and the institution they serve. At some point they will get that they can fix this. Soon after that point, they just might.

Meanwhile, you could support this movement for a Congress “Free to Lead” (as Buddy Roemer puts it) by joining Sarbanes’ army. Or at least by thanking him for his idea.

(Original post on HuffPo)

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The Great Promise of Super-PACs http://www.lessig.org/2011/12/the-great-promise-of-super-pacs-2/ http://www.lessig.org/2011/12/the-great-promise-of-super-pacs-2/#comments Tue, 20 Dec 2011 14:30:04 +0000 http://www.lessig.org/2011/12/the-great-promise-of-super-pacs-2/ There’s a certain terror to the life of a Member of Congress that, with all their pomp and pretense, it’s easy to miss. This terror is new. No one yet knows precisely how to tame it. And it may ultimately prove to be the single most important motivator to real campaign finance reform.

The terror runs something like this: An incumbent goes into an election, fairly confident about her prospects. Money in the bank, polling in the low sixties, an opponent with little chance to close the gap. Then 30 days out, a super-PAC drops half a million dollars in the district, funding attack ads, and ads that support the challenger. Very quickly, an easy reelection is thrown into doubt.

Incumbents are beginning to recognize this pattern. The most terrifying bit — in the short term, at least — is how they are reacting. They can’t hope to hold in reserve enough money to respond to such an attack — funders don’t contribute to million dollar surpluses; they send their money to candidates on the edge. Nor can they turn to their largest contributors after the attack begins — by definition, those contributors have maxed out. There’s nothing more they can do.

So the incumbent has but one obvious insurance policy: super-PACs on her own side. To secure the protection the incumbent needs, the incumbent cozies up to the large but independent funders on his or her side, so that if a bomb gets dropped, there’s a ready supply of bombs to support the incumbent.

And how do you cozy up to a super-PAC, to guarantee they’ll defend you — “independently,” of course — if terror raises its ugly head? By behaving in the way that super-PAC demands. “We’d love to be able to help you, Senator, but our charter requires that we only support candidates who get 80% or better on our score card.” Incumbents thus work hard for good (super-PAC) grades. And like superpowers in a cold war, allegiance is secured with a simple understanding of defense.

This dynamic was first explained to me by former Senator Evan Bayh (D-IN). Bayh was on a panel about campaign finance reform; he was responding to a skeptic’s claim that there was no real evidence that money mattered to a Senator’s decisions. I left that panel convinced that there was little an incumbent could do to maintain her independence.

Then I met Congressman John Sarbanes.

Sarbanes is a three-term Democrat from Maryland. He is the son of the former Senator, who began his career in the same district. Over a glass of water at a local restaurant, Sarbanes explained to me his idea for super-PAC insurance — an idea that required no compromise of principle, and indeed, one that would only strengthen the incumbent’s support.

The key is small dollar contributors. If Sarbanes had an army of small dollar supporters, then he’d have someone to turn to if he were attacked. Someone who has given $50 in the past is likely to be able to give $50 again, especially in an emergency, especially to protect “her congressman” against an “outsider’s attack.”

But it’s not easy to gather small dollar contributors. Indeed, for congressional races, it almost never makes sense. A single large contributor is worth 100 $50 contributors. Most incumbents thus find it easier to raise from the top down. It takes real discipline to raise from the bottom up.

So Sarbanes has done something that possibly no one else in the history of politics has ever done: He has formally and voluntarily tied himself to a funding structure that forces him to raise small dollar contributions. Sarbanes has established two “challenge funds,” both now fully funded. The first fund (worth $500,000) can be drawn upon only when Sarbanes recruits 1,000 small contributors. The second (with $250,000) can be drawn upon only when those contributors have given at least $50,000. Until he hits the 1,000 contributor, and $50,0000 in contributions mark, he can’t touch the $750,000 in the funds. But once he does, his campaign will be fully funded — with super-PAC insurance bundled in for free.

Not many in Congress are likely to follow Sarbanes’ lead. His ingenious idea takes real work. But if envy for his independence among Members grows, there is an obviously easier way to get the same protection: proposals like the Fair Elections Now Act, that would amplify the value of small contributions, or as I’ve proposed, a simple tax rebate in the form of a democracy voucher of $50 per voter, that would flood the field with small dollar contributions. Or even better, a constitutional amendment that limited the ability of super-PACs to drop bombs in the first place. Or even better still, a mix of both small dollar funding legislation and a limit on super-PAC power. Any of these reforms would give Members for free what Sarbanes is working overtime to earn: the independence necessary to be free to lead.

And thus may this innovation turn out to be a story with hope. For the current system is not stable. Until the rise of super-PACs, the system favored the incumbents. Now the incumbents work for the super-PACs. It is a demeaning and demoralizing life for people who like to think highly of themselves and the institution they serve. At some point they will get that they can fix this. Soon after that point, they just might.

Meanwhile, you could support this movement for a Congress “Free to Lead” (as Buddy Roemer puts it) by joining Sarbanes’ army. Or at least by thanking him for his idea.

(Original post on HuffPo)

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One More Try: The Rules Versus the Game http://www.lessig.org/2011/10/one-more-try-the-rules-versus-the-game-2/ http://www.lessig.org/2011/10/one-more-try-the-rules-versus-the-game-2/#comments Thu, 27 Oct 2011 18:57:20 +0000 http://www.lessig.org/2011/10/one-more-try-the-rules-versus-the-game-2/ [Dave Zirin has replied to my response. This issue about strategy is critical and important. Let me try one more time.]

Still missing the point. Let me try, Mr. @EdgeofSports, one last time. This time with a sports metaphor:

Imagine you’re a player with the Chicago Bears. You’re on the field, about to begin a game with the Green Bay Packers. Just before kick-off, someone races onto the field screaming: “Guys, please, can’t we all just get along? Enough of this fighting. Let’s just shake hands and go get a beer.”

I am not that guy, Dave. That’s not my argument (now stated again and again and again). Instead, I’m the guy saying something like: “Hey, Bears and Packers: Can we have a conversation about whether a tackler should be allowed to use his helmet when making a tackle?” Or translated for the non-sports-readers (which, before my friend Mark Snyderman gave me these examples, I, too, would have been), I’m the guy saying: we need to have a conversation about the rules of the game, because they are not working for any of us.

Or once again: Imagine you’re the pitcher for the Boston Red Sox (as most of the kids (boys and girls) where I come from do, at least once a day). You’re on the pitching mound, about to throw against the Yankees’ star batter. You look up, and some guy is flying a plane pulling a banner that says: “Look, I know some of us are Sox fans, and others of us are Yankees fans, but we’re all baseball fans. Let’s just stop all this fighting, link arms, and learn to work together.”

I am not that idiot either, Dave. Instead, and again, I am your teammate (no doubt, I’d be in the dugout and you’d be pitching, but still), asking whether it might make sense to sit down with the Yankees (and others in our league) and rethink the instant replay rule. Baseball, I believe, should be governed by honest umpires, not HD cameras.

In both cases, I’m the guy saying we should think about the rules. I’m not trying to say we should dampen the competitive passion of our own team. Or deny the justice in our own cause. Or to betray our own objectives. But competition happens on a field; that field is governed by rules; those rules only get changed if everyone (or at least the 99%) on the field agrees. So I think we need to find a way to talk to the 99% — Liberals, Conservatives, Moderates, Libertarians — about whether and how those rules should be changed.

Now as crazy as it is to race onto a football field and urge a kumbayah moment, or to buzz Fenway Park to urge inter-team love, it is just as crazy to label as disloyal a team member who is arguing that we need to sit down to talk about the rules of the game. It may be disloyal to argue that you shouldn’t fight hard against the other team. It is likely stupid, as a coach, to start a game with a lecture about how decent and hard working the other side is. But it is neither stupid nor disloyal to push for a respectful conversation with the other side when you believe the rules of the game are not working — for you and for the other side.

And that is my belief. I believe this system is corrupt. I believe that corruption hurts both the (populist) Left and the (populist) Right. And because I believe it hurts both of us populists, I believe there is a reason to try to engage with people I otherwise disagree with to see whether we can, first, agree about this corruption, and second, take steps to reform it. I believe that 99% of us — Liberal and Conservative, Leftist and Libertarians, Moderates, Tea Party supporters, Coffee Party Activists, much of the ACLU — could actually agree about the corruption that is this system, and agree to work together to change it.

It won’t be easy to get that agreement. It isn’t obvious how to even facilitate the conversation. But a good first step in that project would be to resolve not to call (again, baselessly, but put that aside) the other side “racists.” Instead, that conversation begins by acknowledging our differences, and accepting our different loyalties, yet working with respect to engage people we disagree with about the possibility that there might be something more fundamental — like changing the rules of the game — that differences notwithstanding, we might agree upon.

I get that respect is not your style. I doubt our politics are much different, but I do lean more to Gandhi (“What makes you think I hate the British?“) than to Malcolm X. But you rally hate not only of your opponents, but also of your allies, with prose that reek of condescension (“put down the high school citizenship textbook”), attack with falseness (“Please don’t tell me to love the Tea Party” — where have I ever told anyone to support, let alone, love the Tea Party?) and repeatedly demand that I just go home (“please get out of the way”; “don’t be surprised if theres no US. Just ‘you.’”). I get that makes things simpler — the Tea Party is racist, and I’m ignorant — but in my experience, I’ve not actually seen that style do much to convince anyone of anything.

At the very least, you’ve not shown me how hate gets you to 67 Senators, or 75% of the States. Dr. King didn’t need to change the Constitution. We do. And nothing in what I’ve said suggests anyone should “wait” to fight for anything of substance: please, coach, rally the team to fight for all the things you and I believe in. What I’ve said, again and again and again, is that as well as fighting for what we believe, we need to identify what we all believe, and use that common belief to end the corruption that blocks us, and them, from getting what we, all of us, want.

(Original post on HuffPo)

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One More Try: The Rules Versus the Game http://www.lessig.org/2011/10/one-more-try-the-rules-versus-the-game-2/ http://www.lessig.org/2011/10/one-more-try-the-rules-versus-the-game-2/#comments Thu, 27 Oct 2011 18:57:20 +0000 http://www.lessig.org/2011/10/one-more-try-the-rules-versus-the-game-2/ [Dave Zirin has replied to my response. This issue about strategy is critical and important. Let me try one more time.]

Still missing the point. Let me try, Mr. @EdgeofSports, one last time. This time with a sports metaphor:

Imagine you’re a player with the Chicago Bears. You’re on the field, about to begin a game with the Green Bay Packers. Just before kick-off, someone races onto the field screaming: “Guys, please, can’t we all just get along? Enough of this fighting. Let’s just shake hands and go get a beer.”

I am not that guy, Dave. That’s not my argument (now stated again and again and again). Instead, I’m the guy saying something like: “Hey, Bears and Packers: Can we have a conversation about whether a tackler should be allowed to use his helmet when making a tackle?” Or translated for the non-sports-readers (which, before my friend Mark Snyderman gave me these examples, I, too, would have been), I’m the guy saying: we need to have a conversation about the rules of the game, because they are not working for any of us.

Or once again: Imagine you’re the pitcher for the Boston Red Sox (as most of the kids (boys and girls) where I come from do, at least once a day). You’re on the pitching mound, about to throw against the Yankees’ star batter. You look up, and some guy is flying a plane pulling a banner that says: “Look, I know some of us are Sox fans, and others of us are Yankees fans, but we’re all baseball fans. Let’s just stop all this fighting, link arms, and learn to work together.”

I am not that idiot either, Dave. Instead, and again, I am your teammate (no doubt, I’d be in the dugout and you’d be pitching, but still), asking whether it might make sense to sit down with the Yankees (and others in our league) and rethink the instant replay rule. Baseball, I believe, should be governed by honest umpires, not HD cameras.

In both cases, I’m the guy saying we should think about the rules. I’m not trying to say we should dampen the competitive passion of our own team. Or deny the justice in our own cause. Or to betray our own objectives. But competition happens on a field; that field is governed by rules; those rules only get changed if everyone (or at least the 99%) on the field agrees. So I think we need to find a way to talk to the 99% — Liberals, Conservatives, Moderates, Libertarians — about whether and how those rules should be changed.

Now as crazy as it is to race onto a football field and urge a kumbayah moment, or to buzz Fenway Park to urge inter-team love, it is just as crazy to label as disloyal a team member who is arguing that we need to sit down to talk about the rules of the game. It may be disloyal to argue that you shouldn’t fight hard against the other team. It is likely stupid, as a coach, to start a game with a lecture about how decent and hard working the other side is. But it is neither stupid nor disloyal to push for a respectful conversation with the other side when you believe the rules of the game are not working — for you and for the other side.

And that is my belief. I believe this system is corrupt. I believe that corruption hurts both the (populist) Left and the (populist) Right. And because I believe it hurts both of us populists, I believe there is a reason to try to engage with people I otherwise disagree with to see whether we can, first, agree about this corruption, and second, take steps to reform it. I believe that 99% of us — Liberal and Conservative, Leftist and Libertarians, Moderates, Tea Party supporters, Coffee Party Activists, much of the ACLU — could actually agree about the corruption that is this system, and agree to work together to change it.

It won’t be easy to get that agreement. It isn’t obvious how to even facilitate the conversation. But a good first step in that project would be to resolve not to call (again, baselessly, but put that aside) the other side “racists.” Instead, that conversation begins by acknowledging our differences, and accepting our different loyalties, yet working with respect to engage people we disagree with about the possibility that there might be something more fundamental — like changing the rules of the game — that differences notwithstanding, we might agree upon.

I get that respect is not your style. I doubt our politics are much different, but I do lean more to Gandhi (“What makes you think I hate the British?“) than to Malcolm X. But you rally hate not only of your opponents, but also of your allies, with prose that reek of condescension (“put down the high school citizenship textbook”), attack with falseness (“Please don’t tell me to love the Tea Party” — where have I ever told anyone to support, let alone, love the Tea Party?) and repeatedly demand that I just go home (“please get out of the way”; “don’t be surprised if theres no US. Just ‘you.’”). I get that makes things simpler — the Tea Party is racist, and I’m ignorant — but in my experience, I’ve not actually seen that style do much to convince anyone of anything.

At the very least, you’ve not shown me how hate gets you to 67 Senators, or 75% of the States. Dr. King didn’t need to change the Constitution. We do. And nothing in what I’ve said suggests anyone should “wait” to fight for anything of substance: please, coach, rally the team to fight for all the things you and I believe in. What I’ve said, again and again and again, is that as well as fighting for what we believe, we need to identify what we all believe, and use that common belief to end the corruption that blocks us, and them, from getting what we, all of us, want.

(Original post on HuffPo)

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A Reply to the @EdgeofSports: Who Exactly Are the 99%? http://www.lessig.org/2011/10/a-reply-to-the-edgeofsports-who-exactly-are-the-99-2/ http://www.lessig.org/2011/10/a-reply-to-the-edgeofsports-who-exactly-are-the-99-2/#comments Wed, 26 Oct 2011 13:14:27 +0000 http://www.lessig.org/2011/10/a-reply-to-the-edgeofsports-who-exactly-are-the-99-2/ Sometime-HuffPost blogger, and Nation contributor Dave Zirin has written a brilliant barn-raising response to my last HuffPost piece. Please read all of it, but here’s the bit I want call out. Zirin states: “But by going to Occupy sites and arguing for a Tea Party alliance, Professor Lessig, to put it mildly, isn’t helping.”

Helping what, exactly, Dave?

Helping the Left rally the Left? Agreed. That isn’t my aim. The #Occupy movements are doing that quite well on their own. As a Liberal, I celebrate that rally.

Helping the Left lead a movement for real reform? You tell me how your path does that better.

Here’s the fact about America: It takes an insanely large majority to make any fundamental change. You want Citizens United reversed, it is going to take 75% of states to do it. You want public funding of public elections? It’s going to take 67 Senators to get it. You want to end the corruption that makes it impossible to get any of the things liberals push? It’s going to take a broad based movement that cuts across factions, whether right (as in correct) or Right (as in not Left).

So you tell me how calling people you disagree with “racists” (which you predicated of the Tea Party because of the behavior of some of its members, even though an ABC analysis has concluded that views on race “are not significant predictors of support for the Tea Party movement”) is going to get us to 38 states? Or 67 Senators? Or 80% of the public’s support, which any fundamental change is going to require? Explain how chest-thumping self-righteousness about how hateful “they” are “is helping” that?

Maybe you don’t think such fundamental reform is needed, Dave. Maybe you think the political system is just fine. That the poor do perfectly well in a system where the rich fund political campaigns. That the middle class can hold its own in a world where corporations are free to spend endlessly to push the most ridiculous bullshit as “public” policy.

But if you think that, you’re from Mars. I’m from Earth. And here on Earth, here in America, our political system is f*cked, and your self-righteous indignation “is not helping” us to get it fixed.

It’s great to rally the 99%. It is a relief to have such a clear and powerful slogan. But explain this, because I’m a lawyer, and not so great with numbers: Gallup’s latest poll finds 41% of Americans who call themselves “conservative.” 36% call themselves “moderate.” Liberals account for 21%. In a different poll, Gallup finds 30% of Americans who “support” the Tea Party.

So who exactly are we not allowed to work with, Dave? 30% of America? 41% of America? All but 21% of America? And when you exclude 30%, or 41%, or 79% of Americans, how exactly are you left with 99%?

Talk about wanting to have it “both ways”! How can you claim to speak for 99% but refuse to talk to 30%? (And just to be clear: the 30% of Americans who support the Tea Party are not the 1% “superrich.” I checked. With a calculator.)

And finally as to one of the commentators on Dave’s essay who finds me “poisonous,” and said I said: “OWS needs to drop the ‘We are the 99%’ slogan because it might hurt the feelings of the rich.” What I said was not that the movement should give up the slogan 99% because it offended. I said it should instead talk about the 99.95%. That’s the percentage of Americans who did not max out in giving in the last Congressional election. That is the percentage that becomes invisible in the money-feeding-fest that is DC.

So if you really want to rally the 99%, you might begin by identifying those things that 99% might actually agree about. That the 30% of Americans who call themselves “supporters” of the Tea Party are racists is not a statement likely to garner the support of at least that 30%. (And again, as ABC found, it’s not even true).

On the other hand, 99% of America should be perfectly willing to agree that a system in which the top 1% — or better, .05% — have more power to direct public policy than do the 99% or 99.95% is wrong. And must be changed. Before this nation can again call itself a democracy (for those on the Left) or a Republic (for those on the Right). This “Republic,” by which the Framers meant a “representative democracy,” by which they intended a body “dependent upon the People ALONE,” is not.

That, too, must change. Meaning, in addition to all the things we Liberals want, we must change that as well. And my view is that if we changed that corruption first, we might actually find it a bit easier to get those other things too.

(Original post on HuffPo)

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A Reply to the @EdgeofSports: Who Exactly Are the 99%? http://www.lessig.org/2011/10/a-reply-to-the-edgeofsports-who-exactly-are-the-99-2/ http://www.lessig.org/2011/10/a-reply-to-the-edgeofsports-who-exactly-are-the-99-2/#comments Wed, 26 Oct 2011 13:14:27 +0000 http://www.lessig.org/2011/10/a-reply-to-the-edgeofsports-who-exactly-are-the-99-2/ Sometime-HuffPost blogger, and Nation contributor Dave Zirin has written a brilliant barn-raising response to my last HuffPost piece. Please read all of it, but here’s the bit I want call out. Zirin states: “But by going to Occupy sites and arguing for a Tea Party alliance, Professor Lessig, to put it mildly, isn’t helping.”

Helping what, exactly, Dave?

Helping the Left rally the Left? Agreed. That isn’t my aim. The #Occupy movements are doing that quite well on their own. As a Liberal, I celebrate that rally.

Helping the Left lead a movement for real reform? You tell me how your path does that better.

Here’s the fact about America: It takes an insanely large majority to make any fundamental change. You want Citizens United reversed, it is going to take 75% of states to do it. You want public funding of public elections? It’s going to take 67 Senators to get it. You want to end the corruption that makes it impossible to get any of the things liberals push? It’s going to take a broad based movement that cuts across factions, whether right (as in correct) or Right (as in not Left).

So you tell me how calling people you disagree with “racists” (which you predicated of the Tea Party because of the behavior of some of its members, even though an ABC analysis has concluded that views on race “are not significant predictors of support for the Tea Party movement”) is going to get us to 38 states? Or 67 Senators? Or 80% of the public’s support, which any fundamental change is going to require? Explain how chest-thumping self-righteousness about how hateful “they” are “is helping” that?

Maybe you don’t think such fundamental reform is needed, Dave. Maybe you think the political system is just fine. That the poor do perfectly well in a system where the rich fund political campaigns. That the middle class can hold its own in a world where corporations are free to spend endlessly to push the most ridiculous bullshit as “public” policy.

But if you think that, you’re from Mars. I’m from Earth. And here on Earth, here in America, our political system is f*cked, and your self-righteous indignation “is not helping” us to get it fixed.

It’s great to rally the 99%. It is a relief to have such a clear and powerful slogan. But explain this, because I’m a lawyer, and not so great with numbers: Gallup’s latest poll finds 41% of Americans who call themselves “conservative.” 36% call themselves “moderate.” Liberals account for 21%. In a different poll, Gallup finds 30% of Americans who “support” the Tea Party.

So who exactly are we not allowed to work with, Dave? 30% of America? 41% of America? All but 21% of America? And when you exclude 30%, or 41%, or 79% of Americans, how exactly are you left with 99%?

Talk about wanting to have it “both ways”! How can you claim to speak for 99% but refuse to talk to 30%? (And just to be clear: the 30% of Americans who support the Tea Party are not the 1% “superrich.” I checked. With a calculator.)

And finally as to one of the commentators on Dave’s essay who finds me “poisonous,” and said I said: “OWS needs to drop the ‘We are the 99%’ slogan because it might hurt the feelings of the rich.” What I said was not that the movement should give up the slogan 99% because it offended. I said it should instead talk about the 99.95%. That’s the percentage of Americans who did not max out in giving in the last Congressional election. That is the percentage that becomes invisible in the money-feeding-fest that is DC.

So if you really want to rally the 99%, you might begin by identifying those things that 99% might actually agree about. That the 30% of Americans who call themselves “supporters” of the Tea Party are racists is not a statement likely to garner the support of at least that 30%. (And again, as ABC found, it’s not even true).

On the other hand, 99% of America should be perfectly willing to agree that a system in which the top 1% — or better, .05% — have more power to direct public policy than do the 99% or 99.95% is wrong. And must be changed. Before this nation can again call itself a democracy (for those on the Left) or a Republic (for those on the Right). This “Republic,” by which the Framers meant a “representative democracy,” by which they intended a body “dependent upon the People ALONE,” is not.

That, too, must change. Meaning, in addition to all the things we Liberals want, we must change that as well. And my view is that if we changed that corruption first, we might actually find it a bit easier to get those other things too.

(Original post on HuffPo)

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Something More Than Polarization http://www.lessig.org/2011/10/something-more-than-polarization-2/ http://www.lessig.org/2011/10/something-more-than-polarization-2/#comments Tue, 25 Oct 2011 14:00:30 +0000 http://www.lessig.org/2011/10/something-more-than-polarization-2/ At the end of September, I helped organize a conference at Harvard about the idea of calling a(n Article V) constitutional convention. The event was co-hosted by the Tea Party Patriots. And although that organization has not endorsed a convention, there are many conservatives and libertarians who do support such a call. The conference was designed to explore the possibility, and to demonstrate that people from the Left (my friends) and that people from the Right (the Tea Party Patriots, and some of my friends) could discuss these issues like decent souls do.

At the opening session, Tea Party Patriot co-founder Mark Meckler gave by far the most impressive speech of the event. In it, he condemned the business model of hate. “The politicians profit,” Meckler told us, “when we are inflamed against each other.” It was an inspiring charge to launch our two day conference, and it set the tone for an extraordinary and productive weekend.

Dial forward one month: A few days ago I received an email from the Tea Party Patriots. The aim of the missive was to insist that the #Occupy movement was not the Tea Party. The #Occupiers, the letter stated, were “America-hating anarchists who want to take their anger out on ordinary, productive citizens.” And then immediately after that charge, the letter had a link in bold: “Please make an urgent online contribution of $15, $20, $25, $50, $100 or whatever you can afford to Tea Party Patriots right away.”

This same dynamic happens the other way round.

On Saturday I was wandering through the #OccupySeattle protest. I checked my email, and someone had forwarded a link to a tweet about a speech at the #OccupyChicago event. David Zirin, a writer for the wonderful, and left-wing, The Nation (and sometimes, for HuffPo), was leading a teach-in. He was also leading the audience in a chorus of boos about an idea that I had advanced at a teach-in at #OccupyKSt earlier that week. The tweet quoted Zirin saying “I can tell by your boos you agree with me that that’s horseshit.” Shortly afterwards, there were echos in the twitter-verse about my “dumb idea.”

Here was my “dumb idea”: At the @OccupyKSt teach-in, I told the audience that they should hold firm to their liberal views. That I did not believe in compromising one’s values. That liberals had compromised enough.

But that if the #Occupy movements are to have any long term effect, they need to recognize the diversity that is this Nation, and to reach out to others whose beliefs they don’t share. That the movement needs to find the common ground between the populists on the Right and the populists on the Left. And that in that common ground lies the only potential for real reform. “You may or may not believe in capitalism,” I told the #Occupiers, “but no one believes in crony capitalism, and crony capitalism is precisely the corruption that is our Congress.” So build two lists of demands, I said later at that event: One of what “We believe.” One of what “We ALL believe.” And let that second list then found a movement that will restore this Republic.

That was my “horseshit,” as Zirin tagged it. And as he tweeted me in a followup, “Given the Tea Party’s politics, I don’t think you can have it both ways.”

“I’m not having ‘it’ both ways,” I responded. “There are two ‘its.’” And “If you can’t rec[ognize the] diversity of US, [you are] not US.”

“If you champion tea party alliances,” Zirin retorted, with the almost irresistible snarkiness of Twitter, “don’t be surprised if theres no US. Just ‘you.’”

I’m a fan of The Nation. I wish more people would read it. And better, subscribe to it. I hope it succeeds in seeding the spread of activism on the Left. I hope we on the Left can once again find the courage to call ourselves “Liberals” and be proud of it. The Nation is a constant argument for that courage.

But I increasingly think that we all — on the Left and the Right — need to carry around two hats. One hat should say, “Working for my side.” The other should say, “Working for U.S.” Both vocations are noble and fair. But they are different. It is completely legitimate for the Tea Party to rally its troops. It is the nature of modern organizing that you rally to raise money. But rallying Americans to the Right is different from rallying Americans to fix the corruption that is this government: one speaks to some of us; the other speaks to all of us. And if anyone in the Tea Party movement believes their values or ideas are going to get 80% of Americans to unite, they’re deluded, or worse.

The same is true on the Left. I love the #Occupy rallies. I wish we on the Left had more of their energy to get our side off the couch and to the polls. I wish we had 10,000 teach-ins across the Nation, in living rooms as well as with #occupiers. But if some on our side think that a rhetoric rejecting free markets and demanding socialized banks (in the Left wing version of socialized, not the crony-capitalist version — socialized risk, privatized benefit — that they enjoy now) is going to get 80% of Americans to unite, then they are deluded or worse.

We Americans are diverse. We have different views. Some of us want more government. Some of us want less. Some think the state has done enough to achieve equality. Some think it’s not begun to do its job. Some want flat taxes. Or no taxes. Some want progressive taxes. Or at least more taxes. We are different in a million ways, we Americans, but we are all equally Americans. And if you’re leading a movement that won’t acknowledge that difference (or more frighteningly, that believes that mere rhetoric is going to erase that difference), then you’re not looking for fundamental reform. You’re looking for a putsch.

This Nation needs fundamental reform. For that, our constitution requires 75% of states to agree. Thus, if we want real change, we must find those ideas upon which 75% of states can actually agree.

The challenge for all of us is whether despite our differences, there are those ideas. Whether there is common ground enough to bring about real change.

That is the question I care most about right now: finding common ground. It may not be there, but I believe it is. I’ve built organizations, mobilized thousands of volunteers, given hundreds of lectures, and now written a book to argue that it is. But regardless of whether there is, when I or others try to find it, or motivate people to find it, or to talk about it, or to dream for it, we’re doing something different from what we do when we wear the “Working for my side” hat. Something different. And IMHO, right now, something critical and important.

So I get the need for the Tea Party to practice the politics of division. No movement does anything more. But the hard question now is whether we can also play the politics of “e pluribus unum.” At Harvard, Meckler told us that the Tea Partiers “are not racists. They are not homophobes. They are your fellow citizens.” That is no doubt correct — even if there are individuals in that movement who are what the movement is not. But I’ve seen the #Occupiers, in now at least three cities. The same must be said of them: They are not “America-hating anarchists” — even if there are anarchists among them. “They are our fellow citizens.”

And I get the need to rally souls, as Zirin did, to address the important “issues of race, sexism, LGBT.” But it can’t be “horseshit,” can it?, to also ask us to practice another great liberal value — tolerance — at least enough to talk about an alliance with those with whom we disagree. It can’t be betrayal to ask whether despite our having few common ends, we might indeed have a common enemy.

Almost 225 years ago, seventy-four men huddled in a stuffy hall in Philadelphia. They met in secret and did much more than was planned when their meeting was called: they crafted a new constitution. Our constitution.

We today think of those 74 delegates as all the same: white men, who dressed the same, all coming from essentially the same class. But they were very different. There were men in that room who believed in slavery. There were men in that room who believed slavery was the moral abomination of their time.

Yet they bracketed those differences long enough to craft a Republic within which differences could be worked out. It took too long to get to the right answer about slavery. But there was ground enough in their new government to work through differences enough to save this nation.

Whatever the differences are between the Tea Party and the #occupiers, they are not as profound or as important as the difference between slave holders and abolitionists. And whatever the challenges we face today, they are not as great or difficult as the challenge of crafting a whole new form of government.

We need the courage to practice what they did. We need to put aside the business model of hate, and focus on the common ground of possibility. Americans, whether Left or Right, have lost faith in this government. Americans, whether Left or Right, believe this Congress is bought. We need a movement that can say, “whatever else we might disagree about, we all agree that this corruption must end.”

For we can’t afford to simply indulge the passion of our differences. Not anymore. The challenges we face as a Nation are just too great. It is time for us to practice a politics that doesn’t fit the business model of Fox v. MSNBC, of The Nation v. National Review, of the Tea Party v. the gaggle of Left-leaning organizations that would claim the #Occupiers. It might not pay, it might not drive ad revenues, it might not rally members: but sometimes those goals are just not the most important.

(Original post on HuffPo)

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Something More Than Polarization http://www.lessig.org/2011/10/something-more-than-polarization-2/ http://www.lessig.org/2011/10/something-more-than-polarization-2/#comments Tue, 25 Oct 2011 14:00:30 +0000 http://www.lessig.org/2011/10/something-more-than-polarization-2/ At the end of September, I helped organize a conference at Harvard about the idea of calling a(n Article V) constitutional convention. The event was co-hosted by the Tea Party Patriots. And although that organization has not endorsed a convention, there are many conservatives and libertarians who do support such a call. The conference was designed to explore the possibility, and to demonstrate that people from the Left (my friends) and that people from the Right (the Tea Party Patriots, and some of my friends) could discuss these issues like decent souls do.

At the opening session, Tea Party Patriot co-founder Mark Meckler gave by far the most impressive speech of the event. In it, he condemned the business model of hate. “The politicians profit,” Meckler told us, “when we are inflamed against each other.” It was an inspiring charge to launch our two day conference, and it set the tone for an extraordinary and productive weekend.

Dial forward one month: A few days ago I received an email from the Tea Party Patriots. The aim of the missive was to insist that the #Occupy movement was not the Tea Party. The #Occupiers, the letter stated, were “America-hating anarchists who want to take their anger out on ordinary, productive citizens.” And then immediately after that charge, the letter had a link in bold: “Please make an urgent online contribution of $15, $20, $25, $50, $100 or whatever you can afford to Tea Party Patriots right away.”

This same dynamic happens the other way round.

On Saturday I was wandering through the #OccupySeattle protest. I checked my email, and someone had forwarded a link to a tweet about a speech at the #OccupyChicago event. David Zirin, a writer for the wonderful, and left-wing, The Nation (and sometimes, for HuffPo), was leading a teach-in. He was also leading the audience in a chorus of boos about an idea that I had advanced at a teach-in at #OccupyKSt earlier that week. The tweet quoted Zirin saying “I can tell by your boos you agree with me that that’s horseshit.” Shortly afterwards, there were echos in the twitter-verse about my “dumb idea.”

Here was my “dumb idea”: At the @OccupyKSt teach-in, I told the audience that they should hold firm to their liberal views. That I did not believe in compromising one’s values. That liberals had compromised enough.

But that if the #Occupy movements are to have any long term effect, they need to recognize the diversity that is this Nation, and to reach out to others whose beliefs they don’t share. That the movement needs to find the common ground between the populists on the Right and the populists on the Left. And that in that common ground lies the only potential for real reform. “You may or may not believe in capitalism,” I told the #Occupiers, “but no one believes in crony capitalism, and crony capitalism is precisely the corruption that is our Congress.” So build two lists of demands, I said later at that event: One of what “We believe.” One of what “We ALL believe.” And let that second list then found a movement that will restore this Republic.

That was my “horseshit,” as Zirin tagged it. And as he tweeted me in a followup, “Given the Tea Party’s politics, I don’t think you can have it both ways.”

“I’m not having ‘it’ both ways,” I responded. “There are two ‘its.’” And “If you can’t rec[ognize the] diversity of US, [you are] not US.”

“If you champion tea party alliances,” Zirin retorted, with the almost irresistible snarkiness of Twitter, “don’t be surprised if theres no US. Just ‘you.’”

I’m a fan of The Nation. I wish more people would read it. And better, subscribe to it. I hope it succeeds in seeding the spread of activism on the Left. I hope we on the Left can once again find the courage to call ourselves “Liberals” and be proud of it. The Nation is a constant argument for that courage.

But I increasingly think that we all — on the Left and the Right — need to carry around two hats. One hat should say, “Working for my side.” The other should say, “Working for U.S.” Both vocations are noble and fair. But they are different. It is completely legitimate for the Tea Party to rally its troops. It is the nature of modern organizing that you rally to raise money. But rallying Americans to the Right is different from rallying Americans to fix the corruption that is this government: one speaks to some of us; the other speaks to all of us. And if anyone in the Tea Party movement believes their values or ideas are going to get 80% of Americans to unite, they’re deluded, or worse.

The same is true on the Left. I love the #Occupy rallies. I wish we on the Left had more of their energy to get our side off the couch and to the polls. I wish we had 10,000 teach-ins across the Nation, in living rooms as well as with #occupiers. But if some on our side think that a rhetoric rejecting free markets and demanding socialized banks (in the Left wing version of socialized, not the crony-capitalist version — socialized risk, privatized benefit — that they enjoy now) is going to get 80% of Americans to unite, then they are deluded or worse.

We Americans are diverse. We have different views. Some of us want more government. Some of us want less. Some think the state has done enough to achieve equality. Some think it’s not begun to do its job. Some want flat taxes. Or no taxes. Some want progressive taxes. Or at least more taxes. We are different in a million ways, we Americans, but we are all equally Americans. And if you’re leading a movement that won’t acknowledge that difference (or more frighteningly, that believes that mere rhetoric is going to erase that difference), then you’re not looking for fundamental reform. You’re looking for a putsch.

This Nation needs fundamental reform. For that, our constitution requires 75% of states to agree. Thus, if we want real change, we must find those ideas upon which 75% of states can actually agree.

The challenge for all of us is whether despite our differences, there are those ideas. Whether there is common ground enough to bring about real change.

That is the question I care most about right now: finding common ground. It may not be there, but I believe it is. I’ve built organizations, mobilized thousands of volunteers, given hundreds of lectures, and now written a book to argue that it is. But regardless of whether there is, when I or others try to find it, or motivate people to find it, or to talk about it, or to dream for it, we’re doing something different from what we do when we wear the “Working for my side” hat. Something different. And IMHO, right now, something critical and important.

So I get the need for the Tea Party to practice the politics of division. No movement does anything more. But the hard question now is whether we can also play the politics of “e pluribus unum.” At Harvard, Meckler told us that the Tea Partiers “are not racists. They are not homophobes. They are your fellow citizens.” That is no doubt correct — even if there are individuals in that movement who are what the movement is not. But I’ve seen the #Occupiers, in now at least three cities. The same must be said of them: They are not “America-hating anarchists” — even if there are anarchists among them. “They are our fellow citizens.”

And I get the need to rally souls, as Zirin did, to address the important “issues of race, sexism, LGBT.” But it can’t be “horseshit,” can it?, to also ask us to practice another great liberal value — tolerance — at least enough to talk about an alliance with those with whom we disagree. It can’t be betrayal to ask whether despite our having few common ends, we might indeed have a common enemy.

Almost 225 years ago, seventy-four men huddled in a stuffy hall in Philadelphia. They met in secret and did much more than was planned when their meeting was called: they crafted a new constitution. Our constitution.

We today think of those 74 delegates as all the same: white men, who dressed the same, all coming from essentially the same class. But they were very different. There were men in that room who believed in slavery. There were men in that room who believed slavery was the moral abomination of their time.

Yet they bracketed those differences long enough to craft a Republic within which differences could be worked out. It took too long to get to the right answer about slavery. But there was ground enough in their new government to work through differences enough to save this nation.

Whatever the differences are between the Tea Party and the #occupiers, they are not as profound or as important as the difference between slave holders and abolitionists. And whatever the challenges we face today, they are not as great or difficult as the challenge of crafting a whole new form of government.

We need the courage to practice what they did. We need to put aside the business model of hate, and focus on the common ground of possibility. Americans, whether Left or Right, have lost faith in this government. Americans, whether Left or Right, believe this Congress is bought. We need a movement that can say, “whatever else we might disagree about, we all agree that this corruption must end.”

For we can’t afford to simply indulge the passion of our differences. Not anymore. The challenges we face as a Nation are just too great. It is time for us to practice a politics that doesn’t fit the business model of Fox v. MSNBC, of The Nation v. National Review, of the Tea Party v. the gaggle of Left-leaning organizations that would claim the #Occupiers. It might not pay, it might not drive ad revenues, it might not rally members: but sometimes those goals are just not the most important.

(Original post on HuffPo)

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A Letter to the #Occup(iers): The Principle of Non-Contradiction http://www.lessig.org/2011/10/a-letter-to-the-occupiers-the-principle-of-non-contradiction-2/ http://www.lessig.org/2011/10/a-letter-to-the-occupiers-the-principle-of-non-contradiction-2/#comments Wed, 12 Oct 2011 18:03:19 +0000 http://www.lessig.org/2011/10/a-letter-to-the-occupiers-the-principle-of-non-contradiction-2/ Like a fever, revolutions come in waves. And if this is a revolution, then it broke first on November 4, 2008, with the election of Barack Obama, second, on February 19, 2009, with the explosion of anger by Rick Santelli, giving birth to the Tea Party, and third, on September 10, 2011 with the #Occupy movements that are now spreading across the United States.

The souls in these movements must now decide whether this third peak will have any meaningful effect — whether it will unite a radically divided America, and bring about real change, or whether it will be boxed up by a polarized media, labeled in predictable ways, and sent off to the dust bins of cultural history.

In the Civil Rights Movement, Dr. Martin Luther King, Jr., championed a strategy of non-violence: that in the face of state sponsored and tolerated aggression, the strongest response was a promise not to respond in kind.

In this movement, we need a similar strategy. Of course a commitment to non-violence. But also a commitment to non-contradiction: We need to build and define this movement not by contradicting the loudest and clearest anger on the Right, but instead, by finding the common ground in our demands for reform.

So when Ron Paul criticizes the “Wall Street bailouts,” and attacks government support for “special businesses” with special access, we should say, “that’s right, Congressman Paul.” Bailouts for the rich is not the American way.

And when Rick Santelli launches a Tea Party movement, by attacking the government’s subsidies “to the losers,” we should ask in reply, what about the subsidies “to the winners” — to the banks who engineered the dumbest form of socialism ever invented by man: socialized risk with privatized benefits. What, we should ask Mr. Santelli, about that subsidy?

Or when Republican Senator Richard Shelby tells NBC’s Meet the Press that the message in bank reform “should be, unambiguously, that nothing’s too big to fail,” we should say that’s right, Senator, and it’s about time our Congress recognized it.

Or when Sarah Palin calls GE the “poster child of crony capitalism,” we should say “Amen, Mamma Grisly”: For whether or not we are all believers in “capitalism,” we should all be opponents of “crony capitalism,” the form of capitalism that is increasingly dominating Washington, and that was partly responsible for the catastrophe on Wall Street in 2008, and hence the catastrophes throughout America since.

We should practice “non-contradiction,” not because we have no differences with the Right. We do. We on the Left, we Liberals, or as some prefer, we Progressives, have fundamental differences with people on the Right. Our vision of that “shining city on the hill” is different from theirs. Our hopes for “We, the People,” are more aspirational. More egalitarian. More ideal.

But even though our substantive views are different, we should recognize that we have not yet convinced a majority of America of at least some of our fundamental views. And that in a democracy, no faction has the right to hold a nation hostage to its extreme views, whether right or not. We should fight in the political system to win support for our Liberal views. But we should reject the idea that protest, or violence, or blackmail are legitimate political techniques for advancing views that have not yet prevailed in a democratic system.

Instead, we should use the energy and anger of this extraordinary movement to find the common ground that would justify this revolution for all Americans, and not just us. And when we find that common ground, we should scream it, and yell it, and chant it, again, and again, and again.

For there is a common ground between the anger of the Left and the anger of the Right: That common ground is a political system that does not work. A government that is not responsive, or — in the words of the Framers, the favorite source of insight for our brothers on the Right — a government that is not, as Federalist 52 puts it, “dependent upon the People alone.”

Because this government is not dependent upon “the People alone.” This government is dependent upon the Funders of campaigns. 1% of America funds almost 99% of the cost of political campaigns in America. Is it therefore any surprise that the government is responsive first to the needs of that 1%, and not to the 99%?

This government, we must chant, is corrupt. We can say that clearly and loudly from the Left. They can say that clearly and loudly from the Right. And we then must teach America that this corruption is the core problem — it is the root problem — that we as Americans must be fighting.

There could be no better place to name that root than on Wall Street, New York. For no place in America better symbolizes the sickness that is our government than Wall Street, New York. For it is there that the largest amount of campaign cash of any industry in America was collected; and it was there that that campaign cash was used to buy the policies that created “too big to fail”; and it was there that that campaign cash was used to buy the get-out-of-jail free card, which Obama and the Congress have now given to Wall Street in the form of a promise of no real regulatory change, and an assurance of “forgiveness.”

“Forgiveness” — not of the mortgages that are now underwater. The foreclosures against them continue. “Forgiveness” — not even of the sins now confessed by Wall Street bankers, for our President has instructed us, no crimes were committed. “Forgiveness” — just enough to allow candidates once again to race to Wall Street to beg for the funds they need to finance their campaigns. The dinner parties continue. The afternoons at the golf course are the same. It’s not personal. It’s just business. It is the business of government corrupted.

There is no liberal, or libertarian, or conservative who should defend these policies. There is no liberal, or libertarian, or conservative who should defend this corruption. The single problem we all should be able to agree about is a political system that has lost is moral foundation: For no American went to war to defend a democracy “dependent upon the Funders alone.” No mother sacrificed her son or daughter to the cause of a system that effectively allows the law to be sold to the highest bidder.

We are Americans, all of us, whether citizens or not. We are Americans, all of us, because we all believe in the ideal of a government responsive to “the People alone.” And we all, as Americans, regardless of the diversity of our views, need to stand on this common ground and shout as loudly as we can: End this corruption now. Get the money out of government. Or at least get the special interest money out of government. And put back in its place a government dependent upon, and responsive too, the people. Alone.

“There are a thousand hacking at the branches of evil” — Thoreau, 1846, On Walden — “There are a thousand hacking at the branches of evil to one striking at the root.”

If this fever is to have its effect, if this revolution is to have any meaning, if this struggle — and the carnival notwithstanding, it is an obvious struggle to sleep on the streets — is to have real consequence, then we all, Left and Right, must strike first at that root.

“It is the duty of youth,” they say Kurt Cobain said, “to challenge corruption.” He may have meant a different corruption, if indeed he uttered this poetry too. But whatever he meant, embrace his words. It is your duty to challenge this corruption. And once you have ended it — once we have restored a government that cares about what its people care about first, and not just its funders — then let us get back to the hard and important work of convincing our fellow citizens of the right in everything that is left.

(Original post on HuffPo)

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A Letter to the #Occup(iers): The Principle of Non-Contradiction http://www.lessig.org/2011/10/a-letter-to-the-occupiers-the-principle-of-non-contradiction-2/ http://www.lessig.org/2011/10/a-letter-to-the-occupiers-the-principle-of-non-contradiction-2/#comments Wed, 12 Oct 2011 18:03:19 +0000 http://www.lessig.org/2011/10/a-letter-to-the-occupiers-the-principle-of-non-contradiction-2/ Like a fever, revolutions come in waves. And if this is a revolution, then it broke first on November 4, 2008, with the election of Barack Obama, second, on February 19, 2009, with the explosion of anger by Rick Santelli, giving birth to the Tea Party, and third, on September 10, 2011 with the #Occupy movements that are now spreading across the United States.

The souls in these movements must now decide whether this third peak will have any meaningful effect — whether it will unite a radically divided America, and bring about real change, or whether it will be boxed up by a polarized media, labeled in predictable ways, and sent off to the dust bins of cultural history.

In the Civil Rights Movement, Dr. Martin Luther King, Jr., championed a strategy of non-violence: that in the face of state sponsored and tolerated aggression, the strongest response was a promise not to respond in kind.

In this movement, we need a similar strategy. Of course a commitment to non-violence. But also a commitment to non-contradiction: We need to build and define this movement not by contradicting the loudest and clearest anger on the Right, but instead, by finding the common ground in our demands for reform.

So when Ron Paul criticizes the “Wall Street bailouts,” and attacks government support for “special businesses” with special access, we should say, “that’s right, Congressman Paul.” Bailouts for the rich is not the American way.

And when Rick Santelli launches a Tea Party movement, by attacking the government’s subsidies “to the losers,” we should ask in reply, what about the subsidies “to the winners” — to the banks who engineered the dumbest form of socialism ever invented by man: socialized risk with privatized benefits. What, we should ask Mr. Santelli, about that subsidy?

Or when Republican Senator Richard Shelby tells NBC’s Meet the Press that the message in bank reform “should be, unambiguously, that nothing’s too big to fail,” we should say that’s right, Senator, and it’s about time our Congress recognized it.

Or when Sarah Palin calls GE the “poster child of crony capitalism,” we should say “Amen, Mamma Grisly”: For whether or not we are all believers in “capitalism,” we should all be opponents of “crony capitalism,” the form of capitalism that is increasingly dominating Washington, and that was partly responsible for the catastrophe on Wall Street in 2008, and hence the catastrophes throughout America since.

We should practice “non-contradiction,” not because we have no differences with the Right. We do. We on the Left, we Liberals, or as some prefer, we Progressives, have fundamental differences with people on the Right. Our vision of that “shining city on the hill” is different from theirs. Our hopes for “We, the People,” are more aspirational. More egalitarian. More ideal.

But even though our substantive views are different, we should recognize that we have not yet convinced a majority of America of at least some of our fundamental views. And that in a democracy, no faction has the right to hold a nation hostage to its extreme views, whether right or not. We should fight in the political system to win support for our Liberal views. But we should reject the idea that protest, or violence, or blackmail are legitimate political techniques for advancing views that have not yet prevailed in a democratic system.

Instead, we should use the energy and anger of this extraordinary movement to find the common ground that would justify this revolution for all Americans, and not just us. And when we find that common ground, we should scream it, and yell it, and chant it, again, and again, and again.

For there is a common ground between the anger of the Left and the anger of the Right: That common ground is a political system that does not work. A government that is not responsive, or — in the words of the Framers, the favorite source of insight for our brothers on the Right — a government that is not, as Federalist 52 puts it, “dependent upon the People alone.”

Because this government is not dependent upon “the People alone.” This government is dependent upon the Funders of campaigns. 1% of America funds almost 99% of the cost of political campaigns in America. Is it therefore any surprise that the government is responsive first to the needs of that 1%, and not to the 99%?

This government, we must chant, is corrupt. We can say that clearly and loudly from the Left. They can say that clearly and loudly from the Right. And we then must teach America that this corruption is the core problem — it is the root problem — that we as Americans must be fighting.

There could be no better place to name that root than on Wall Street, New York. For no place in America better symbolizes the sickness that is our government than Wall Street, New York. For it is there that the largest amount of campaign cash of any industry in America was collected; and it was there that that campaign cash was used to buy the policies that created “too big to fail”; and it was there that that campaign cash was used to buy the get-out-of-jail free card, which Obama and the Congress have now given to Wall Street in the form of a promise of no real regulatory change, and an assurance of “forgiveness.”

“Forgiveness” — not of the mortgages that are now underwater. The foreclosures against them continue. “Forgiveness” — not even of the sins now confessed by Wall Street bankers, for our President has instructed us, no crimes were committed. “Forgiveness” — just enough to allow candidates once again to race to Wall Street to beg for the funds they need to finance their campaigns. The dinner parties continue. The afternoons at the golf course are the same. It’s not personal. It’s just business. It is the business of government corrupted.

There is no liberal, or libertarian, or conservative who should defend these policies. There is no liberal, or libertarian, or conservative who should defend this corruption. The single problem we all should be able to agree about is a political system that has lost is moral foundation: For no American went to war to defend a democracy “dependent upon the Funders alone.” No mother sacrificed her son or daughter to the cause of a system that effectively allows the law to be sold to the highest bidder.

We are Americans, all of us, whether citizens or not. We are Americans, all of us, because we all believe in the ideal of a government responsive to “the People alone.” And we all, as Americans, regardless of the diversity of our views, need to stand on this common ground and shout as loudly as we can: End this corruption now. Get the money out of government. Or at least get the special interest money out of government. And put back in its place a government dependent upon, and responsive too, the people. Alone.

“There are a thousand hacking at the branches of evil” — Thoreau, 1846, On Walden — “There are a thousand hacking at the branches of evil to one striking at the root.”

If this fever is to have its effect, if this revolution is to have any meaning, if this struggle — and the carnival notwithstanding, it is an obvious struggle to sleep on the streets — is to have real consequence, then we all, Left and Right, must strike first at that root.

“It is the duty of youth,” they say Kurt Cobain said, “to challenge corruption.” He may have meant a different corruption, if indeed he uttered this poetry too. But whatever he meant, embrace his words. It is your duty to challenge this corruption. And once you have ended it — once we have restored a government that cares about what its people care about first, and not just its funders — then let us get back to the hard and important work of convincing our fellow citizens of the right in everything that is left.

(Original post on HuffPo)

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