Lessig » regular 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 “Lord, let my work matter enough that its critics at least know what I say…” http://www.lessig.org/2012/06/24608014966/ http://www.lessig.org/2012/06/24608014966/#comments Thu, 07 Jun 2012 13:49:52 +0000 http://lessig.tumblr.com/post/24608014966 The Great Bob Kohn — Kohn on Music Licensing, eMusic, and now RoyaltyShare — felt it important to launch a twitter-snit against me, after I tweeted that I was going to deliver the commencement address at my high school (33 years after missing my own graduation). Here is the exchange: 

Great, Larry. Let them know why you hate the 1st Amendment: “@lessig: Friday I get to go back and give the commencement address.”
6/6/12 8:51 PM

@bobkohn you first.
6/6/12 9:56 PM

You’re way ahead of me Larry. Jefferson would be appalled at what you are doing. Why have you sold out? “@lessig: @bobkohn you first.”
6/6/12 10:37 PM

@bobkohn bob, what are you talking about?
6/6/12 10:49 PM

Your support of government censorship of political speech. “@lessig: @bobkohn bob, what are you talking about?”
6/6/12 10:56 PM

Rootstrikers @lessig : “Decl. of Indep. was speaking of natural persons only.” So, The NY Times, a corporation, has no 1st Amendment Rights?
6/7/12 2:49 AM

Before I offer my own reply to this, here’s what @jsalsman tweeted: 

@bobkohn Jefferson would have never allowed money to shout out political opposition. You shouldn’t either: http://t.co/lKZOAYBl cc @lessig
6/7/12 2:38 AM

@bobkohn for proof from Thomas Jefferson’s writing, see “unless the mass retains sufficient…for the trust” at http://t.co/oCre4mZF @lessig
6/7/12 2:46 AM

Which is great enough, but doesn’t respond to Kohn’s charge about me “selling out.”

  1. First, can we reserve the charge “selling out” to a context in which it is meaningful? To whom would I have been “selling out,” Bob? All the economic interests in the world are on the “corporations = people” and “money = speech” side. If you’re attacking me for not taking that side, you’re not attacking me for “selling out.”
  2. Whether or not “persons” refers to “natural persons only,” in my view, entities get First Amendment rights. That’s because I believe — with Scalia — that the First Amendment states not a privilege given to “persons” but a limit on the scope of “Congress’s” power. That means citizens, persons, foreigners, and dolphins all have First Amendment protection. Of course, to its great embarrassment, after Citizens United, the Court refused to reconsider its position on whether legal immigrants have a right to speak politically. (Justice Stevens made this point recently. I don’t know where Scalia was on that case, but he didn’t dissent from denial.)
  3. I have directly and explicitly argued — after some struggling with the matter for a while — that I am not in the “corporations≠persons,” and “money≠speech” camp. I made that argument at a League of Women Voters event in Concord last month. I was making it precisely at the time that Kohn launched his snit last night. Here’s a five minute response to a question about “money=speech”: audio.
  4. Finally, and most importantly, even if I did believe that “corporations≠persons” and that therefore they didn’t get the benefit of First Amendment protection (again, which I don’t), can we leave the trash talk to cable TV, Bob? it is absurd to characterize that position as support for “government censorship of political speech.” Or it is as absurd as saying that people who support copyright support “government censorship of political speech.” I have enormous respect for the people who are trying to respond to the corruption of this democracy by pushing for constitutional change. Even if I disagree with the particulars of their amendment, it is red-baiting to say that they support government censorship. Let’s leave the red-baiting to those who get paid to utter such silliness.  
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Commencement Address to Atlanta’s John Marshall Law School http://www.lessig.org/2012/05/24065401182/ http://www.lessig.org/2012/05/24065401182/#comments Wed, 30 May 2012 15:34:00 +0000 http://lessig.tumblr.com/post/24065401182 I was asked to post the text to the Commencement Address I gave at Atlanta’s John Marshall Law School on May 19. With some hesitation (as tongue-in-cheek gets lost in writing), and with one important clarification (the corruption alleged was mine!), I post it here. 

I am a professor of law at Harvard. I run the university’s Edmond J. Safra Center for Ethics. At that Center for Ethics, we study corruption. Not Rod Blagojevich, or Randy Duke Cunningham corruption — not “criminals violating the law” sort of corruption. Instead, corruption as in improper influence.

Think about a doctor taking money from a drug company, and then sitting on a panel that reviews that company’s drugs: Not illegal; if disclosed, not unethical, but nonetheless, an influence that leads many to wonder whether it is truth, or money, that led the doctor to approve the drugs.

Or think about an academic taking money from a telecom company, and then giving testimony before Congress that just so happens to serve the interest of that telecom. Nothing illegal about taking that money; if disclosed, nothing unethical about taking that money. But  an influence that leads many to wonder whether it was the truth, or money, that led the academic to speak in favor of that company.

Or think about just about every Member of the United States Congress: taking money from the interests they regulate — Wall Street banks, coal companies, insurance companies, big Pharma — and then regulating in a way that makes life great for them, while making life for the rest of us not quite as great. Nothing illegal about taking that money; if disclosed, nothing unethical. But an influence that leads many to wonder whether it is truth or justice that leads Congress to care about them. Or whether it is just the money.

Now I tell you this about me because I want to establish my own expertise about corruption, so that I have the authority to say this:

My being here today, as your graduation speaker, is totally corrupt. There are plenty of brilliant and successful souls who would have loved the honor of addressing this graduating class of lawyers. But I’m here because I begged. And I begged because my nephew is one among you. And the love and pride that I feel for him led me to do something that I have literally never done before — ask to speak some place — and that in turn led your law school to do something no law school has ever done before — granted me an honorary degree and allowed me to speak to a graduating class. This is all deeply corrupt; I am expert and I can prove it: It wasn’t reason that led me here; it was love. And while that’s perhaps a more pedestrian, forgivable, sort of corruption, the question it now begs is whether I can dig myself out of this deep and corrupt hole, to make something useful, maybe even virtuous, from this corruption.

That’s something many of you know something about — deep holes that you need to dig yourself out of. I tried to find the tuition of Atlanta’s John Marshall Law School on its web page but I could only find the cost per credit hour — $1,128 — and because I’m a lawyer, there’s no chance I would know how to multiply $1,128 by the number of credit hours you all need to graduate, but I take it it’s big. And I take it as well that most of you have had to finance that big number with even bigger loans. Which, when they’re paid off with their even bigger interest rates, will be a really really big number. Way beyond the capacity of a mere lawyer to calculate, but I’m sure some of you know  waitresses who could calculate it just fine.

Suffice it that you leave this place with a great deal that you owe others, yet with a degree in a profession that too many have much too little respect for.

Indeed — let’s be frank — a degree in a profession that many think is itself just corrupt. That just like the doctors, or the academics, or the Members of Congress that I spoke of at the start, a profession that many believe has lost its true north. That cares too little about the justice it was meant to serve, and too much about the wealth it increasingly defends.

Many of my students feel this corruption every day of their working life. They came to law school to do justice. They left law school to work in Inc. law — “inc.” as in “incorporated” as in the law for corporations. No doubt that is an honorable and important part of our profession, but for many of them, this isn’t the law they imagined when they came to law school. They go through their whole career never meeting a client who is a real person, only clients who are representatives of the persons we call corporations. And while there are many who are convinced that corporations are persons, as I once saw on a sign at a protest, I’ll believe corporations are persons when Texas executes one.

My point is not to criticize “Inc. Law.” “Inc. Law” helps create wealth, it helps protect wealth. It gives great innovators a chance to bring their innovations to market.

Instead my point is to emphasize the importance of the other part of law. Not the “Inc.” part, but the people part. The person part. Or the real person part. The part that touches real people. With real problems.

The part that keeps a family in their home against an unjust demand for eviction. Or that enforces a simple contract with a bank, to supply the credit for a coffee shop. Or that protects a woman against her abusive husband. Or that forces an insurance company to pay on a claim they rightly owe. Or that defends a child in a foster home against the neglect of a distracted state.

This too is law. The law of Erin Brockovich, not the law of Cravath Swaine and Moore.

But here’s the thing about this law:

No one thinks it works well.

There are plenty of lawyers in “Inc. Law” who go home at the end of the day and feel that that system works. Their clients got the process they were due. Their arguments were heard. Their interests were fairly considered. If through litigation, litigation in a federal court: With great judges. Beautiful carpet. Clean bathrooms. If through a transaction, a deal cut in conference rooms at the Four Seasons. No doubt these lawyers work hard. Insanely hard. And the system rewards them with the sense that the system works.

Not so with the law of real people. There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. In contracts, you read about disputes involving tens, maybe a hundred dollars. The disputes of ordinary people. These disputes are not for the courts any more. Or if they are, they are for courts that are an embarrassment to the ideals of justice from our tradition.

The law of real people doesn’t work, even if the law of corporations does.

Now if I were to don my reformers cap, and turn to the question that I spend most of my time now addressing — the corruption of our democracy by the corrupting influence of money — I’d say, and who is surprised by this? In a world where .26% of Americans give more than $200 in a congressional election; .05% max out; .01% give more than $10,000; or .000063% — 196 Americans — give more than 80% of the superPAC money spent so far in this election, who could be surprised that it is the law for the rich that works, and the law for the rest of America that doesn’t.

This corruption we lawyers are responsible for. And we lawyers will only earn back the respect of the people when we show the people that the law serves the people well. That it serves them quickly. That it serves them efficiently. That it serves them justly.

John Marshall — whose name this law school borrows — was not among the framers of our constitution. But among those framers, there were businessmen, farmers, scientists, physicians and some lawyers.

No one could doubt the progress that business has made in the 225 years since our constitution was drafted. That progress is extraordinary.

Likewise, the drafters would certainly be in awe of the progress in farming too. Lack of food isn’t America’s problem. Too much food is.

Ben Franklin, the most famous american scientist, and most beloved of the founders, couldn’t even conceive of an iPhone, let alone a hand-held calculator.

And Dr. James McHenry, who studied with the framing generation’s most famous doctor, Dr. Benjamin Rush, still believed that bloodletting was the best way to deal with most illness.

In all of those fields, we as a people have made enormous progress.

Yet the story of the law is more ambiguous.

We today can pronounce the word “equality.” Our framers stumbled over that idea. And we today can be proud of the range of citizens that we count as equal as compared with those they plainly  and wrongly excluded.

But if you think about the law day to day, the law as it affects ordinary people, it was clear the law then was aimed at a more pedestrian crowd. At ordinary citizens and ordinary problems. And it was clear the greatest lawyers worked first on the law aimed at that pedestrian crowd. The law aimed at ordinary citizens and ordinary problems.

But since that time, since the founding, we have seen little progress in this aspect of the law. Indeed, we’ve seen an accelerating retreat.

We can cure cancer today. We could, if we chose, feed every human on the planet, three times over.

But we can’t give an ordinary citizen a easy and efficient way to protect her rights.

Courts are less open today than they were back then to the small claims — small in the scale of things, but not in their importance to those who bring them. Courts are less relevant to most Americans. The law has convinced most Americans that the law is for the rich, except that part of the law that involves the prisons.

We, all of us, have a duty to fix this. To repair this. To make it better. We lawyers in particular have that duty. And we make it better by practicing it better. By practicing the law of real people, and through that practice, making that law better.

When my nephew told me he wanted to give up his career in journalism, and his career as a race car driver, to become a lawyer, I was skeptical. I got the journalism part. But give up being a race car driver?

I was skeptical because I’m not convinced we know any more how to do this law stuff well. How to do it in a way that should make us proud, and gives others a reason to be proud of us.

But as I watched him grow through his years at this law school, I recognized that my skepticism was wrong. Never more than the day when he told me that he was thinking of simply hanging up a shingle after he left Atlanta’s John Marshall Law School, and practicing the law of real people.

Because he is brilliant, and generous, and playful and smart: And he will have a life that almost none of my students have: every day, he will meet the people he is trying to help. And some days, he will feel that he has helped them. He has the talent to make “People Law” better. This law school has given him the right and the will to make “People Law” better.

And so I begged to celebrate this day with him, and therefore with you, because I wanted him, and you, to hear this one thought:

When you practice this law of real people, when you experience the way the law fails real people, when you see that the only medicine that you have to prescribe — bloodletting — helps no one except the vampires, recognize this:

There is no one who could justify the system we’ve allowed to evolve. There is no one who could defend its failures.

But the men — and ok, only men, and only white men, and mainly white men with property — who gave us our nation also gave us a promise of something more than this.

And so when you experience this law of real people, you should feel entitled to demand that it work better. However bad it is, you should be proud of your work. But remain proud only if you do something to push it to become as great as our proud tradition promised it would be.

When LBJ took up the cause of civil rights, he was told by his advisors he couldn’t. That he would lose, and doom his presidency. “What the hell is being a president for,” he replied and then passed the civil rights act of 1964.

Well I say, what the hell is being a lawyer for?

You are as great as your proud parents hoped you would be. That’s what they feel today, as they watch you today accept this degree.

They stand with you today. Those who watched you grow up, and now celebrate the promise of your life. But as you begin as a lawyer, as you begin to dig yourself out of the financial hole that you are in, as you enter a field too many think is just corrupt, don’t think just about them, and the pride they can’t hide today.

Think also about those who forty years from now will look up to you, and ask you: what did you do then? Think of your kids, and their family. Think of the work they will see. Think of the reward they will recognize.

For like you, they won’t respect you for your money only. Or your fame. Or your incredible good looks.

They will love you no doubt regardless. But they will only respect you for what you did. For who you became. For how you left the world. For how you made the law, “People Law,” better.

Leave it better, lawyers, than we lawyers have given it to you. Than we, the lawyers who have educated you, have given it to you. Leave it in a place that your mother, and your daughter, your father, and your son, could respect.

Not corrupt, but true.

Not just rich, but just.

For what the hell is being a lawyer for?

Congratulations to Atlanta’s John Marshall Law School class of 2012. Congratulations to you, and to everyone who got you here.


* thanks to Luis E. Ventura for helpful corrections.

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Americans Elect and “neutrality” http://www.lessig.org/2012/05/23239581988/ http://www.lessig.org/2012/05/23239581988/#comments Thu, 17 May 2012 18:59:00 +0000 http://lessig.tumblr.com/post/23239581988 John Lumea has a piece criticizing Americans Elect and me about “neutrality.” I don’t agree with the criticism, nor with the genre of criticism it represents. (And this is really bad form but this has to be a hit and run response, because I’ve got 5 presentations in the next 3 days and am turning my internet connection off).

First the good news:

What’s refreshing and valuable in John’s criticism is the form and manner. Most seem to write as if they were feeding a snark meter. John’s is an honest and direct effort to engage an idea. I’m exhausted by the snark. I have enormous respect for the straight-forward engagement. Thanks for that.

Second: The substance, part 1. 

Americans Elect has a neutrality policy: The org will not — indeed, given the structure of the organization as approved by the DC Circuit, cannot — endorse a candidate prior to the rules being run and a candidate being selected. 

AE has a board, and a staff. 

AE also has an advisory board. 

I’m on the advisory board. I don’t know about others, but I was asked to join the advisory board after I had indicated some support and some criticism. When I was asked to join the advisory board, I was told it would not interfere with my ability to support any particular candidate — whether an AE candidate or not. To encourage this innovation, I agreed. 

As a member of the advisory board, I have asked questions, criticized certain decisions, channeled the criticism of others, and participated in calls. I have also argued in public a number of times that AE might be a useful path to selecting a reform candidate. In particular I have mentioned Roemer and Walker. Both seem to me to be plausible candidates to challenge the conspiracy of silence around the money in politics in this election. 

John criticizes my serving on the advisory board because he believes my advocacy is inconsistent with the principle of “neutrality.” He believes, moreover, that the distinction between an “advisory board” and “board and staff” is “Clintonian” — that the difference is “hair splitting” and not real. 

But the difference is real and common and completely the same with every other major party. Advisory board members are just that: They offer advice. They have no power. They have no rights. They can’t steer the org in one way or the other (beyond the effect of whatever argument they make, and that effect would happen whether or not they were members of the advisory board.) Certainly, to serve on an advisory board is to offer some level of endorsement — though as John notes, my endorsement is limited, as I don’t support the idea of AE because of its aspiration for a centrist candidate. I support the idea because it is a possible path to reform. 

John concedes there are these differences, but says the standard isn’t the reality of the difference, but the “public perception.” But here he seems to be making a move/mistake that others are making about AE as well: Compared to the other political parties, is there any difference here? The Democrats and the Republicans both, when there is no presumptive nominee (i.e., an incumbent) run party primaries. During those primaries, the entity running the primary is to remain neutral. But that entity has advisory boards. Does anyone doubt the freedom of members of those boards to indicate a preference for a particular candidate, even if the people running the primaries shouldn’t? 

The same point can be made about the criticisms of the “anonymous” loans to AE. I’ve criticized this anonymity too. But again, the important question is to compare AE (and its candidate, were it to have produced one) to the Democrats and the Republicans. Is either party able to say that is not supported by any anonymous money? Of course not: Both with have anonymous superPAC contributions pushing their candidate. The GOP had them for primary candidates. Had the Democrats had a primary, they would have had them for the Dems as well. I’ve argued that AE’s form of anonymity is less troubling that these examples — since it is to support a platform, not a candidate — but even so, the criticism loses its force once it is put in context. 

In both cases, my point is the same: We’ve got to avoid the Ceaser’s-wife syndrom: If a new institution comes along promising a change from a plainly broken existing institution, the test should not be whether it is perfect. The test is whether it is better than the alternatives — because otherwise, you bias in favor of the (plainly broken) status quo.

I should think, even counting “perception,” AE looks more “neutral” than the Republicans. And it is certainly afflicted with less tainted cash than the alternatives. 

Third: substance part 2

After criticizing’s neutrality, John goes on to make the claim that

A major reason why Americans Elect [cancelled its primary ballots] is this: Americans Elect is not seen as a neutral broker.

That’s a pretty strong empirical claim. I wonder what’s empirical foundation is?  But then he doubles down: 

Had Americans Elect instead created an unambiguous and airtight “public neutrality” plank … [it] would not be where it finds itself today. Of this I am sure.

I guess I’d to know how one can be so sure. There are lots of things that weighed in the decision whether to participate in AE or not — from the fear of supporting a spoiler, to the difficulty in verifying voter identity. The former is inherent. The latter is unnecessarily difficult. And while I’m sure the AE team will be testing exactly what was the most significant in explaining the relatively low level of participation, I’d be surprised if the data confirmed John’s assertion. 

Or again, to link point 1 and point 2: When the governor of a state endorses a candidate during a primary, John, do you think that leads voters in the state not to vote because they “believe that they have been ‘pre-subjugated’ to the will of insiders with money, power and media access”? And if not, why would you think that with a member of an advisory board, with no access to the mechanics of the voting system, no authority over the organization, and no “media access” worth nails beyond a simple twitter feed?

Thanks again for the engagement. And apologies again that I am going to run away now to work. 

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Why doesn’t T-Mobile work at ORD? http://www.lessig.org/2012/05/22711392741/ http://www.lessig.org/2012/05/22711392741/#comments Wed, 09 May 2012 11:35:55 +0000 http://lessig.tumblr.com/post/22711392741 So useless customer support forces me to this public place to ask this not-quite-public question: Why doesn’t T-Mobile work at ORD? 

<BEGIN quasi-geeky-tech-question>

Since upgrading to OS X 10.7.3, logging onto wifi networks has been much more difficult. At ORD, at least in the United Club, it is impossible using the T-Mobile network. Whenever I connect to the tmobile network, it opens the new (supposedly-quasi-automatic) wifi login screen. But it gets stuck there forever, with an indication that it is trying to connect to an apple URL. Why? Is there away around this? 

Here’s a screens shot: 



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Republic, Lost: Errors, small? http://www.lessig.org/2012/05/22251208756/ http://www.lessig.org/2012/05/22251208756/#comments Wed, 02 May 2012 11:42:12 +0000 http://lessig.tumblr.com/post/22251208756 Republic, Lost is going into paperback this fall. I’ve been grateful to all who have sent corrections. I’d be grateful for other errors flagged below. Unfortunately this can’t be a rewrite, so even if I should chuck it all and start again, not really possible. Thanks in advance.

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SopaTrack: thoughts http://www.lessig.org/2012/04/21337276067/ http://www.lessig.org/2012/04/21337276067/#comments Wed, 18 Apr 2012 20:04:53 +0000 http://lessig.tumblr.com/post/21337276067 Every so often, a beautifully clear and crystalizing innovation happens. Sopatrack feels like one of these. Is it right? Is it true? Is it fair? Those are three distinct questions. I’d be grateful for thoughts about the site. 

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worth it http://www.lessig.org/2012/04/21005748953/ http://www.lessig.org/2012/04/21005748953/#comments Fri, 13 Apr 2012 03:16:26 +0000 http://lessig.tumblr.com/post/21005748953 There are moments when 

all this seems worth it. 


Fewer the fewer days I get with my kids.

But some. 

Today was one. 

A guy in a military cap,

out of place in an auditorium

of law students and faculty,

had heard me on an interview

before the talk, here in 


And came. Convinced,

as he said, 

that no one got it.

But now, 

as he said,

that some do.

There is a potential here. 

Especially here. 

Way out here.

At least.

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On the absurd pandering in the Anti-Hilary-Rosen Campaign http://www.lessig.org/2012/04/20971088192/ http://www.lessig.org/2012/04/20971088192/#comments Thu, 12 Apr 2012 17:27:35 +0000 http://lessig.tumblr.com/post/20971088192 Here’s what we know:

  1. Our society has not yet achieved sex equality. 
  2. Women suffer that inequality differently. 


In an unscripted television talk show appearance, Hilary Rosen referred to that differently-experienced inequality. She said that Ann Romney has “never worked a day in her life.” 

Ann Romney, of course, has worked plenty of days in her life — as a mother raising five children. As a father who watches in wonder as my wife works to raise just three children, I have endless respect for anyone who can do what she, or Ann Romney does. 

But it is absolutely obvious that Hilary Rosen was not saying that Ann Romney didn’t work in that sense. What she meant was that Ann Romney did not work in the sense that Hilary Rosen has, and millions of other women have — that while raising children, she has also spent at least 40 hours in a work place, away from home.

And even if Ann Romney had, she wouldn’t have done that the way the vast majority of women who do that have to do that — without permanent childcare, without someone who can always come to get a sick kid at school, without help to clean the house, without staff to cook dinner.

What Hilary Rosen was saying was that it is difficult — to say the least — for someone in the cradle of privilege to say that they know anything about people who live like most Americans: without privilege, without guaranteed support, constantly against an unforgiving edge which, if Obamacare is overturned, will only get sharper.

Yet immediately after Rosen made her completely true comments, her friends openly gather to ostracize her. Her true comments were “offensive” says Axelrod. Jim Messina “couldn’t disagree more.”

Really? Not even if you try really really hard, Jim?

It might be right that family should be off limits. But no one was talking about particular kids, etc. The comment was about a candidate’s spouse’s ability to judge, given she had claimed the right to judge.

The comment was totally fair, and right, in my view.  

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So what exactly is this internet scam about? http://www.lessig.org/2012/04/20465101274/ http://www.lessig.org/2012/04/20465101274/#comments Wed, 04 Apr 2012 13:25:22 +0000 http://lessig.tumblr.com/post/20465101274 Can someone help me understand what this is about? 

I joined a forum in order to respond to a comment. Immediately after I joined, I began to receive literally hundreds of emails from other fora I hadn’t joined, each sending me my joining credentials for that forum. 

What benefit does anyone get from this? 

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The Economist Weighs In http://www.lessig.org/2012/03/19188135593/ http://www.lessig.org/2012/03/19188135593/#comments Mon, 12 Mar 2012 18:41:57 +0000 http://lessig.tumblr.com/post/19188135593 Anonymous at the Economist (because everyone at the Economist is anonymous) has weighed into the debate between Ezra and me with an important question, and an incomplete answer.

They [allow me this grammatical mistake so I don’t have to say “he or she”] rightly read me to argue that there may be a link between gerrymandered districts, polarization and fundraising. 

And then they rightly raise an important question: “Isn’t gerrymandering the really serious problem here?” (Since it is gerrymandering that creates the safe seats which makes it less costly for candidates to appeal to the extremes.) As they go on: 

this logically has nothing to do with money. If we left the definition of congressional districts to an algorithm expressly designed to minimise the “safeness” of seats, the fund-raising advantages of “extreme” positioning would decline, elections would produce more moderate representatives, and partisan polarisation would decline, regardless of the campaign-finance scheme. That suggests “the current system for funding campaigns” isn’t the crucial variable.

And then they end with the critical sentence that I wanted to flag: 

If the need to raise many small donations nevertheless continued to “exacerbate polarization” by exerting pressure to raise funds through relatively purist partisan rhetoric, couldn’t we lift that pressure by raising the cap on donations?

It is true that if my hypothesis is right, ending gerrymandering would increase the cost of polarizing fundraising. That’s not enough to say it would end it. It just would not be as easy. 

But the last sentence quoted above is why I am insistent that the problem with Congress is not just (and not first) the problem of polarization. Because while one might well “lift the pressure” to “raise funds through relatively purist partisan rhetoric” by “raising the cap on donations,” one wouldn’t address the more fundamental problem with the current system: That the tiniest slice of the 1% is funding the elections. 

Two bits of recent data make this point quite clearly, and more dramatically, than I did in my book.

The first is the conjunction of Rick Hasen’s recent piece in Slate, measuring the rise in independent expenditures in this election cycle (“What is the total for this election season through March 8? More than $88 million, a 234 percent increase over 2008 and a 628 percent increase over 2004.”) with the Ari Berman’s piece in the Nation analyzing who those funders are (196 individuals account for 80% of that spending). (And for good measure, see also the Sunlight Foundations great piece, The One Percent of the One Percent.)

The second is some data calculated by a fellow at the EJ Safra Center, Paul Jorgensen. Using zipcode maps and a much cleaner dataset of contributors, Paul is able to calculate the per capita contribution of the top 1% versus the per capita contribution of the 99%. Here’s what it looks like for 1990, 2000, and 2008.

The problem with American democracy remains, in my view, that

  1. Congress is dependent upon its funders AND
  2. “The Funders” are not “The People.” 

If the Economist got its way, problem (2) would only be worse: the funders would be even less “the People.” And I remain convinced that one of the reasons we can’t get to Ezra’s solution to the polarization mess is problem (1): Congress is dependent upon its funders. 

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A no-lobbying pledge http://www.lessig.org/2012/03/19007134231/ http://www.lessig.org/2012/03/19007134231/#comments Fri, 09 Mar 2012 17:22:48 +0000 http://lessig.tumblr.com/post/19007134231 <BEGIN Research Request>

Is there any useful precedent for a “No lobbying pledge”? There are a number of people who have been fishing around for the most effective way to do this, and some candidates for Congress who have begun to articulate the idea (e.g., Bill Shein running in the 1st District of MA), but have others before done this or tried to do this or tried to do it in an enforceable way?


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Responding to Rick’s Response http://www.lessig.org/2012/03/18964244848/ http://www.lessig.org/2012/03/18964244848/#comments Thu, 08 Mar 2012 21:48:05 +0000 http://lessig.tumblr.com/post/18964244848 Rick Hasen responded to my response to his question. I return the favor here. 

Once again, and nicely summarized by him, I don’t like the non-transparency of AE. I have criticized it and I agree it should be criticized. But my point is about the kind of harm we should expect the non-transparency to produce. Or not produce, as I believe.

Rick has usefully identified some harms that I didn’t describe. I’ll discuss those below, but none strike me as fatal. He has also identified harms that I don’t believe are harms. But to see why, we have to be clear about what we’re describing here. 

AE is a platform. It will give one candidate a chance to get on 50 ballots, and challenge the Democratic and Republican nominee.

What will that candidate owe AE? Gratitude, no doubt. But is there anything in that gratitude that should lead anyone to worry that the candidate will bend one way or the other because of these secret funders

How could it? If the candidates don’t even know who the funders are (and I can attest with certainty that Roemer (who also is critical of the nontransparency) doesn’t), how is the position of the funder supposed to affect the candidate and his or her positions? 

Well, Rick suggests, maybe its through the selection mechanism. Maybe they’ll rig the ballot, or muck about with the votes. 

But that is a separate point from the question about the transparency of the funders. I completely agree that there has to be absolute confidence about the process for the AE candidate to have any credibility. If anyone could even wonder whether the ballot has been rigged (because of course, in real world elections, we never have to worry about such things), that’s a very good reason to be skeptical of whoever the candidate is.

So of course, the integrity of the voting process is a critically important issue, and I remain open to being convinced that AE hasn’t done enough to earn the public’s confidence about that.

But distinct from that question, I am still left wondering: how could the secret funders corrupt anything? Or more precisely, how could the secrecy of the funders corrupt anything? 

I reject Rick’s suggestion that this is anything like transparency in a ballot measure. Of course, knowing who funded which side of a ballot measure is a good indicator of what the ballot measure means. And I don’t doubt the big funders of AE have a desire about how their experiment will change the nature of American democracy (though I believe that is less about a particular substantive agenda and more about a frustration with these two parties). But assuming again no one can muck about with the count, what they’re funding is a platform on which Ron Paul or Ralph Nader or Buddy Roemer or Jimmy Wales all get to compete. And the question, still, in my view, not answered, is how   secret donors are going to steer this wide platform of potential competitors one way or the other (again, especially if they’re secret!).

Rick’s right to say that there are lots of ways the levers might be manipulated. (And he should know: He’s got a fantastic book coming out called The Voting Wars, which recounts lots of examples of levers being manipulated, though none involving AE).  But, again, that could happen whether or not the funders were known. And if that does happen (or if there is not enough reason to be confident that it hasn’t happened), that’s the reason to be skeptical or critical or nonsupportive of the AE candidate. Not because of a mysterious bias that comes from people the candidate doesn’t even know. 

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On the Anonymous Donors to Americans Elect http://www.lessig.org/2012/03/18951520350/ http://www.lessig.org/2012/03/18951520350/#comments Thu, 08 Mar 2012 16:39:37 +0000 http://lessig.tumblr.com/post/18951520350 The great Rick Hasen tweets: 

Hey @Lessig, do you still support #AmericansElect given their transparency problem? t.co/cK2bt78E t.co/INgztOmh

I’ve spun through stages in my thinking about Americans Elect. As I describe in One Way Forward, at first I was not a supporter, because I didn’t (and don’t) believe that the problem with American politics is that we don’t have one more flavor to select on the spectrum between the Republican candidate for President and the Democratic candidate for President.

I’ve come around to support Americans Elect now, but only because I believe it could be a platform for a real reform candidate. If it doesn’t produce such a candidate, I won’t support supporting the candidate it produces.

But in this spin, I have never been too worked up about “their transparency problem.”

Here’s why:

First (and obviously) it would be much better if the donors to AE were known. The presumption for transparency is a strong one. I am a critic of AE to the extent it allows anonymous donations to support it. 

But second (and this should be obvious too), the concern about anonymity here is different than the ordinary concern about anonymity in elections. 

When we hear that an anonymous contributor has given $10 million to a superPac supporting a particular candidate, we are and should be concerned about that contribution. But that’s because of two distinct, and independent reasons: 

  1. We assume that even though we don’t know who the contributor is, the candidate will, AND
  2. We assume that the contributor’s contribution will lead the candidate to be responsive in ways that we won’t understand. 

If those two conditions are not met, however, our concern about anonymity should be different, and, in my view, much less significant.

For example, think about condition (1): Bruce Ackerman and Ian Ayres have shown us that if we could be absolutely confident that the candidate couldn’t know who the contributors were, there’d be little reason to worry about anonymous contributions. What could the contributor be getting if the candidate couldn’t know who the contributor was? (There’d be a much bigger reason to worry about whether anyone would contribute anything at all, as an experiment in Florida with anonymous contributions to support judicial elections showed: no one contributed).

The same is true about condition (2): If there is no plausible way in which the contributions would affect the work or the positions of the candidate, the cost of anonymity is different. 

This second point is why I don’t think #AmericansElect has a “transparency problem.” I can’t begin to imagine how the identity of the contributors could possibly matter to the positions that any candidate would take on any of the issues. AE is building a platform to select candidates. They are promising a process to get access to the ballot in all fifty states. Whether a candidate is selected to be on that ballot depends upon his or her winning in the primary/caucus process. A candidate’s alignment with or against the substantive issues of one of the anonymous contributors isn’t going to affect that candidate’s ability to get nominated by AE at all.

So then what is the threat? The candidate hasn’t been obliged to do anything because of the anonymous contribution that helped build the platform. The only substantive commitment the AE candidate must make is to have a running mate from a different party. How then is the secret money having any secret effect? 

I’m very keen to focus on the subtle ways in which money affects results. That’s the whole point of Republic, Lost. But I can’t see how this money would affect any substantive result. All this secret money does is give people a chance to get on a national ballot. And which person is on that ballot is unrelated to who gave what money. 

So again, while I would prefer it if the donors were all known (because, for example, it would make this sort of distraction unnecessary), I don’t see what harm it causes or could cause.

And I’d be eager for Hasen or someone else to point to it. In what way might the anonymous donations distort anything in the substantive positions of the AE candidate? Because I completely get (even if the Court does not) how “independent expenditures” by superPACs could and do distort the substantive positions of the GOP and Democratic candidates. 

Finally, I do see the benefit in permitting this kind of anonymity. As AE becomes more and more relevant, there will be an increasing clamor from both parties to delegitimize it. Partisans get very angry when you question the two party system. I’m sure there are many who loaned AE the money it needed to get going (and technically, these are loans) who thought it wouldn’t be worth it if their loan were to also earn them the anger it will certainly produce. Some were brave enough to withstand the anger — e.g., Peter Ackerman, the founder; Governor Christy Todd Whitman (R-NJ), a board member. But we should not expect that everyone who wants change also wants to suffer the personal attack this particular form of change will earn them. 

Bottom line: No doubt it would be better if it all were transparent. But what’s the theory about how this kind of anonymity will distort any AE candidate in any particular direction? 

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Ezra’s review http://www.lessig.org/2012/03/18805061495/ http://www.lessig.org/2012/03/18805061495/#comments Mon, 05 Mar 2012 21:06:23 +0000 http://lessig.tumblr.com/post/18805061495 I was very happy to see a review in the New York Review of Books of Republic, Lost. (My first in that publication, ever!). Ezra Klein of the Washington Post does a nice job in surfacing a critical part of the argument in the book — what I call the gift economy of lobbying, as opposed to the transaction or cash economy that people often imagine such corruption would be. My book, as he puts it, “is the story of how lobbying has managed to undermine a nation.” A nice pull quote from a beautifully written essay. 

But there is also something surprisingly incomplete and frustratingly incorrect about the review that I wanted to flag here — if only because people have grabbed onto both to declare “see, money isn’t the problem in DC.” Technically, Ezra isn’t saying that, and if he were, he’d have no basis to say it. 

First, the “frustratingly incorrect” bit: 

Late in the review, Ezra writes: 

Lessig’s strongest argument in favor of this claim is that money poisons the citizenry’s trust in government, and thus its interest in participating in government: 

“When democracy seems a charade, we lose faith in its process. That doesn’t matter to some of us—we will vote and participate regardless. But to more rational souls, the charade is a signal: spend your time elsewhere, because this game is not for real. Participation thus declines, especially among the sensible middle. Policy gets driven by the extremists at both ends.”

There are two separate points being made here. One is that the rise of money is behind the decline in trust in government. The other is that money empowers ideologues and alienates the middle. Neither claim stands up to scrutiny.

Notice the sentence that is bolded. Nothing in my book is trying to make the (hopelessly complicated) empirical claim that historically, the presence or absence money explains the variance in trust in government, or that the rise in money explains the decline in trust. “Trust” has a million components. It would take a superstar econometrician to untangle those elements. Nothing in what I’ve written tries to undertake that impossibly difficult historical inquiry. 

To see why, imagine the following. Imagine in the 1960s, Americans were trusting of Congress. That trust notwithstanding, imagine that quid-pro-quo [qpq] corruption was nonetheless high, if unnoticed. Then, in the 1970s, Watergate-like events convince America that qpq corruption is indeed rampant. Trust drops dramatically, even if “gift economy corruption” [GEC] is low. Then imagine that in the 1980s, QPQ corruption gets driven out of the system, while GEC begins to rise, taking off in the 1990s. Everyone begins to believe Congress for sale, not in the QPQ sense, but in the GEC sense. Trust thus remains low, even though money in the GEC sense is only just taking off.

If these were the facts, then my claim about the corrupting influence of money would be true, even though aggregate trust would be uncorrelated to the rise of money. Which is to say, again, that you can’t look at the aggregate “trust” number to measure whether the presence of money makes people less trusting. I said nothing about the former; my claim is about the latter; and the aggregate levels of trust across time tell you nothing about the dynamic that I am describing at any particular time. (You can read the most extensive section in the book about this question of trust in government (as opposed to the dynamics of trust generally) here.)

Which leads to the “surprisingly incomplete” bit: 

A central part to my argument is that the current system for funding campaigns may actually exacerbate polarization. I don’t assert that it does — to the great frustration of my editors and activist friends, I am obsessively careful throughout this section of the book to insist I am just pointing to correlations, and don’t have the data to demonstrate causation. (“In this odd and certainly unintended way, then, the demand for cash could also be changing the substance of American politics. Could be, because all I’ve described is correlation, not causation.” p98) But I do suggest that the pattern of positions taken by both parties is consistent with the desire to raise campaign cash. 

This pattern, however, is interestingly mixed, or complicated. For some issues, it requires both parties to take more similar positions. On other issues, it requires the parties take more divergent positions. As I say, 

[T]he correlation should concern us: On some issues, the parties become more united—those issues that appeal to corporate America. On other issues, the parties become more divided—the more campaign funds an issue inspires, the more extremely it gets framed. In both cases, the change correlates with a strategy designed to maximize campaign cash, while weakening the connection between what Congress does (or at least campaigns on) and the potential needs of ordinary Americans. (p98)

How this works is not obvious or straight forward. It might not even be right. But what’s frustrating in Ezra’s review is that he doesn’t even seem to recognize that I made the argument. Again, he takes the summary from page 8 of the book, and claims it doesn’t “stand up to scrutiny” without even examining the actual argument that page 8 was intended to summarize. As he writes: 

Nor is it clear that more money leads to more power for “the extremists at both ends.” For one thing, the timing doesn’t work. Polarization begins to accelerate in the 1980s, not the 1990s. For another, it simply seems unlikely. If you’re talking about lobbying, or fund-raising, the money is with the corporations. But the biggest employers of lobbyists — the Chamber of Commerce, GE, the American Medical Association, the National Association of Realtors — aren’t interested in endless partisan warfare.

Put aside the timing point (which is correct but not relevant): the frustration is that I describe precisely how this very fact is consistent with fundraising driving polarization. Ezra either ignores it or misses it, when what I was keen to understand is whether it was right.

Or put differently: Everything Ezra says in the paragraph just quoted, and in the paragraph after that —

Conversely, small donors, particularly on the congressional level, tend to be more ideological types. There’s good evidence that legislators who make extreme statements have an easier time fund-raising than those who don’t. When House Republican Joe Wilson shouted “You lie!” during President Obama’s health care address, he raised $2 million in under a week. The thing about the “sensible middle” is that they, quite sensibly, don’t spend all that much of their time following congressional races, or even politics. So politicians looking for small donors need to find the engaged, invested voters who are actually interested in primary campaigns, and those voters are usually so engaged and invested because they have chosen a side, and done so strongly.

— I also say. But my book puts these two bits together to suggest how the drive for cash might have a role in explaining each. Ezra hasn’t through “scrutiny” shown how that claim “doesn’t stand up.” He has simply ignored the claim.

Those mistake on their own wouldn’t bother me much. It’s a long book. There’s lots to miss. The bigger problem is the ultimate conclusion that the review (and its title) suggests — that money isn’t the problem we should be worrying about. (“Which suggests that as big a problem as money is in politics—and make no mistake, it is a big problem, as the rise of the Super PACs shows all too clearly—it is not the only one, and it is probably not even the worst one.”)

He gets to make this suggestion because of a very clever point that he notes that I hadn’t seen myself. The review links my book and Jack Abramoff’s, Capitol Punishment. Obviously, I wrote my book before I read Abramoff’s, and I was very happy to see the way that our two accounts of the problem are similar.

But Ezra noticed the interesting point that all of the lobbying that Abramoff describes is for petty stuff (in the grand scheme of things) and yet the argument I’m making is about the big things (the Republic, for example). And so Ezra writes: 

[Lessig and Abramoff’s theories] do more to illuminate the workings of small issues in American politics than big ones. In that, they’re like quantum mechanics. Abramoff’s methods are fine for winning favors for small clients, and Lessig’s model goes a long ways toward explaining why politicians might listen when Hollywood signs up some high-powered lobbyists to tighten copyright protections, but neither is much of a help when it comes to the major clashes in American politics. You need a theory of general relativity to explain the big stuff. And that theory is partisan polarization.

In fact, this is not like “quantum theory,” because these effects do have an effect at both large and small scales. Quantum effects don’t. (See Lisa Randall’s wonderful new book).

It is true, as Ezra argues, that money is not going to change the roll-call vote of anyone on any issue of any import. It doesn’t, as Ezra writes, “decide which votes ended up in the ‘nay’ column and which ended up in the ‘aye’ column.”

But it is a big mistake to infer from this that money isn’t playing a crucial role on these issues. Its role, we both agree, is to change the substance of the bill upon which there is a final vote, and sometimes, crucially. 

I made this point repeatedly in the book, most directly when discussing the health care bill. I quoted former Senator Larry Pressler (R-SD) who was describing for me just how money has its effect. The first example he offered was about “single payer health plans.” As Pressler said:

There should have been an up or down vote on [single-payer health insurance], or a vote at least on cloture. There was neither. For some reason, it just went away. Barack Obama abandoned it completely, although he had said he was for it. Some Republicans are for it—I was for it way back and Nixon was for it … on a much more significant basis. Bob Packwood had a plan for it. But the point is, when they really started doing the health care bill, everybody disappeared who was for a single payer system. I would suspect that is because of the insurance companies’ contributions, especially to the Democrats. p151

You don’t get much bigger than this. Pressler’s point is that here is where the money is having its effect — in the crafting of the options that will eventually get voted upon. Ezra recognizes this — he says in his review, “That’s not to say that lobbyists and interest groups don’t have a hand in the construction of these laws—before they came to a vote. … But in the end, it didn’t decide which votes ended up in the ‘nay” column and which ended up in the ‘aye’ column.”

And then he draws from that (contradictory) acknowledgement this conclusion: 

Which is to say that while moneyed interests are decisive in passing laws and influencing provisions that few Americans care about, they’re much weaker on the issues where Americans are watching.

So money can remove an issue from a public vote, even if it couldn’t win with the issue if there were a public vote. I don’t get why that means money is weaker. Maybe it means money is smarter — fight where the battle is least costly, and the other side can afford to give you the most. 

In the end, what separates Ezra and me is our own sense about which problem is fundamental. Ezra is focused on polarization. I’m focused on the money. I think the money is a more fundamental problem, in part because I think it helps explain at least part of the polarization. In that sense, it is a “root.”

Not because, as Ezra says I say, money “is the problem in American politics.” (emphasis is Ezra’s).

Not because money is “the single cause of everything that ails us.”

Not because fixing this problem is “the one reform that would make democracy hum.”

But instead because fixing this problem “would be generative.” 

Fixing this problem is the one “intervention that would give us the chance to repair the rest.” That is the sense in which money is a root: Fix it, and you can fix the others. Without fixing it, you won’t fix the others.

I am surprised this sense of “the root” is so hard to grasp. Never have I said that fixing the money gets us utopia (as if anyone should want utopia), or that the only problem our democracy has is the money. (Thus making the editor’s choice of titles especially weird: “Our Corrupt Politics: It’s Not All Money.” Who said it was?) What I have argued is that money is the problem we must address first, if we’re to succeed in any other reform.

And if that were the sense that was understood, then Ezra’s last sentence in his review would be perfectly correct — that as big as the problem of money is, “it is not the only one, and it is probably not even the worst one.”

True, not the only one, and not the worst one, but still, the root, just as addiction is the root with an alcoholic. As I write at the end of the book: 

Think about the alcoholic and his plight. He might be losing his family, his job, and his liver. Each of these is a critically important problem, indeed, among the most important problems a person could face. But we all recognize that to solve any of these “most important” problems, he must solve his alcoholism first. It’s not that alcoholism is the most important problem. It’s not. It is just the first problem.

So, too, with us. There is no end to the list of problems we as a nation face. Whether big government or bad health care; complicated taxes or global warming; a ballooning deficit or decaying schools. But we won’t solve these problems until we solve our first problem first: a dependency that has corrupted the core of our democracy. 

These other problems are certain much “worse problems.” We just won’t get to them until we fix this first problem first. 

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On making visible the Anti-Corruption Movement http://www.lessig.org/2012/03/18556105975/ http://www.lessig.org/2012/03/18556105975/#comments Thu, 01 Mar 2012 17:23:01 +0000 http://lessig.tumblr.com/post/18556105975 The standard line of the political pundits is that Americans don’t care about the corruption of their government. That the issue doesn’t, as I was lectured by panelists on a Dan Rather show, “move any votes.”

I don’t buy it. Rasmussen consistently ranks “corruption” among the handful of “very important issues.” And if there is one thing the Tea Party and Occupy Wall Street should agree upon, it is this issue.

But it is true that we’ve not done enough to make visible the support for an Anti-Corruption Movement. And given the candidates we’re likely to see in the 2012 presidential race, I’m not betting that they’re going to help us any time soon.

So today we’re launching a project to make the corruption issue more visible. We’re joining an international anti-corruption movement (though of course the corruption we suffer is quite different from most across the world), by enabling citizens to commit to the fight against the corrupting influence of money here.

At TheAntiCorruptionPledge.org (or AntiCorruptionPledge.org or CorruptionPledge.org), we ask citizens to take a pledge to do whatever they can to end the corrupting influence of money in our government. You can simply make that pledge, or add to it the specifics you support. We then ask you to help us recruit candidates and incumbents to take the same pledge. When they do it, they can specify precisely which reforms they would support. Finally, we ask everyone to help us with this volunteer project. Built first by some dedicated pro-reform hackers, it has been launched by Rootstrikers. But Rootstrikers will give up control over this site once a community gets going on the wiki that supports it. 

So please, #TakeThePledge. And spread it far. 

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On “loving” Barack Obama http://www.lessig.org/2012/03/18555508364/ http://www.lessig.org/2012/03/18555508364/#comments Thu, 01 Mar 2012 17:06:00 +0000 http://lessig.tumblr.com/post/18555508364 I was on @MorningJoe today with @BuddyRoemer, talking about (surprise, surprise) money in politics.

Mika asked me whether I thought that in 2008, Obama was a Roemer-like reformer.

Of course he was!, I said. But then I said something that — in the binary way that is politics today — was understood by many (as the twitter flame war suggests) to imply that I was just a sour-grapes Clinton supporter, still trying to prove that she would have been the better candidate. 


So, first: I was, from the start, an Obama-fanboy. I was in 2004 (when I wrongly predicted he’d run (for the first time) in 2012). I was in 2007 (when I was urged by friends not to alienate the Clinton campaign by coming out for someone who could not possibly win). When he did win, I was convinced that he was going to be the greatest President of our time. I believed then, and still do now, that he might be the only politician in America who could rally America to the change we need.

But, and second, I believed all that because I thought that Obama believed what he had said (again and again): that unless we changed the corruption of DC, we weren’t going to change anything. As I described last month in Salon

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On reading books in the eReader era http://www.lessig.org/2012/02/17720255765/ http://www.lessig.org/2012/02/17720255765/#comments Thu, 16 Feb 2012 19:13:00 +0000 http://lessig.tumblr.com/post/17720255765 UPDATE #2: (Wonderfully) Byliner has decided to remove DRM from the book. If you get it after tomorrow, it should be DRM free. 

UPDATE: A print on demand version of the book will be available Monday. Thanks to Byliner for working quickly with Blurb to make this happen.

My book, One Way Forward: The Outsiders Guide to Fixing the Republic, was published Tuesday by Byliner. The book is an ebook. I had expected it would have a print-on-demand alternative. That was a pretty important expectation for me, for reasons anyone who knows me must recognize, but so far, a Print-on-Demand option has not been enabled. 

I’m trying to fix this (long before the work becomes CC licensed (August 15)). Meanwhile, here’s something that some might have missed: 

If you buy the book from Amazon, you can download a free (as in beer, not speech) Kindle Reader. You don’t need a Kindle, in other words, to read it. So you can read it on your computer, your phone, your iPad, your Android, and if as you do, the system remembers (and syncs) how far you’ve gotten. With the Amazon system, you can also highlight sections, and the highlighted section is then sent to the web, so all your notes are in one place. Not quite a physical book, I realize, but something to bring the gap till we find a POD alternative. 

Apologies to everyone this has hassled. Stay tuned for more on the saga of the POD version. 

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“Money is not speech” http://www.lessig.org/2012/02/17166737111/ http://www.lessig.org/2012/02/17166737111/#comments Mon, 06 Feb 2012 20:38:15 +0000 http://lessig.tumblr.com/post/17166737111 I’m a critic of Citizens United. I’m a supporter of an amendment to reverse it (among other things). I’m even (sort of) a supporter of an amendment to declare “corporations are not persons.” But I am not a supporter of any amendment that purports to declare “Money is not speech.”

My former dean, Geof Stone, explains why in this piece in the Huffington Post. Stone’s work as a First Amendment scholar actually set the framework for the Court’s core First Amendment jurisprudence (not the Citizens United bit, but the content neutral/content based, etc. bit). 

I would urge all who care about this issue to think through his piece carefully. My view has been that we need to attack the problem, not with radical changes that would have loads of unintended consequences, but with targeted responses, that would actually address the problem the Court has created. 

So, e.g., with this issue: Imagine a city council passed a resolution that said no one could spend more than $100 on a race for City Council (aka, an incumbency protection resolution). If “money is not speech,” how is that successfully attacked? 

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“Campaign Contributions buy results in Congress” http://www.lessig.org/2012/02/16992679484/ http://www.lessig.org/2012/02/16992679484/#comments Fri, 03 Feb 2012 22:01:42 +0000 http://lessig.tumblr.com/post/16992679484 I’ve referred a number of times to a survey that the Global Strategy Group did for us last year about the public’s perception of the role of money in politics. Seventy-five percent affirm that “campaign contributions buy results in Congress.” Here are the highlights of that survey. Here are the crosstabs.

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The Article in Handelsblatt http://www.lessig.org/2012/02/16861888583/ http://www.lessig.org/2012/02/16861888583/#comments Wed, 01 Feb 2012 13:02:00 +0000 http://lessig.tumblr.com/post/16861888583 I wrote a short reply piece to an essay by the German politician Ansgar Heveling about the SOPA/PIPA war. I hadn’t realized they would translate the piece. Here is the original. 

The original version of this referred to Heveling as a “minister.” That was a misunderstanding of mine about the convention for referring to a member of the Parliament. Turns out that misunderstanding was primed by a friend who referred to a member (in his presence) as “minister” in an aspirational, as opposed to descriptive sense. I missed the point (i.e., that he wanted this member to become a minister). Anyway, stupid mistake on my part. Heveling is not a minister. He is a member of the German Parliament, from the CDU party. 

And so why am I writing this?  I was asked, and though I’ve been pretty good about saying no (to stay focused on the corruption/Rootstrikers issue, I have a special weakness for responding to people who want to frame the digital generation as 1960s communists.

An iMaoist Replies

Lawrence Lessig

The first lesson of history is that the way the world was carved-up conceptually when you were an undergraduate is not necessarily they way the world is. Things change. Alliances change. And it sometimes happens — rarely, but sometimes — that there’s actually something new that critical minds, including especially the government, needs to understand. 

CDU politician Ansgar Heveling tells us he is a “politician well aware of history.” But I suggest that he has forgotten this first lesson of the historian. For he has interpreted the recent battle in the United States over “SOPA” and “PIPA” as if it were a fight in the Paris streets circa 1968. As he tells it, on one side of that battle is all that’s good — read classical liberal society. On the other is all that’s been proven wrong — read “Maoists.” And it’s only a matter of time till this generation of “digital Maoists” finds itself swept into the dustbin of history, as every other generation of Maoists has been before. Because between those who “care about other people’s property” and those who don’t, history is on the side, or so this story goes, of the care-ers. Always.

But a clue to Mr. Heveling’s cluelessness comes from a simple reference to some of SOPA/PIPA’s strongest opponents. It wasn’t just liberal Democrats, such as Representative Zoe Lofgren (D-CA) and Senator Ron Wyden (D-WA) who opposed the bills. It was also right wing Republicans, such as Representative Darrell Issa (R-CA), House Majority Leader Eric Cantor (R-VA), and Senator Orrin Hatch (R-UT). That’s because the opposition to SOPA/PIPA wasn’t an opposition to copyright. It was an opposition to copyright über alles: The view that the value in protecting copyright (or more precisely, a 19th Century version of copyright) trumps every other important constitutional and economic concern. SOPA and PIPA were an unprecedented power-grab by the copyright industries, giving the executive in the United States unprecedented power (at the bidding of those same industries) to censor allegedly piratical sites. The government could block IP addresses, or remove domains from the Internet domain name service, all while denying those censored any meaningful opportunity to show their innocence. In the name of ridding the Internet of “piracy,” SOPA and PIPA would have thus flipped longstanding presumptions of American (and German) law. And by drawing government censors into the infrastructure of the DNS, the bills would likely have weaken Internet security, and undermine its potential for a wide ranging innovation. In a line, these bills had no sense of a central concept of German law — proportionality. And so in response to their extremism, and for the first time in modern history, a broad-based coalition of liberals and libertarians and (some) conservatives united with the Internet community to tell Congress “Enough!”

It’s about time. For more than a decade, the United States has been leading the world in (yet another) war — “the copyright war,” as many call it, or, as Jack Valenti, the late President of the Motion Picture Association of America used to refer to it, his own “terrorist war,” where apparently the “terrorists” in this war are our children. 

This war has been an utter failure. Not because computers have made us Maoists, but because the architecture of the copyright law that is now being forced upon the Internet was crafted for a different age and different technology. A strategy for rewarding artists that regulates “copies” makes as much sense in the digital age as a strategy for controlling greenhouse gases that regulates breathing. The modern law of copyright is a failure, not because copyright is a failure, but because in the current technological environment, the machine that we are using to protect the values of copyright is a failure. 

The response to this failure, however, is not to give up on copyright law. It is instead to update copyright law, to make it make sense in a digital age, so as to allow it, without breaking the Internet, to continue to serve its essential purpose: rewarding artists for their creativity, and thereby creating the necessary incentives that at least some authors need to create. 

No doubt there were some copyright abolitionists in the movement that stopped SOPA/PIPA. But not many. The overwhelming majority of Internet activists who have now achieved their first real victory support the idea of copyright, at least if properly crafted. They recognize the digital age has not ended the need for artists to secure the independence that copyright can provide. Nor has it magically eliminated the risk and uncertainty that great creativity inspires. 

The digital age has, however, changed the way in which the law can effectively achieve copyright’s objectives. And if sensible policymaking around copyright were the policy in America, we would have begun the process of mapping a copyright law appropriate to the digital world a decade ago.

But we didn’t. Instead, for almost 15 years now, Hollywood has forced through Congress bill after bill, all focused on the hopeless task of forcing digital creativity back into the model of the 20th century. With each round of failure, they demand even bigger bombs. The copyright wars have become the Internet’s Vietnam, and American policymakers are still being pushed to wage an ever more effective war against “the enemy.”

We Americans have come to depend upon the saner, more balanced opinion of our allies to get us to see the hopelessness in our hopeless wars. Especially with this war, where the corruption that is our political system makes it almost impossible for congressmen to even notice the craziness in the lobbyists’ proposals — at least until the Internet organizes a protest to wake them up. And indeed, the German Greens have begun to do precisely this, by pushing the alternative of a “cultural flat rate,” as just one way among many that might better accommodate the interests of copyright to the nature of the digital age. 

We need more such independence. Not just to assure that the next generation of innovators can innovate as freely as Microsoft and Google did. But also to protect the very idea of copyright. 

For most astonishing even to me is just how much public support the critically important public value of copyright has lost over the past decade. And like many say of support for the United States, not so much because of the arguments of its challengers, but because of the response of those challenged. You don’t hold the hearts of a people by suing their children. It is time the supporters of copyright put down their guns, and turned to the hard work of crafting a law of copyright that the public could actually support. 

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An (Elihu) Root-striker http://www.lessig.org/2012/01/16175270806/ http://www.lessig.org/2012/01/16175270806/#comments Fri, 20 Jan 2012 16:50:14 +0000 http://lessig.tumblr.com/post/16175270806 I’ve been pushing the Henry David Thoreau inspired vision of “rootstrikers”:

There are a thousand hacking at the branches of evil to one who is striking at the root.

Maggie McKinley reminds me of the other rootstriker inspiration — one pointed to by the Supreme Court in their McConnell v. FEC decision: 

More than a century ago the “sober-minded Elihu Root” advocated legislation that would prohibit political contributions by corporations in order to prevent ” ‘the great aggregations of wealth, from using their corporate funds, directly or indirectly,’ ” to elect legislators who would ” ‘vote for their protection and the advancement of their interests as against those of the public.’ ” … In Root’s opinion, such legislation would ” ‘strik[e] at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government.’ ” … The Congress of the United States has repeatedly enacted legislation endorsing Root’s judgment.

Let them again. 

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Credit Reports http://www.lessig.org/2011/12/15083311983/ http://www.lessig.org/2011/12/15083311983/#comments Sat, 31 Dec 2011 15:35:09 +0000 http://lessig.tumblr.com/post/15083311983 So under the FACT Act, you get a free credit report each year from each of the major credit rating agencies. At AnnualCreditReport.Com you enter basic info, and then it gives you a link to each agency to get your report. 

Cool. Except…

To verify identity, the report asks you a series of questions about things supposedly only you would know. And it also asks you things you don’t even necessarily know! E.g., say you had a mortgage that got sold to some other mortgage company. It asks you whether you ever had a mortgage with a list of companies, including that other company. You, of course, are unlikely to know who owns your mortgage (you make the same payments in the same way regardless). And when you get the question wrong, you have to then apply through mail only. 

Or, of course, you could buy the report if you like… 

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The Grant and Franklin Project http://www.lessig.org/2011/12/14357153028/ http://www.lessig.org/2011/12/14357153028/#comments Sat, 17 Dec 2011 16:15:00 +0000 http://lessig.tumblr.com/post/14357153028

In Republic, Lost and in the New York Times, I have described a version of small dollar funded elections that I have called “The Grant and Franklin Project.” Here’s a brief statement of the plan. 

Assumption: Every voter pays at least $50 to the Federal Treasury in the form of taxes of some kind (income, payroll, etc.) (see, e.g., this JTC report).

The Plan:

  1. The first $50 of revenue paid to the Treasury is rebated in the form of a Democracy Voucher.
  2. That voucher (or any portion of it) can be given to any candidate for Congress who agrees to fund his or her campaign from two sources only: (1) Democracy Vouchers and (2) contributions from United States citizens capped at $100. 
  3. If the voucher is not used, it reverts to the political party to which the voter is registered. 
  4. If the voucher is not used, and the voter is not registered to a party, it reverts to a fund to support democracy in America. 
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A modification to the Proposed 28th Amendment http://www.lessig.org/2011/12/14216645719/ http://www.lessig.org/2011/12/14216645719/#comments Wed, 14 Dec 2011 15:36:00 +0000 http://lessig.tumblr.com/post/14216645719 Consistent with the brilliant call by Rootstrikers.org, I have modified Publius’ proposed 28th Amendment to assure that at least the First Amendment would not be construed to grant to any non-natural person (i.e., a corporation) any “unalienable” (as the Declaration puts it) rights. The added text in ¶2 is as follows: 

Nor shall the First Amendment be construed to vest in any non-natural person any unalienable constitutional rights. 

This version of the “corporations are not persons” movement is meant to be as narrow as possible to achieve the change we need. There’s no reason not to allow legislatures to vest corporations with “personhood” when that’s convenient and helpful — e.g., it’s useful to be able to sue Exxon as a person for damages done by an oil tanker. The key is to make sure that a corporation can’t claim a constitutional right against the judgment by a legislature. 

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Notes on the Proposed 28th Amendment http://www.lessig.org/2011/12/14045188223/ http://www.lessig.org/2011/12/14045188223/#comments Sun, 11 Dec 2011 02:43:00 +0000 http://lessig.tumblr.com/post/14045188223 The Amendment that Publius proposed has some thought behind it, not all of which is apparent on the surface. Here are some notes, tied to each paragraph. 

For the purpose of securing the independence of the legislative and executive branches, Congress shall: 

Preambles haven’t had much success in our constitutional tradition (see, for example, the Court’s complete failure to pay attention to the Progress Clause perambulation), but you can’t fault a guy for trying: This aims at making it perfectly clear that the purpose of this Amendment is to protect or better secure the independence of Congress and the Executive, by which I mean the proper dependence: As Federalist 52 puts it, “upon the People alone.”

(1) fund federal elections publicly, at no less than the equivalent of the total amount spent in the election cycle when this article is ratified; 

This is one of three critical changes: Public elections must be publicly funded. Precisely how is for Congress to determine. I prefer a “small dollar funded elections,” such as the Fair Election Now Act or what I’ve called the Grant & Franklin Project. The “at no less than” clause makes sure Congress doesn’t underfund the system (and thereby entrench the incumbents). “The equivalent of” again is intended to index the amount to inflation. 

(2) limit any non-anonymized contributions to candidates for federal office to the equivalent of $100;

Some good souls want to GetMoneyOut. I want to get corrupting money out. I am with Spencer Overton: Obama taught us the importance of getting small dollars in (even if that lesson seems to have been forgotten). So this part would preserve the participatory money, while keeping out the corrupting money. “The equivalent of $100” is meant to index the $100 to inflation. 

The most puzzling bit of this paragraph is the “non-anonymized” part. This is meant to leave it open to Congress to permit (truly) anonymous contributions. I know the intuition is that’s impossible. But as Ackerman/Ayres show, it’s quite possible. The proposal is complex, but the key is to make contributions revokable — so even if I can show you today I contributed $5,000, tomorrow I can revoke it so you can’t be sure. Read more about it here.

(3) have the power to limit, but not to ban, independent political expenditures within 90 days of an election, including, but not limited to, expenditures in support of, or in opposition to, a candidate for federal office.

This is the bit that responds to Citizens United. As I argue in Republic, Lost, there was a kernel of truth in the Court’s decision: No one or thing — corporations, dolphins, or the Chinese – should be banned (or effectively so by being so burdened) from saying anything. Especially not the non-profit filmmakers, Citizens United, Inc. But that doesn’t mean that there is no legitimate corruption-related interest in limiting “independent” expenditures. Of course there is a fundamental difference between Citizens United spending its money to promote its film about Hilary and a Exxon spending $100 million in an election. This clause recognizes that difference, by giving Congress the power to limit “independent political expenditures” — whether corporate or individual — during the time around an election, whether “issue ads” or promoting/opposing a candidate. 

2. The First Amendment shall not be construed to limit legislation enacted pursuant to this article, save to assure content and viewpoint neutrality. Neither shall the First Amendment be construed to limit the equivalent power of state or local legislation enacted to regulate elections of state or local officers.

So this is a critically important paragraph that reintroduces First Amendment values (the guarantee of government neutrality) into campaign finance regulation. The concern is that ¶1 alone might be read to completely free Congress from the duty to be neutral. So, e.g., a ban on one side vs the other. Also, ¶1 doesn’t do anything to give States and localities the freedom to secure their own independence of elected officials, or judges (as some states (very stupidly) choose to elect judges).

3. Congress shall by law establish an agency for federal elections which shall enforce the provisions of this article, and whose principal officers shall be non-partisan commissioners who have served at least 10 years as a federal judge. The agency shall have standing to enforce the provisions of this article judicially in the federal courts, and the judicial power shall be construed to extend to actions by the agency against Congress.

A big problem is who gets to enforce the rules. Existing Supreme Court doctrine makes it hard to imagine anyone with the power to force Congress to do its work. (“Force” in a weak sense of the term: nothing can really force Congress to do anything). So this first creates a new F.E.C. It fills it with effectively neutral commissioners — I stole this idea from Bruce Ackerman. And it expressly says that Courts have to let that commission sue to enforce the provisions of this Amendment, including the ability to enjoin Congress to act. That is a very dangerous power, I know. Many democracies have tried it and failed. So this might be trouble.

Nonetheless, this is a crucial part of the amendment. The current FEC is hopeless, and hopelessness is in its DNA. There must be a body with constitutional standing to hold Congress to the terms of this Amendment. 

4. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This is the standard clause that gives Congress “Necessary and Proper” power with respect to this Amendment. So Congress gets to pass the implementing legislation, and other “appropriate” legislation. 

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