January 20, 2012  ·  Lessig

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. 

December 31, 2011  ·  Lessig

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… 

December 17, 2011  ·  Lessig

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. 

December 14, 2011  ·  Lessig

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. 

December 11, 2011  ·  Lessig

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. 

December 10, 2011  ·  Lessig

I hear that Publius submitted this to Dylan Ratigan’s Great 28 Debate: (slight but important edits inspired by fantastic feedback from souls from #occupyDC) : 12/15/11) (for version history, see the protected version of this at the lessig-wiki).

  1. For the purpose of securing the independence of the legislative and executive branches, Congress shall: 
      (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; 
      (2) limit any non-anonymized contributions to candidates for federal office to the equivalent of $100;
      (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.
  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. Nor shall the First Amendment be construed to vest in any non-natural person any unalienable constitutional rights. 
  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.
  4. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Thoughts?

November 27, 2011  ·  Lessig

I’ve got three kids — two boys (8 and 5), and a girl (2). We regulate their access to technology (not sure why, or how best, but we try). And we want to find excellent Apps (in both Chrome and for iPad/Pods), appropriate to their ages. 

So why isn’t it easy to filter based on age? It isn’t helpful to be told that there are tens of thousands of “education” apps. Why can’t I see those appropriate for a 5 year old? Or 8 year old? Then maybe sorted by ratings? 

This seems so obvious I’m sure I’m missing something, but seriously: Why isn’t this easier? 

November 27, 2011  ·  Lessig

Thanks for your call, which I am sorry I was not able to accept. But after many too many contributions to candidates for Congress, I have adopted an absolute rule: 

I will not consider making a contribution to your campaign for Congress unless you commit absolutely and prominently to support reforms to end the corrupting influence of money in Congress.

“Absolutely and prominently” means this is the thrust of your campaign: One of the first things you mention, the issue you come back to again and again, and the issue you use to explain every other issue. Buddy Roemer is the best example of this. If you’re Roemer-like, then I will consider contributing to your campaign. 

That is a necessary condition. It isn’t sufficient. I don’t have a great deal of personal wealth. But if you can certify you qualify as a #rootstriker, I am happy to consider contributing, whether you’re a Republican or Democrat, and happy to share that fact with others. 

Good luck with the campaign. The institution you seek to serve within was the crown jewel of our Framers. It has since been badly tarnished. I hope you can commit to restoring it. 

November 23, 2011  ·  Lessig

I’m looking for an app that will take a bunch of files (ideally, html), index them, and then produce a cross-platform stand-alone database app, so I could distribute all the files and the app on a thumb drive, and someone could use it to search on the files. (And don’t ask why. It’s TOP SECRET.)

Is there such a thing? Kind of redundant with OS functionality, I realize, but the HTML is well ordered so ideally there would be fields here. 

Thanks in advance. 


November 23, 2011  ·  Lessig

So I’ve gotten a bunch of requests from people for signed copies of my books. (Seriously, like at least 14 million so far  and counting). At first it seemed like a cumbersome thing to arrange, but we’ve figured out a relatively simple way to do this. 

Here it is: If you’d like a signed copy of any of my books (but I’m hoping, especially, my new book, Republic, Lost: How Money Corrupts Congress and a Plan to Stop It (Twelve, 2011)), then: 

  1. Locate the Amazon price.
  2. Add $3.50 for postage (US, for one book; if you need foreign or more, email first and we’ll calculate it)
  3. Paypal (commerce(at)lessig(dot)org) me that amount, with (a) an address you want it shipped to and (b) the inscription you want.
  4. And smile, knowing your book is (sort of quickly) on its way!