Welcome Lawrence Lessig (FixCongressFirst) and Host Glenn Greenwald (Salon.com)

[As a courtesy to our guests, please keep comments to the book.  Please take other conversations to a previous thread. - bev]

Republic, Lost: A Declaration for Independence

Host, Glenn Greenwald:

Much pundit ink has been spilled pondering why the OccupyWallStreet protest has grown so rapidly and resonated so widely. But the answer is really not difficult to apprehend. Our political system is fundamentally broken by corruption and oligarchical control. Many people know this. They have rationally concluded that voting fixes none of these systemic problems precisely because the problems are systemic. And going out into the street to protest and demand an end to this corruption is the only perceived means of redress.

The new book from Harvard Law Professor Lawrence Lessig — Republic, Lost: How Money Corrupts Congress-and a Plan to Stop It — expresses the same point in a slightly different way in its very first sentence, quoting MSNBC’s Cenk Ugyur: “There is only one issue in this country: campaign finance reform.” That may sound like hyperbole to some, but it is not. Once one recognizes that this money-for-influence disease pervades every important American political institution — particularly the one meant to represent the people: the U.S. Congress — then all other specific political grievances become, in a sense, completely secondary.

If, as Lessig conclusively demonstrates, Congress is indifferent to the will of the people and to democratic debate — because it has been captured by monied interests to whose interests it exclusively attends — then the people lose the ability to affect what government does in any realm. It doesn’t make much difference which problem you believe is most pressing: this is the dynamic that lies at the heart of it. Inaction on climate issues is due to the power of polluters and energy companies; the power of the private health insurance industry blocks fundamental health-care reform; endless war and civil liberties abuses are sustained by the power of the surveillance and National Security State industries; and a failure to achieve real Wall Street reform is due to the fact that, as Sen. Dick Durbin amazingly acknowledged about the institution in which he serves, “the banks frankly own the place.”

Without finding an effective way to address that overarching problem, the only recourse for citizens becomes either passive acceptance of their powerlessness (i.e., apathy and withdrawal) or disruption and unrest fomented outside of the electoral system (the driving ethos of OccupyWallStreet). Lessig’s book is so vital not only because it provides such irrefutable proof of how fundamentally corrupt our political process is — most readers participating on this blog are already well-acquainted with that fact — but because it (and among books on this topic, it alone) offers a serious, plausible roadmap for how to uproot this corruption.

In that regard, Republic, Lost is like a prescient anthem for what is driving the eruption of Wall Streets protests, and is the definitive guide for understanding the depth of oligarchical corruption and what can be done to stop it. That’s not a surprise. Lessig has long been one of the leading voices in trumpeting how severe this problem has become and has developed an unparalleled expertise in this topic. Simply put, there is nobody who knows more about the legalized corruption swamping the country, speaks with greater passion or authority about its harms and the need to address them, and is more thoughtful about the needed remedies.

So driven by conviction is Lessig that he fully transformed from loyal supporter of the 2008 campaign of his long-time friend and legal academic colleague Barack Obama into a harsh critic of how both parties are subservient to the corporations that own the political process. Like many of us, Lessig saw that electing someone in whose goodness he believed (and still believes) changes very little. Indeed, Lessig doesn’t blink from following his premises of pervasive political corruption through to their logical conclusion about what that means for voting for one of the two parties. He makes clear what the implications are of this corruption: “Democracy on this account seems a show or a rule; power rests elsewhere. . . . the charade is a signal: spend your time elsewhere, because this game is not for real.”

Unlike most books of its genre — namely, systemic critiques of the political system — Lessig is determined not to confine himself to mere problem diagnosis or, worse, to spawn defeatism. For him, describing the problem is not an end in itself, but the necessary prerequisite for his ultimate goal: spawning support for his recommended courses of action. For politically informed readers such as those here, those proposals are the meat of this book, the reason this is very worth spending your time to read. What makes his proposed solutions so engaging — and important — is that they are not mere academic exercises, nor are they confined to the trite responses good government advocates often offer. Rather, Lessig is, above all else, a committed advocate, a reformer, and thus — perhaps uncharacteristically for a law professor — cares first and foremost about results, about outcomes. His solutions are accompanied by suggested tactics, grounded in reality, that take into account political impediments, and that is what makes them worthwhile.

You’re likely to disagree with some of his proposals; I do. As but one example, I have serious reservations in this political climate about opening up the Constitution to revision. But even when you’re reluctant to jump on board with each of his discrete proposals, you find yourself struggling with whether you should do so — precisely because he’s just presented you an irrefutable case that radical steps are necessary to begin to solve this truly radical disease in our democracy. That kind of provocative struggle is exactly what so few political books are able to trigger, but is exactly what we most need.

153 Responses to “FDL Book Salon Welcomes Lawrence Lessig, Republic, Lost: A Declaration for Independence”

BevW October 8th, 2011 at 1:56 pm

Lawrence, Welcome to the Lake.

Glenn, Thank you for Hosting today’s Book Salon.

Lawrence Lessig October 8th, 2011 at 2:10 pm
In response to BevW @ 1

Happy to be here, and grateful to Glenn for doing this.

Glenn Greenwald October 8th, 2011 at 2:10 pm

Great to be here – it’s an important book that FDL readers in particular will get a lot out of.

marymccurnin October 8th, 2011 at 2:11 pm

Hello Lawrence, Glenn and Bev!

Lawrence, Do you believe that OWS will have a real impact or are the powers that be just going to wait the demonstrators out?

Lawrence Lessig October 8th, 2011 at 2:14 pm
In response to marymccurnin @ 4

If OWS avoids being framed as a Left v. Right conflict, I think it has enormous potential, certainly much more important than the protests in Madison. Those could only be understood as Left (as it were in US) v. Right. But OWS can be understood as a challenge to the basic corruption of this system. Not just the fact that leading up to 2008, Wall St bought deregulation, but more astonishingly, after the Great Collapse of 2008, the fact that it bought avoiding real regulation. That should terrify any objective observer from the Left or the Right. And if OWS can focus that terror, it could be the beginning of the kind of cross-partisan reform we need.

ThingsComeUndone October 8th, 2011 at 2:15 pm

“There is only one issue in this country: campaign finance reform.” That may sound like hyperbole to some, but it is not. Once one recognizes that this money-for-influence disease pervades every important American political institution — particularly the one meant to represent the people: the U.S. Congress — then all other specific political grievances become, in a sense, completely secondary.

We have a problem with the money the Koch brothers and Mitt Romney get to spend all the money they want because they are corporations but they trade with Iran break the trade embargo and help fund Iran’s nuclear program.
They are guilty of Treason we are at war that means the Death Penalty. Obama can kill an American Citizen without even a trial because they joined Al Quieda but he won’t even try the Koch Brothers or Mitt.
It seems that as long as you have money you have more access to politics it does not matter what you do to get that money.

Lawrence Lessig October 8th, 2011 at 2:17 pm

Of course I agree. What’s surprising is the industry of punditry that try to deny that difference in access or effect.

marymccurnin October 8th, 2011 at 2:19 pm
In response to Lawrence Lessig @ 5

God, I hope so.

I read somewhere recently that some are trying to get Citizens United recinded since Thomas should have recused himself? Is this realistic?

Lawrence Lessig October 8th, 2011 at 2:21 pm
In response to marymccurnin @ 8

I don’t think it is realistic. More importantly, I think we Liberals need to practice better our democracy skills, and focus less on our litigation skills. Even with the constraints this Supreme Court has imposed, we can enact changes that can begin to get this Republic back. The hard challenge will not be 5 justices on the Court. It will be an industry of lobbyists within the beltway — and the wanna-be lobbyists we call Congressmen.

Glenn Greenwald October 8th, 2011 at 2:21 pm

Do you see any evidence that right/left or Rep/Dem tribal divisions can be overcome so that people on both sides of those divides can recognize how they are being shafted by the same problems?

Do you think OWS needs to put fear in the hearts of corporatists and their politicians – like the Tea Party began to do – before it can matter?

Kelly Canfield October 8th, 2011 at 2:24 pm

Hi Mr. Lessig – you were writing this book before OWS emerged and bloomed, so how does that phenomenon fit in with what Glenn called “serious, plausible roadmap” in your book, if it does.

ThingsComeUndone October 8th, 2011 at 2:24 pm

We need one person one vote how many congressional districts in California for example represent more people than a District in Montana? We in a sense game the system so that states that fail to attract enough population because they followed bad mostly GOP economic policies and listen to fox news get more representation in congress.
Smaller cheaper media markets like Montana are cheaper to control by buying all the media that is there and buying cheap tv ads.
States that actually attract people to live their have more media more information and as a result are more expensive to run tv ads in.
We can’t win with a political system where how much money you have is the biggest decider of who wins.
We can’t win in a political system where those with the least information/access to news are lied to regular and the cheapest places to buy tv ads.
We can’t win as long as they have more political representation than us.

CTuttle October 8th, 2011 at 2:25 pm
In response to marymccurnin @ 4

Aloha, Glenn and Lawrence…

…are the powers that be just going to wait the demonstrators out?

As Haaretz pointed out today , their massive Social Protest is in it’s death throes, Bibi seems to have outlasted them, and, even in Egypt’s Tahrir Square there’s much discontent with the snail’s pace in the changes…

Any thoughts…?

Lawrence Lessig October 8th, 2011 at 2:27 pm

I see no evidence in the field of normal politics — or normal media for that matter. The business model of division is too well settled, and we don’t even have the mechanisms yet to break it. It might be AmericansElect.com will do it, but so far, the ordinary, inside the beltway GOP/DEM politics seems untouchable. Indeed, the greatest disappointment I’ve seen so far is that the one really revolutionary Republican — Roemer — hasn’t even registered, even though he has more experience than any of the others, and has spent the last 20 years not in government, his anti-money message simply disqualifies him from the polite company of the republicans.

Re OWS: I get pulled in two directions on this, mainly because as a liberal, I want our “tea party” moment — the ability for the left to strike the fear of god in elected politicians just as the Tea Party has done for the right. But in saner moments, I believe we don’t have time for this cycle. The really great transformative possibility for OWS would be to defy the pundits and politicians; to resist the simple labeling; to frame itself instead as a radically diverse group all of whom believe this system is corrupt. Let corruption be the common refrain, and Left/Right becomes irrelevant.

marymccurnin October 8th, 2011 at 2:27 pm

Is an amendment to the constitution stripping corporations of personhood and taking away the theory that money is speech a viable option? Or is this too time consuming?

ThingsComeUndone October 8th, 2011 at 2:28 pm
In response to Lawrence Lessig @ 7

Of course I agree. What’s surprising is the industry of punditry that try to deny that difference in access or effect.

Its not only pundits its paid trolls and corporate money to righty blogs. Its the rich controlling the media Eric Ericson, Michelle Malkin etc had small blogs but they get tv jobs. Funny much bigger lefty bloggers with tons more readers can hardly get on tv to give a comment even on supposedly Lefty shows.

Lawrence Lessig October 8th, 2011 at 2:29 pm
In response to Kelly Canfield @ 11

OWS is a wonderful and unexpected development. As I was finishing the book, I was deeply depressed by the fact that all of the talk in politics seemed to be Left v. Right. And as I’ve said, as much as I’d love to have that fight (and win it once in a while), the fundamental reform this system needs will only happen if it can be framed as something other than Left v. Right. So OWS is potentially an engine to push that understanding along. And the roadmap I was trying to sketch depends upon just such an engine.

Peterr October 8th, 2011 at 2:30 pm

Lawrence, I’m not done with the book yet, but I’m really enjoying what I’ve read so far. This line, from the chapter on the financial system, speaks volumes (emphasis in the original):

The real story of the Great Recession is simply this: Stupid government regulation allowed the financial services industry to run the economy off the rails. But it was the financial services industry that drove our government to this stupid government regulation. They benefited *enormously* from this policy.

It strikes me that a huge hurdle for any meaningful change to conquer is the notion that government regulation is by definition evil.

Lawrence Lessig October 8th, 2011 at 2:32 pm
In response to CTuttle @ 13

Revolutions never fit the arch of a television show. There are great steps forward, and then many many steps backward. Israel has changed, even if not as dramatically as the protests wanted. And so too elsewhere. But here in the US, we don’t yet have even 1/100th of the will or resolve of the citizens in those societies. Let’s get that, and then see what progress we can make.

Margaret October 8th, 2011 at 2:32 pm

Thank you Glenn and Lawrence.

. They have rationally concluded that voting fixes none of these systemic problems precisely because the problems are systemic.

It seems to me that everything comes back to the money in the system. The people with the wealth and the power aren’t just going to relinquish it. Do you think it’s possible to change enough minds in this country to be able to take our country back from the Oligarchs without violence?

Jane Hamsher October 8th, 2011 at 2:33 pm

Hi Lawrence, thanks so much for being here, and for writing the book.

I know in the past fews weeks the energy has shifted so dramatically that things that seemed impossible only a short time ago now seem possible. How has that changed your perspective since finishing the book?

Lawrence Lessig October 8th, 2011 at 2:36 pm
In response to marymccurnin @ 15

I think the corporate personhood issue is a distraction, ignited by Citizens United, but not at the core of the problem facing this republic. Look, if we could reverse Citizens United today, and get back to where we were on January 20, 2010 (the day before Citizens United was decided), we would not have solved anything. Democracy in America was ALREADY BROKEN. Even without the clear permission for corporations to use their treasury funds directly to buy Congress, they had achieved that control indirectly.

The goal we should be aiming for has three parts: (1) Public funding of public elections, (2) A limit on contributions at around Buddy Roemer’s number — $100; (3) A Congress with the power to limit (but not ban) independent expenditures, at least within 90 days of an election. We can get (1) without any constitutional change. (2) and (3) will require amendment the constitution.

Now I believe there is 0% chance that Congress would initiate those amendments. That’s why in my book I explore the Constitutional Convention option. But the key is to recognize that we need no constitutional change at all to fight for the first essential step: public funding of public elections.

szielinski October 8th, 2011 at 2:37 pm
In response to Lawrence Lessig @ 5

I’d like to thank Mr. Lessig for all of his great work. That said, here’s my quibble. You wrote:

If OWS avoids being framed as a Left v. Right conflict, I think it has enormous potential, certainly much more important than the protests in Madison.

I strongly doubt that the Left-Right frame would determine the significance of the OWS movement. What will give the the OWS movement enduring significance is the growth of the movement (in size and national coverage) and the receptivity of some of the political elite to reforms that would placate the OWS movement. The OWS movement is just another attempt to push back, to push against the Neoliberal consensus that has informed the governance of this country since late in the Carter presidency.

Besides the size matter, the media will paint the OWS as leftists no matter what they do. Consequently, the OWS movement will harm itself if it seeks to distance itself from America’s historical left. It’s political success depends more on the willingness of some of the “lesser people” to participate in a movement that intends to defend their interests. If the “lesser people” fail to see the OWS as a political vehicle that intends to press for their interests, then any attempt to convince them that the OWS movement is not a part of the left will fail in any case.

Comments?

ThingsComeUndone October 8th, 2011 at 2:37 pm

When Rome lost its Republic the system worked for several centuries but advancement in human rights and science was also stalled for several centuries. When France had a revolution the system failed but human rights and science both got a huge boost. We argue that a fair democracy not one owned by the rich would produce a better economy and be less war like and respecting of others rights much like multi religious, cultural Muslim Spain where Muslims, Jews, Christians got along and science was encouraged.
Notice that as the rich try and steal our republic they divide our religions, races and attack science just like Christian Spain did during the Spanish Inquisition.
Your thoughts on are we Rome or France and are human rights and science anti Right Wing?

Lawrence Lessig October 8th, 2011 at 2:39 pm

This may change. I think the success of Fox is inspiring great stuff on the Left. Not all of it I agree with, but you can’t be unmoved by the Dylan Ratigans of this new media space, or impressed with the Chris Hayes, or amazed with the financial success of a HuffPo, with its fantastic investigative journalism especially about the money in politics stuff, or with the prominence of our own moderator. Competition happens in stages. Our side is on the upswing.

CTuttle October 8th, 2011 at 2:41 pm

I disagree with your premise that Israel has changed, I follow Israel closely and the Knesset and Cabinet have done nothing beneficial whatsoever, despite having had 1/5th of it’s Population turn out at it’s acme…!

That’s equivalent to 60 million Americans turning out all at the same time..!

Lawrence Lessig October 8th, 2011 at 2:42 pm
In response to Peterr @ 18

That’s right. And unfortunately we do lots to basically guarantee that government won’t regulate well. The SEC was completely hobbled during the lead up to 2008. Same with FDA, and EPA, not to mention HUD. Those who oppose the policy of the regulation work hard to make sure that the substance is so bad that it convinces even believers that government is inept.

I share the view that government has regulated poorly. I don’t believe it inevitably regulates poorly. And I strongly believe that in critical areas, we need it to regulate well.

UncertaintyVicePrincipal October 8th, 2011 at 2:45 pm
In response to Lawrence Lessig @ 7

What’s surprising is the industry of punditry that try to deny that difference in access or effect.

So this is the other place I see a huge problem, as I know many of us do. While lack of campaign finance regulation brings elections under the influence of powerful forces that way, surely the existence of enormous, and enormously influential, propaganda outfits like FOX News brings money to bear on swaying elections in its own way. Even intelligent people are susceptible to propaganda when it’s all they hear, and in addition to the hard-core right wing propaganda of FOX, you have the softer but still essentially conservative viewpoint of almost all the other networks and stations, so that the average citizen is being persuaded constantly by a heavily-financed effort of conservative talking points.

I’ve never known what can be done about this, but surely it’s just as corrupting an influence as campaign finance. Thoughts?

Lawrence Lessig October 8th, 2011 at 2:45 pm
In response to Margaret @ 20

My core text is Thoreau: There are a thousand hacking at the branches of evil to one striking at the root. If we can get all the energy of the reformers in this world — on both the left and the right — to recognize that their fight is an order of magnitude more difficult BECAUSE of the money, and that the first step has got to be to strike at this root, then I do think there is a chance. Or at least, every reform group has got to agree that the second most important problem is the problem of money in politics: In aggregate, that might be enough support to allow us to make real progress.

Nathan Aschbacher October 8th, 2011 at 2:46 pm

What is public elections funding going to do other than just set a floor on how much an election campaign costs?

I mean you’re just going to get whatever the public funds are + the amount each candidate raises separately. Not only that, it sounds like the perfect sort of “vote yourself a raise” scheme that Congress will openly abuse.

HelenaHandbasket October 8th, 2011 at 2:47 pm

What is the roadmap to public financing of campaigns? And, can we get back to the days where broadcasting ‘in the public interest’ was required; and, could be filled by providing free air time for candidates and discussion of issues?

Lawrence Lessig October 8th, 2011 at 2:48 pm
In response to Jane Hamsher @ 21

It has made me much more optimistic. We need things that break up the routine, just like an alcoholic needs an intervention to force him to recognize the problem he has. Of course, we want those interruptions to be peaceful and sustained, but they have to be interruptions. It would be absolutely INSANE if this next presidential election were allowed to proceed ignoring these issues, or this movement.

Margaret October 8th, 2011 at 2:48 pm

Our side is on the upswing.

That’s my opinion and my hope also.

Eli October 8th, 2011 at 2:48 pm

Welcome, Professor Lessig. I’ve enjoyed your book, what I’ve had time to read of it – I have long agreed with your view that the corruption of money is the fundamental flaw that makes positive reform impossible.

I know I’m not pointing out anything that wasn’t in your book or your NN ’09 presentation, but…

1) How do we get incumbents to vote for any kind of reform that would make it easier to defeat them?

2) What about the other forms of corruption, like lobbyist-sponsored “fact-finding tours” that involve a lot of golf, or the promise of cushy jobs for family members, or for the congressmember themselves after they retire or get voted out?

Lawrence Lessig October 8th, 2011 at 2:49 pm
In response to szielinski @ 23

But the question is what reform would satisfy them. If all OWS produces is to punish Wall Street, then it is a failure. We can punish all we want — today. If the money system remains unchanged, they will reverse whatever we do when we’ve gone back to our life.

pcvcolin October 8th, 2011 at 2:51 pm

I have a question regarding the book. For Lawrence Lessig [ @lessig ] can you provide a distilled, one to three sentence statement in reply to this question of what the needed remedy / remedies (is/are) to the problems described in ‘Republic, Lost?’ I realize that the issues are complex, but if you have described that the root of it is money and campaign finance, and it would seem that you are indicating (from the summary here on the FDL salon page) that money influence everywhere is really at the heart of the problem, what is your solution in a nutshell that I can easily understand?

p.s.: I did see that in an earlier post you suggested: “(1) Public funding of public elections, (2) A limit on contributions at around Buddy Roemer’s number — $100; (3) A Congress with the power to limit (but not ban) independent expenditures, at least within 90 days of an election. We can get (1) without any constitutional change. (2) and (3) will require amendment the constitution.” However, this does not suggest to me something simple that I can do as a person, as an individual, or collectively with others, to act. People right now are tired and fed up and want to channel their frustrations into some kind of constructive action for change. What do you suggest? Please keep it as simple as possible. Thank you.

Lawrence Lessig October 8th, 2011 at 2:51 pm

I fear we are Rome, not sure about France. But we can’t know this until we try the fundamental reform that we need this system to effect.

Margaret October 8th, 2011 at 2:51 pm

Yep. Taking the money out of politics is necessary but it’s going to be a neat trick since it’s the politicians that have to agree to it. We need new politicians or politicians who fear to thwart the people again. So far most of them have been either very dismissive of the 99% movement or have tried to co-opt it’s energy to keep them in power. Thanks for the response.

Lawrence Lessig October 8th, 2011 at 2:52 pm
In response to CTuttle @ 26

I don’t disagree with your claim about what has happened. My claim is about the potential energy within the system. A muscle is being flexed. It will grow in strength especially as it is ignored and denied.

Lawrence Lessig October 8th, 2011 at 2:54 pm

The architecture of successful medial today adds to the problems I’m talking about, and I don’t begin to have a clue about how we solve it. The business model of media — in an increasingly competitive world — is polarization. I don’t know what we can do constitutionally to resist that or change that.

tw3k October 8th, 2011 at 2:54 pm

Greatings Glenn and Larry.

Any thoughts on citizen engagement such as campaigns to divest from egregious players in banking industry?

HelenaHandbasket October 8th, 2011 at 2:55 pm

Our local paper’s headline today is that the NM GOP is being represented by James Bopp Jr. of Indiana, seeking to overturn donation caps. Mr. Bobb filed the initial Citizens United v. FEC lawsuit. How can we keep carpetbaggers out of our state, who don’t have any business being involved in a state where he doesn’t live, pay taxes or can vote in?

I feel my rights are being trampled .

gigi3 October 8th, 2011 at 2:56 pm

I’ve said repeatedly; most of the major problems worldwide can be resolved with a sound monetary system not based on debt-based currency.

Nathan Aschbacher October 8th, 2011 at 2:58 pm

In fact it seems the only way this could may any sense as a system would be if the public funds so vastly overshadowed the private funds that the private funding was an inconsequential portion of all funds. Such that private funds raised, no matter what the disparity between candidates, couldn’t possibly be seen as an advantage.

This means the amounts of public funds would have to be huge to offset current private spending levels, and then be ratcheted up regularly to deal with future private spending levels. Creating both the context and the justification for Congress to abuse this system wildly.

I must be missing something here about how such a system will work.

Lawrence Lessig October 8th, 2011 at 2:58 pm
In response to pcvcolin @ 36

Thanks for the question. Put most simply, the problem isn’t really the presence of money in the system. The problem is that the money comes from a tiny slice of America. So the politicians dancing for that money dance in a way that pleases that tiny slice of America, leaving the rest of us jilted and cynical. Congress is dependent upon “the funders.” “The Funders” are not “the People.”

The solution is to find a way to make “The Funders” “The People.” To that end, I map a different kind of public funding system, one that tries to be responsive to concerns raised about public funding by supporters and opponents alike.

But in the end, I think the really difficult thing is not describing the problem, or even describing the solution. The impossibly difficult task is describing how we bring that solution into effect. I map 3 insane strategies to that end. But I am not yet convinced any of them is enough.

Kirk Murphy October 8th, 2011 at 2:58 pm

Lawrence and Glenn, thank you both for devoting so much of your lives to defending our Constitution – and in so doing, our Republic. And Bev, thank you for making this Salon possible.

This powerful statement

“Democracy on this account seems a show or a rule; power rests elsewhere. . . . the charade is a signal: spend your time elsewhere, because this game is not for real.”

makes me think of AETA – the Animal Enterprise Terrorism Act (as well as the Animal Enterprise Protection Act which preceded it). These two pieces of legislation – written by the Koch-funded ALEC and floated on corporate dollars through our Congress and White House – have effectively criminalized aspects of once legal advocacy in service of non-violent civil disobedience.

Lawrence and Glenn, what implications do you think AETA may have for the Occupy movement? Do either of you have any thoughts about how Occupy and their live media (complete with live interviews of folks who are sometimes not known to the Occupy live media interviewers) can protect themselves from the sort of criminal prosecution we saw when AETA and other Federal criminal statutes were used to put the SHAC organizers in prison?

bmaz October 8th, 2011 at 2:59 pm

Professor, thank you for your time today. While I fully understand the theory of your proposals to open up the Constitution outlined at 22 above, it strikes me that the enforcement mechanism is just as much, if not more, critical than the actual amendment. Can you describe how you envision your changes being enforced?

And how it would not create an immense power shift to whoever controlled the Executive Branch so that they could selectively enforce and thus maintain their grip on power continuously?

Lawrence Lessig October 8th, 2011 at 2:59 pm
In response to tw3k @ 41

Useful and important, but I worry they distract from the more fundamental change we need to be pushing for. Put differently, even if they were successful, we would not have achieved success.

szielinski October 8th, 2011 at 3:01 pm

Right now, I’d say that the political elite in this country are not at all receptive to the OWS movement or to reforming the various institutions in American that have generated our awful political situation. I’m not advocating punishing Wall Street, as satisfying as that might be. My claim is that the movement must grow in size and extent in order to force a fraction of the political elite (soft-liners) to enact the kind of reforms the country needs in the short-term. One of these short- or near-term reforms would need to be the enactment of those constitutional amendments (or, perhaps, the writing of a new constitution) needed to abolish the winner-take all voting system in the country. But that’s only one reform we need. There are others that would address the nature of capital, the rights specific to capital, voting rights, etc.

Often, reform is contrasted with radicalism. I’d wager that what would placate the OWS movement is radical reform. I support the OWS movement for just this reason. The time in which incremental reforms might work has long passed us by. Campaign finance reform would be an incremental reform that only masks a symptom.

Lawrence Lessig October 8th, 2011 at 3:01 pm

Mr. Bopp has made it his life’s work to destroy campaign finance reform. But he would have no success against the kind of public funding proposal I describe. And if we could motivate constitutional reform, he would have no success against that.

pcvcolin October 8th, 2011 at 3:01 pm

Thank you… I should add I may have been editing my question during your reply, and my final component to my question is this, “this does not suggest to me something simple that I can do as a person, as an individual, or collectively with others, to act. People right now are tired and fed up and want to channel their frustrations into some kind of constructive action for change. What do you suggest? Please keep it as simple as possible. Thank you.”

HelenaHandbasket October 8th, 2011 at 3:03 pm

So, if we only had an Affirmative Action policy for contributions- The rich could only supply 1% of the campaign funds?

Lawrence Lessig October 8th, 2011 at 3:04 pm
In response to gigi3 @ 43

There is something to this, though I don’t know the appropriate response. Rajan’s book, Fault Lines, is a fantastic account of both the corruption I’m talking about, and also the natural tendency of democracy to respond irrationally to “create wealth out of nothing” demands from most of us. A different currency system that didn’t permit us to “cheat” would make those changes impossible. But they would also throw the worlds economies into sharp downturns in ways government wouldn’t be able to respond to. So I don’t know. Ron Paul thinks there’s a simple answer here. I’m not yet convinced. But I do agree there’s a problem.

Lawrence Lessig October 8th, 2011 at 3:06 pm

The proposal I advance in the book gives every voter a $50 democracy voucher. Candidates can be the recipients of that democracy voucher if they agree to limit contributions to $100, and take no PAC or party money.

$50 a voter is $6 billion an election cycle. The total amount raised and spent in 2010 is $1.8 billion. So $6 billion is a real number, and it would certainly make it make sense for many to opt into the system.

UncertaintyVicePrincipal October 8th, 2011 at 3:06 pm

Thanks for the reply. I’ve thought about it a lot, and I agree that as things stand it seems as if nothing can be done, but I also firmly believe that in the future, some day at least, we’re going to have understood we simply couldn’t leave the dissemination of “news” and information through the media as a purely capitalist/competitive forum or marketplace.

If it were the government taking control of the vast majority of the media and delivering an orchestrated program of propaganda, that would be widely seen as unacceptable, and for good reason. We essentially allow the same thing to happen now however. Propaganda is really the problem, not whether it’s privately or publicly owned.

I have no fix either, but I’ve long felt that we’re going to get nowhere until one is found.

Lawrence Lessig October 8th, 2011 at 3:08 pm

I agree with the outrage. It may just be that the most effective response is to suffer the prosecution, just as in the Civil Rights movement, civil disobedience (meaning accepting the absurd punishments for behavior that shouldn’t be criminal) was enormously effective.

perris October 8th, 2011 at 3:08 pm

Lessig conclusively demonstrates, Congress is indifferent to the will of the people and to democratic debate — because it has been captured by monied interests to whose interests it exclusively attends — then the people lose the ability to affect what government does in any realm

this is the reason we MUST get thomas off the bench, WE CAN, he is with NO DOUBT in conflict of interest in the citizens united case

we NOW have a momentum we have not had in a LONG time and we have an agenda EVERYONE agrees with, (ecept politicians on the take) and that agenda is CITIZENS UNITED MUST BE REVERSED

we can do this NOW because we have the stage and everyone will CLIMB on board if we make THIS the issue for the stage we now occupy

OCCUPY WALL STREET can make a difference but it really needs a galvanizing message as a spring board, THIS IS THAT MESSAGE;

REVERSE citizens united and we need to get thomas off the bench, IMPEACH

CTuttle October 8th, 2011 at 3:09 pm

Interestingly, my little, Big Isle, has just experienced our first election cycle at the County level, with only Public Financed campaigns, and with no Party Affiliations…! I’m still skeptical since ‘name recognition’ seemed to have played the biggest role…!

Lawrence Lessig October 8th, 2011 at 3:10 pm
In response to bmaz @ 47

Absolutely right. The biggest weakness in our current system in the FEC. I would create an Election Commission to enforce these rules populated by former federal judges (with at least 10 years tenure). This idea — proposed by Professors Ackerman and Ayres — could at least have the potential to have an entity with integrity behind the new rules. The FEC is not that entity now.

Nathan Aschbacher October 8th, 2011 at 3:12 pm

That certainly addresses the magnitudes issue. Though leaving the $100 loophole in place seems a little worrisome. What of the issue of self-dealing? Congress, being the direct beneficiary of this money, has every reason and means to pervert this. Either by constantly voting for increases to line their own pockets or even by tilting requirements to favor incumbents, etc.

pcvcolin October 8th, 2011 at 3:12 pm

Prof. Lessig, in addition to my pending question about what individuals and people who want to become part of a group action could do to actually help achieve the goals that you have proposed here in this FDL discussion, what do you propose doing when eventually, if you get close to any of these goals — whether by popular protest, legislative movement, organized e-advocacy through various modes of communication, or some combination of the above, the government simply decides to shut you down? It has already happened here in California, and I am the author of a petition to the FCC (one of two pending before it) to address this very issue. ( See more on this at http://nblo.gs/nGXaW by @pcvcolin on twitter )

Lawrence Lessig October 8th, 2011 at 3:12 pm
In response to szielinski @ 49

I agree that size — and persistence — matters here, but I don’t agree that campaign finance is “only a symptom.” The whole point of the book is to argue that campaign finance is the root to this evil. That’s not to say that there aren’t other reforms that are also needed — there certainly are. But it is to say that we won’t make any progress on those other reforms so long as powerful entities — like Wall Street — can basically blackmail the system to avoid any real reforms.

bigbrother October 8th, 2011 at 3:14 pm

Hi Professor Lessig
The American Corporate empire has grown under Barack Obama. He said Wall Street broke no laws this week and at the beginning of his presidency he said he was looking forward not back. He bailed them out of their fraudulent securities and watched them throw millions out of their homes.He has made decision after decision favoring the oligarchy. A constitutional law professor that undermines the rule of law and the constitution is in the class of Benedict Arnold. Do you agree if not what has he done on principal that you disagree with?

Lawrence Lessig October 8th, 2011 at 3:15 pm
In response to pcvcolin @ 51

Unfortunately, simple is not a viable remedy. We need to find a way to get citizens to do the sort of stuff we citizens have grown to dislike — showing up at a protest, engaging friends in a debate about politics, working with organizations (like rootstrikers.org) to spread the word, making politicians uncomfortable with the existing system. I wish this were the sort of problem solved with an “send a check for $500 to us” solution. It isn’t.

But if you’re committed, and by simple you mean specific, then pick at least one of the above, and just do it. And then recruit 10 friends to do it with you.

Lawrence Lessig October 8th, 2011 at 3:17 pm
In response to perris @ 57

It would feel good, I get that. But I don’t think it would address the fundamental problem. Again, our democracy was already broken before Citizens United. And it won’t be fixed by a better (on these issues) supreme court — as much as I wish we had one!

JMLagain October 8th, 2011 at 3:18 pm

I know this is outside the scope of your thesis here, (haven’t yet read the book), but what is your take on the non-transparent mechanics of the computerized voting systems which now completely dominate our elections post-HAVA? Do you think the OWS movement will have an impact on public response to future suspicious election results?

Lawrence Lessig October 8th, 2011 at 3:19 pm
In response to CTuttle @ 58

Right, and no one should confuse public elections with perfect elections. The only thing publicly funded elections give you (if structured right) is the ability NOT to believe that it was money that was driving the results. That attitude is the fundamental attitude of disempowerment in a democracy. It is poison — precisely the poison the special interest elite needs.

Nathan Aschbacher October 8th, 2011 at 3:19 pm

I’m also ignoring the enforcement of any such arrangement. I mean regulatory capture is bound to happen here as well. Politicians taking public money, then not abiding by the agreement, and then being neither formally investigated nor prosecuted. Abusing the system just becomes bipartisan consensus, like so many other gross violations of law we endure today by our political class.

It seems like the problem has less to do with the money, and more to do with the fact that the money has someplace to go.

We see this happen with the “super congress” already. Every time there’s authority consolidated someplace, the amounts of money that start pouring in to influence it start growing rapidly.

Consolidating power seems to be like putting a funnel for corruption into our politics. Perhaps diffusing authority should be explored?

tuezday October 8th, 2011 at 3:19 pm

Prof. Lessig, last year you gave a speech at a conference in Orlando and to paraphrase, stated that the patriot act had been sitting in some’s desk just waiting for an excuse to turn in to law and it was naive to think the same could not be said of future repression of our rights online. What undermining of our online rights do you see coming in the future (I realize they are being nibbled at already while no one is really watching), especially with regards to political dissent?

Lawrence Lessig October 8th, 2011 at 3:21 pm

$100 may be dangerous, but I don’t think so, and I do think it has a positive effect. Anyone who has contributed even a small amount to a candidate becomes invested in that candidate. Try it. Give Buddy Roemer something. See how it makes you feel about his at least having a chance to debate. see http://letbuddydebate.org

Lawrence Lessig October 8th, 2011 at 3:22 pm
In response to pcvcolin @ 61

Make my day.

szielinski October 8th, 2011 at 3:22 pm

I still contend that political problem today cuts to the core of our institutions. Campaign finance reform won’t quickly or ever abolish ridiculous anachronisms like the Senate, the Federal system of states, life tenure for Supreme Court Justices, etc. Nor will it quickly or ever abolish the Pentagon and the security-surveillance apparatus as a whole. Campaign finance reform won’t immediately put an end to America’s overseas empire. And it won’t demolish America’s essentially flawed two-party system. Hence my advocacy for radical reform.

Lawrence Lessig October 8th, 2011 at 3:23 pm
In response to bigbrother @ 63

In my book, to the great consternation of many many friends, I am very negative on the President. I don’t get why he has been so completely defeated in this respect. But he has.

gigi3 October 8th, 2011 at 3:23 pm

I’m not coming from a Ron Paul or Austrian point of view. In a nutshell: Debt = Slavery

Please take 57 seconds to watch this clip:

http://www.youtube.com/watch?v=4KvzuDbG-TQ

I’m not hung up on having to have a gold or silver backed system either. You just can’t continue to, as you said, “create wealth out of nothing.”

ThingsComeUndone October 8th, 2011 at 3:23 pm

I fear we are Rome, not sure about France. But we can’t know this until we try the fundamental reform that we need this system to effect.

Rome had the rich in power but it was also accepting of different races, religion’s and if we listen to Cicero’s moaning about Gay Marriage more open on that as well.
France had a very rigid system and had just expelled/killed the Protestants granted they had crop failure’s and were broke after the Sun King’s 70? years of losing wars.
I think we are more like France but will it be a natural crisis crop failure’s, plague etc or a financial crisis like Turkey faced when new World gold from Spain disrupted the Turkish empire’s economy certainly our banks are capable of bringing the system down.

Lawrence Lessig October 8th, 2011 at 3:24 pm
In response to JMLagain @ 66

It may be that there is a vast-vote-counting-fraud in America. I don’t think so (even if there have been specific very suspicious cases). I think the real problem is more fundamental — money in politics.

juliania October 8th, 2011 at 3:24 pm

Thank you for this discussion, FDL and Professor Lessig. My question would be, sometimes, and most recently, large national systems abruptly implode of their own weight. I am thinking specifically of the Soviet Union. Do you have any thoughts that this country may be on the verge of doing just that? I wouldn’t really want us to segue to a Boris Yeltsin, but maybe these discussions and the peaceful occupations will help us avoid that. Do you think it is a possibility?

ThingsComeUndone October 8th, 2011 at 3:24 pm
In response to JMLagain @ 66

Seconded!

Lawrence Lessig October 8th, 2011 at 3:25 pm

Right, and I’m suggesting diffusing enforcement power to a more politically independent body. Abuse of any system is a certainty. But we can balance that certainty, I believe, with some institutional response.

ThingsComeUndone October 8th, 2011 at 3:26 pm

Money in politics buys vote fraud machines from diebold and might be buying high level Dem silence about that issue. Al Gore got on how many corporate boards after losing the election?

szielinski October 8th, 2011 at 3:26 pm

Third!

Nathan Aschbacher October 8th, 2011 at 3:26 pm

The loophole is really the secondary concern in my statement. Congress grossly abusing this system to their own benefit is my primary concern. I appreciate that you’re putting a lot of thought into the problem however.

I wish Buddy Roemer the best, but I’m of the opinion that our structure of representative democracy is designed to protect the government from us, not the other way around. The Senate explicitly so.

Lawrence Lessig October 8th, 2011 at 3:27 pm
In response to tuezday @ 69

So this is outside the scope of the book, but important so here’s a small response: The basic architecture of the Internet resists control. That architecture could be changed. The political will to effect such a change could be provided by an i9/11 like event (I don’t mean the same terrorists, but just a massive criminal event). That political will could then force massive changes into the architecture of the net, benefiting gov’t and weakening privacy.

ThingsComeUndone October 8th, 2011 at 3:27 pm

If we fail to control money in politics the rich will keep making mistakes. Jared Diamond says that when the ruling class is protected from their mistakes societies fail.

pcvcolin October 8th, 2011 at 3:27 pm

Thank you, sir. I will.

Lawrence Lessig October 8th, 2011 at 3:28 pm
In response to szielinski @ 72

It won’t, you’re right. But it will at least make other reform possible. That’s the sequencing point: what reform needs to come first. Fixing the senate, e.g., just changes the price at which control is bought. It doesn’t change the ability to buy control.

Kirk Murphy October 8th, 2011 at 3:30 pm

Professor, thank you for addressing the question – I appreciate your response and your sentiment. And I do agree about making long-term use of absurdly disproportionate enforcement to advance social change.

In the short term, however, OWS and the Occupy sites across the country are playing a vital role in encouraging public assemblies – and some of the public assemblies lead to marches with the potential to block business at establishments including the fast food places covered as “animal enterprises” under AETA’s draconian reach.

On occasion the OWS live media team have had on speakers who via the web feed (as opposed to direct public speech) have encouraged property damage. Even though the speakers were apparently unknown to their media team hosts – and hence the media team was in no position to know the precise views their interviewees expressed – I’m still concerned in the short term.

My concern is that simply advocating for public assemblies which gather in a manner impeding fast food places’ profit and/or merely interviewing unknown guests who advocate non-violent property destruction will give Federal law enforcement and the corporations it serves the pretext for shutting down Occupy’s increasingly effective web and live feed presence.

Should you or Glenzilla have any thoughts about how the Occupy media team could minimize this risk, that would be great!

szielinski October 8th, 2011 at 3:30 pm
In response to juliania @ 77

This — system disintegration — is a looming possibility. If it were to happen, the trick for democratizing movements would be to force the writers of the new constitution to write a far better one (one which is more democratic and which better protects the rights and capabilities of the common folk) than the constitution we now have.

Lawrence Lessig October 8th, 2011 at 3:31 pm
In response to gigi3 @ 74

agreed — but how can I take a 57 second break now! The questions are piling on…

dckinder October 8th, 2011 at 3:31 pm

The corrupting influence of money is true enough so far as it goes.

But there is a deeper problem. The nation state itself as a form of political and social organization is becoming obsolete as the 21st Century gives rise to transnational, networked, or purely localized organizations instead.

The nation state’s corruption we observe is the consequence of its loss of purpose.

bigbrother October 8th, 2011 at 3:32 pm

http://www.pbs.org/wgbh/pages/frontline/shows/wallstreet/weill/demise.html Is the history the the demise of the Glass Steagal Act. Carefully orchestrated with deadly results. Why did your friend Barak Obama decide not to prosecute these crimes? As a constitutional law professor he has ignored the US Constitution and the rule of law repeatedly standing for the Bankster interest and the MIC.
Any commentary?

szielinski October 8th, 2011 at 3:32 pm

But it [campaign finance reform] will at least make other reform possible.

But the reforms I mentioned need to be adopted now.

Lawrence Lessig October 8th, 2011 at 3:33 pm
In response to juliania @ 77

so in my heart of hearts, I am a small c conservative. I don’t want a radical fundamental change. I want a relatively small change — in the way we fund elections — that might make the billion other changes that we need to happen through a democratic process.

but I agree, there is reason to be afraid just now. the great salve to the masses has always been improving times. times aren’t improving.

CTuttle October 8th, 2011 at 3:33 pm

Ohio ’04 was stolen completely by Diebold and the RNC/GWB/Ohio’s official SoS sites being served by the same Chattanooga server…! Diebold had to replace ‘batteries’ in all their machines shortly after the election…! 8-(

Interesting that Turd Blossom’s IT Guru met his demise shortly after he was subpoenaed to testify to Congress about that Ohio election…!

ThingsComeUndone October 8th, 2011 at 3:33 pm

“Madness is to think of too many things in succession too fast, or of one thing too exclusively” Voltaire this is genius tat borders on madness in my view.

Our ruling class however is best described by

Albert Einstein Quotes

Insanity: doing the same thing over and over again and expecting different results.
Albert Einstein

gigi3 October 8th, 2011 at 3:33 pm

Later, but please take the time.

Lawrence Lessig October 8th, 2011 at 3:33 pm

Maybe. I doubt it.

JMLagain October 8th, 2011 at 3:34 pm

I am not contending that it is vast ( who knows?) although, as you acknowledge, certain critical votes have been highly suspicious and the non-transparent nature of the system makes it highly vulnerable to untraceable election manipulation, yet there seems to be a collective decision by the powers that be, of all stripes, to not only turn a blind eye, but to openly promote the continuation and institution of these systems which by their very nature confound the will of the voters.

Lawrence Lessig October 8th, 2011 at 3:35 pm

Just one of the many brilliant things uttered by Jared.

Nathan Aschbacher October 8th, 2011 at 3:35 pm

Understood.

I walk through ideas like these looking for inevitabilities and pitfalls specifically to try to improve them, not simply to try to dump on them.

With ever increasing frequency I wind up at the end of the thought experiment asking myself, “Why do we let our legislators also be our deciders?” It just seems crazy to me.

You’re right that any system that bestows authority will be abused to the advantage of those who wield that authority at any given time. If you add sufficient randomness to the system then it becomes increasingly difficult to abuse, but you also lose some of the benefits of institutional stability. There’s a balance to be struck in there somewhere I suspect.

Again, I sincerely appreciate your tackling these problems theoretically and then formulating them into plausible prototypes.

Lawrence Lessig October 8th, 2011 at 3:36 pm

At this point, all I can do is volunteer to help and recruit help.

juliania October 8th, 2011 at 3:36 pm
In response to szielinski @ 88

That’s a tall order. But fixing that corporate personhood thingie would be a good start.

Lawrence Lessig October 8th, 2011 at 3:38 pm
In response to dckinder @ 90

How is its purpose lost? It’s purpose is the common good for its people. If that entails joining with transnational entities, then why not. I think its purpose could be achieved if it weren’t systematically blocked from seeing it.

eCAHNomics October 8th, 2011 at 3:38 pm

Very late to the discussion & haven’t read the comments, so ignore any of my Qs that are repetitive.

1. How is your soln diff fr what Zinn’s would be: only direct action counts. Voting is like a pacifier, infantilizing the public into thinking they have a choice betw 2 identical parties.

2. What is the point of revising the constitution when the 1%ers don’t pay any attention to words on paper anyhow. Laws & rules are ONLY for the 99%ers.

3. And how would you get the wholly owned congress to do campaign reform anyhow.

Lawrence Lessig October 8th, 2011 at 3:38 pm
In response to bigbrother @ 91

Again, if my book does one thing, it does not defend Obama.

Kirk Murphy October 8th, 2011 at 3:38 pm

Thank you, Professor – that’s the best news I’ve had this week!

Lawrence Lessig October 8th, 2011 at 3:39 pm
In response to szielinski @ 92

Maybe, but the question remains: what change is necessary to make those changes possible?

szielinski October 8th, 2011 at 3:40 pm
In response to juliania @ 102

Constitutions were written throughout the former Soviet empire. Constitutional politics is not the domain belonging only to dead white males!

Lawrence Lessig October 8th, 2011 at 3:40 pm

you give them too much credit. do they really think things will change, or is that a description of us?

Lawrence Lessig October 8th, 2011 at 3:40 pm
In response to JMLagain @ 98

I agree that there is an unwillingness to investigate fully the charges, and they should be.

Nathan Aschbacher October 8th, 2011 at 3:42 pm

We also frequently run up against the Constitutional Amendment issue. The ultimately necessary structural changes that we need, or should at least be able to leverage in the modern era, for our government typically require the consent of those already in power to move them forward. For obvious reasons that’s exceedingly unlikely.

So we’re stuck on a Convention. We have some means to call one ourselves, and in some cases we can do this by popular vote. I used to be a huge proponent of this until I read something Glenn Greenwald wrote regarding what that process would look like in practice with the modern media apparatus, the Sarah Palin’s and Michael Moore’s of the world, etc.

I’m torn between seeing the circus as a necessary evil to what must eventually happen if we are to have any hope of salvaging this nation and seeing the circus as ensuring that the status quo will only be given a forum to become significantly more odious.

bigbrother October 8th, 2011 at 3:42 pm

Governance is coopted at point of centralization where power is federal state and local. We see what does not work for the 99% but what can work is yet to be formed. I believe we reap more benefit from within out lives than from politics. So maybe minimize the body politic. The no label is an excellent strategy. Buy local grow your own boycott the bad boys. And so forth.

Lawrence Lessig October 8th, 2011 at 3:42 pm
In response to juliania @ 102

How? I just don’t get it. If we had an amendment to the constitution tomorrow that said “corporations are not persons,” that would change nothing. It would not change Citizens United (which, contrary to the standard account, did not depend AT ALL upon the claim “corporations are persons”). It would not change the influence that owners of those corporations have in the political system.

bigbrother October 8th, 2011 at 3:44 pm
In response to bigbrother @ 112

Also making smaller economic partners like the Township model will take some air out of the corporate monster.

Lawrence Lessig October 8th, 2011 at 3:45 pm
In response to eCAHNomics @ 104

1. How is your soln diff fr what Zinn’s would be: only direct action counts. Voting is like a pacifier, infantilizing the public into thinking they have a choice betw 2 identical parties.

Zinn is likely right. I want to try something before that.

2. What is the point of revising the constitution when the 1%ers don’t pay any attention to words on paper anyhow. Laws & rules are ONLY for the 99%ers.

Rules stated clearly will not be ignored.

3. And how would you get the wholly owned congress to do campaign reform anyhow.

That’s the impossibly difficult problem I talk about in the last section: I offer 3 insane ideas, on the theory that only insanity will get us something. The most insane: a constitutional convention.

Sanctimonious Purist October 8th, 2011 at 3:46 pm

I don’t have time to read the thread, but I wanted to make just two points. I apologize if anyone has already stated them or if Lessig has them in his book.

First: Many people have advocated trying to amend the Constitution to overturn Citizens United. That’s a tremendously naive and stupid strategy that is doomed to failure. It also unnecessarily and improperly concedes the point that the decision was dead wrong on constitutional principles substantively, with Thomas’s involvement also constituting a taint, and with it being procedurally a total overreach and beyond the scope of the review that SCOTUS had initially granted. And, even if you succeeded in amending the Constitution in this regard, all you do is preserve the same insane money treadmill that we already have, albeit on a somewhat less skewed playing field.

Second: One truly critical way in which money politics COULD at least theoretically be tamed is by amending the telecommunications act to require commercial TV and radio stations, as a condition of their licenses, to give gobs of free and reduced rate advertising to political candidates. The airwaves belong to the public, not the media empires. I think the current telecomms act (of 1996, another Clinton monstrosity) is up for renewal in a couple of years. Not doable? Way more doable than a constitutional amendment or any other BS proposed remedy that I’ve seen bandied about. And it puts the focus where it really needs to be: on the media empires. And it gets to the root of the problem. As in “radical.”

Lawrence Lessig October 8th, 2011 at 3:46 pm
In response to szielinski @ 108

Right, and the biggest mistake people make is to ignore the legal and cultural context within which a constitution functions. Constitutions didn’t constrain gov’t in the Soviet Union because the legal culture didn’t expect they would or should. But a rule in our constitutional tradition — e.g., no contribution more than the equivalent of $100 — would not be ignored, without radically changing our tradition.

juliania October 8th, 2011 at 3:47 pm

I apologize for not having read your book, but would that small change actually take the money out of politics? We used to have much less money in the political campaigns, but there was still money swashing about, and now it seems to me with the lobbyists and all, the revolving door, and the huge national treasuries corporations have for themselves, it still would be a huge problem.

I can see that would level the playing field and we could get some fairminded representatives in, maybe. Yet, the economic system mightn’t wait as long as we would need to right the ship, perhaps? We really did try to have this happen in 2008 and I’m sorry to say we’ve lost a lot of time having the problem escalate.

I remember Seymour Hersch saying to Amy Goodman back in the Bush years that maybe all that could be done (he was discussing the Iraq war and such) was just to step aside and watch it all collapse. I think we are doing important things towards a soft landing – at least our young people are – and I hope the Powers that Be will allow their creativity to continue. If they don’t I’m really afraid of the consequences.

bigbrother October 8th, 2011 at 3:47 pm

By hook or by crook is how they operate. The intent is to massively shift large assests to themselves. But their attack using austerity and deficit reduction to take away the social safety net a society has to have is pretty nasty. How do we defend that?

eCAHNomics October 8th, 2011 at 3:48 pm

LOL. Thanks for your honesty.

My latest mantra is that it takes a gargantuan effort for a long period of time to accomplish baby steps. Labor strikes, for example, started in the 1820s, and it took a century bef labor made much progress.

Lawrence Lessig October 8th, 2011 at 3:49 pm

Skepticism about a convention is a fair and sensible response to the proposal of a convention. Everything depends upon how it is constituted. I propose in my book that we begin with a series of mock conventions, run as deliberative polls (randomly selecting 300; giving them a framework of information; giving them the opportunity to deliberate). This kind of citizen-jury convention avoids the circus because the crazies (or corporate types) aren’t guaranteed a seat. And I predict the product of these mock conventions would be something beautiful to behold. But again, it is fair that I bear the burden of proof on this.

Lawrence Lessig October 8th, 2011 at 3:50 pm
In response to bigbrother @ 114

Libertarians have long argued that smaller government reduces the incentive to rent-seek. But the challenge is how you achieve smaller gov’t, when big gov’t benefits the fundraising Congress.

CTuttle October 8th, 2011 at 3:50 pm

The most insane: a constitutional convention.

*heh* Why not…? Hawai’i has held one already, since Statehood, and subsequently, we have the most progressive State Constitution in the Union…! ;-)

tuezday October 8th, 2011 at 3:51 pm

Thanks for your response. I realize you are not currently focused on tech, but couldn’t help but ask the question ;)

Lawrence Lessig October 8th, 2011 at 3:51 pm

I fear the Court would not permit such a mandate.

JMLagain October 8th, 2011 at 3:51 pm

There lies the rub. Who will investigate? Especially when no lawyers are willing to raise the legal issue of non-transparent elections.

I apologize for the testy response. It’s an issue my organization has been battling for a number of years.

bigbrother October 8th, 2011 at 3:51 pm

There will be many willing to participate. Maybe now is a good time to start that ball rolling? Maybe a group like the National Lawyers Guild could sponsor it.

Kirk Murphy October 8th, 2011 at 3:52 pm

Professor, the prospect of a Constitutional Convention in the era of corporate media and Fox “news” kind of scares me. After reading the perennial surveys appearing to show Americans don’t understand – much less agree with – fundamental Constitutional protections, I worry that a 21st Century CC would accelerate destruction of our remaining Constitutional freedoms.

I’d like to be hear how I’m wrong about this – I hope I am!

Do you have any thoughts about what would prevent such an outcome from a 21st Century CC?

[oops - slow typer here - just saw your 121. ]

Mauimom October 8th, 2011 at 3:52 pm

I am very negative on the President. I don’t get why he has been so completely defeated in this respect. But he has.

“Defeated” suggests that he tried to do the right thing but wasn’t successful. I think most of us here believe [and I know Glenn does] that Obama has never attempted to curb the power of Wall Street and corporations. These are his friends, his idols. He longs to be one of them.

BevW October 8th, 2011 at 3:52 pm

As we come to the end of this Book Salon,

Lawrence, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book and corruption in government.

Glenn, Thank you very much for Hosting a great Book Salon.

Everyone, if you would like more information:

Lawrence’s website, blog and book

Glenn’s website – Salon.com

Glenn’s Book Salon will be October 29th – With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful

Thanks all, have a great evening.

Lawrence Lessig October 8th, 2011 at 3:52 pm
In response to juliania @ 118

This “small change” would radically change the economy of lobbying. That’s one reason they would fight it like hell, but it would certainly make that profession much less valuable, which means that profession wouldn’t have that much to offer Congresmen, meaning Congressmen could more easily afford to be independent.

Lawrence Lessig October 8th, 2011 at 3:53 pm
In response to bigbrother @ 119

we continue the fight.

juliania October 8th, 2011 at 3:53 pm
In response to szielinski @ 108

It has nothing to do with ‘dead white males’ but with the value of the document. My comment meant that I have huge respect for the one we’ve got, would be of Professor Lessig’s persuasion that incremental change could accomplish significant improvement. Such as treating corporations as nonpersons and all that would entail.

Lawrence Lessig October 8th, 2011 at 3:54 pm

Same reply as before: Let’s try a series of mock conventions. If I’m right, you won’t be afraid.

Mauimom October 8th, 2011 at 3:54 pm

I too am scared as hell of a Constitutional Convention!!

Lawrence Lessig October 8th, 2011 at 3:54 pm
In response to Mauimom @ 129

I am afraid I agree. I have come to learn they had ZERO strategy to “take up the fight” to “change the way Washington worked.”

ffein October 8th, 2011 at 3:55 pm

Second: One truly critical way in which money politics COULD at least theoretically be tamed is by amending the telecommunications act to require commercial TV and radio stations, as a condition of their licenses, to give gobs of free and reduced rate advertising to political candidates.

That idea seems like a really good one to me and possible.

BevW October 8th, 2011 at 3:55 pm

Sunday: Jeremi Suri / Liberty’s Surest Guardian: American Nation-Building from the Founders to Obama; Hosted by Brian Balogh

If you want to contact the FDL Book Salon – FiredoglakeBookSalon@gmail.com

Just quick reminder:
Membership drive! Are you an FDL member? If not, please join and help keep FDL delivering kick ass activism and independent journalism. You can join HERE.

Lawrence Lessig October 8th, 2011 at 3:56 pm
In response to BevW @ 130

Yes, thanks to FDL and thank you Glenn for the review and the hosting. And thanks to everyone here for the workout. My kids are really keen to play, and I’m going to try to grab a couple hours more to the day with them. Thank you for the attention to this issue and I hope you’ll give the book a look. ]

Kirk Murphy October 8th, 2011 at 3:56 pm
In response to BevW @ 130

Bev, Glenzilla, and Professor Lessig – thank you all for this Salon and for taking your time to be here today. You learned me.

maa8722 October 8th, 2011 at 3:58 pm

“. . .Opening up the Constitution to reform. . .” is a bit more involved than opening a can of peas regardless of the political climate. I’m afraid I’m quite a skeptic. Still Lessig’s heart is in the right place, which is worth something.

The problem is that monetary corruption and exploitation is so baked in the cake, and often so subtle, that there is little that proactive human intervention can do to steer things the other way. If it’s the Constitution at fault, well enough, but be prepared for a Constitutional Convention to upend and replace it entirely rather than some bandaid amendment or two. Ain’t gonna happen either way, the stakeholders with the goods will make sure of that, and they have the means.

Movers of change might still appear, but not by our own hand. They would be unexpected and independent from deliberate intervention on our part. I’m thinking of a cataclysmic act of nature, a pandemic, an accidental war or anything else off the wall which flummoxes the best and brightest so quickly that they’re immobilized. That certainly isn’t any scenario to hope for or to wait for to fix things.

If it’s any consolation corruption seems to be incompetent as well, and is likely to self-destruct from time to time on its own.

juliania October 8th, 2011 at 3:58 pm

Thank you for being so patient with us Professor Lessig. I know time is up but just a small point, that lobbyists offer jobs to politicians, and that is often, sadly, why the politicians run in the first place. But again, thank you very much.

Mauimom October 8th, 2011 at 3:59 pm

Boy, I’d sure love to have a subsequent conversation on THAT subject!!

Thank you so much for stopping by. We appreciate your work. And Glenn, thank you as well.

[As always, thanks Bev!!]

CTuttle October 8th, 2011 at 3:59 pm

Mahalo Nui Loa, Lawrence and Glenn…!

Kirk Murphy October 8th, 2011 at 4:01 pm

Apologies for my slow-typing-delayed redundant query: the mock conventions sound good (and I’d love for your plan to be right!)

JMLagain October 8th, 2011 at 4:02 pm

Thank you.

bigbrother October 8th, 2011 at 4:14 pm

Onward to the convention!

Mommybrain October 8th, 2011 at 4:37 pm

I’m old enough to remember when this was true. People discussed politics and ideas without hating each other, joined grops to effect change. I’m hopeful we can make it true again, but it will happen in spite of the media and because of the Internet, and on a local level.

I ebought three of your books from Powells this morning. I’m looking forward to reading them. Thanks! It’s nice to feel enthusiastic again, after all this time.

defogger October 8th, 2011 at 4:44 pm

IHi Mr. Lessing.Concerning step !,a public option,I think we should media provide free time for public debates in exchange for using our airwaves.Considering the money these media will be making from private financing,I don’t think they want the fight if we went after them on ownership or anti-trust grounds.Please comment.

powwow October 8th, 2011 at 6:25 pm

It was a pleasure reading your incisive responses, Professor Lessig.

But the key is to recognize that we need no constitutional change at all to fight for the first essential step: public funding of public elections.

That’s very good news. I hadn’t fully taken that fact in, despite sharing your conviction about the necessity of campaign-finance reform as an essential step in reclaiming our Congress. Eli here at FDL, I know, has been making the case for such reforms regularly and compellingly, but without a specific plan of action – no doubt, as you note, because of the great difficulty in finding feasible avenues of attack.

My own present sense of a potentially-doable ‘way out’ of the corrupt status quo is to try to reform federal elections through a Congressional insider/outsider partnership, if only with an immediate objective of greater publicity for the cause. Which, given your present position, immediately brings to mind Harvard Law Professor Elizabeth Warren (or perhaps one of the other Boston-based candidates for U.S. Senate) – who, I hope, has already had, or will soon have, the wisdom to consult with you to learn from your long experience in this area.

The still-unanswered question about Warren (though I watched the first Democratic debate among the six candidates the other night), is whether or not she, like you, can shed any personal loyalty to the President and to Party leadership (never mind to the Funders), in order to publicly act as an independent thinker in the Senate, if elected. As I see it, a great deal of progress toward taking down the Two-Party rigging in Congress, and in publicly advancing needed change, would be possible with just one such popularly-supported, widely-recognized, outspoken Senator.

What too few seem to recognize, though, is that one such Senator is not likely to be alone anymore. There is obviously great, if mostly publicly-unvoiced, distress among incumbent (particularly newer) Senators about the present state of their institution (never mind their public approval levels), as now operated under tight, top-down Party control.

And the Democratic Caucus majority under Reid just sent a shot across the bow of those unhappy Senators Thursday night that the leadership of both Parties may soon come to regret. At least I know how I’d react to such a heavy-handed effort by a skulking majority (afraid even to debate their stunt, taken before a long weekend to little notice) to shut me up and keep my voice from being heard and my will from being heeded on the floor of the Senate, if I was a publicly-elected member of that body.

There are, after all, it appears, some simple ways to challenge and lift the silence that generally blankets the Senate Chamber on a daily basis now, as a means of beginning to reclaim control of floor proceedings from the hands of the backroom Party operators. And there just might be a Senator finally ready and willing to utilize those methods of returning the Senate (that is, its responsibilities and its workload, as well as its power) to individual Senators – even if only to force the majority to start taking seriously the concerns of the minority (and, I would hope, of at least some in the majority), about being prevented from doing basic legislating on measures brought before the Senate, as they were sent there to do.

As things now stand, as highlighted in my diary yesterday describing what happened Thursday, today’s Senators seem to quake at the thought of merely casting votes in public, never mind debating in public. (Though Mitch McConnell candidly pointed out Thursday that when he was the whip during a Republican Senate majority, he heard the same “whining” from his Senators about the need to simply cast a vote on certain issues. But unlike Reid, who readily indulges what are essentially “secret holds” on amendments objected to by one or more Senators in his Caucus, McConnell responded to the members of his former majority Caucus that those votes were the price of being in the Senate, where the minority can still be heard. Consolidated power continues to consolidate power…) Antonin Scalia, in interesting testimony to the Senate Judiciary Committee Wednesday, probably put his finger on it more than he knows, when he asked Senator Blumenthal (who was pressing Scalia & Breyer to begin televising Supreme Court proceedings) whether the Senate (and House) as an institution had been improved, or at least left undamaged, by the introduction of television coverage of its proceedings… (Scalia, surprisingly, seemed quite informed about and interested in the different styles and systems of government in many other countries, which he touched on as he lauded our own design of separated powers to an unaccountable, and therefore indifferent, Committee – Mike Lee impressively excepted. Scalia also used the old, apt phrase ‘nothing but a parchment guarantee‘ to describe why the design of the separation of powers is essential in making those parchment-recorded pledges more than words. After all, Scalia noted, the USSR had a “Bill of Rights” that left the U.S. Bill of Rights in the dust – except, of course, that there was no intent in the USSR, and thus no government structure designed, to actually make those words a reality.)

Where is the Senate going, if even less than the minimal business – little more than final, foregone-conclusion vote casting – that’s now conducted in the public Senate Chamber, will be conducted there in future? Are we going to lose all deliberative debate in the public Senate, as we’ve already lost it in the House (some minor reforms this year aside)? That’s the ominous, unhealthy situation that’s urgently facing every incumbent in, and every candidate for, the U.S. Senate.

In sum, as indicated here, I think that the present state of affairs gives outsiders an opening to find and work with some (even if only a few) frustrated insiders, and/or challengers, toward a common goal that would directly and publicly confront the corruptions of centralized Party/Funder control of Congress. At a minimum, I think that such an approach should be kept in mind as one potential avenue of attack as events unfold, because many insiders aren’t exactly happy campers themselves these days.

P.S. To Glenn: Nice to see you here, and good luck with your book tour – on a very timely subject; you should’ve heard Stephen Breyer Wednesday, describing his glorious, abstract view of the Supreme Court as the “Boundary Patrol” of the separated powers – apparently oblivious to the fact that his Court has let the D.C. Circuit unilaterally dismantle Boumediene (on which, by careful design of those to whom he spoke, no SCOTUS-worthy “circuit split” is possible), and that federal judges as a whole continue, in the face of the most egregious federal abuses, to bow down before The National Security, “boundaries” be damned. [Conveyed here because I'm one of the frozen-out, thanks to salon.com's recent "improvements," and will probably be in permanent lurker mode at your place in future.]

Sanctimonious Purist October 8th, 2011 at 6:48 pm
In response to powwow @ 150

And to Lawrence Lessig @22. Why, oh why, should the public pay huge sums of money to politicians to fund their campaigns, when so much of it goes right into expensive TV and radio ads on the public airwaves? Just another subsidy to a huge empire, just like Obamacare, which is a total bailout of the insurance cartel.

As I argued @116, it’s long past time to make the media leeches pay something for their essentially free use of the public’s airwaves, and requiring them to provide free or at least reduced-rate ad time on their stations is a much better solution than the Rube Goldberg construct of taking huge sums of money from the public to give to the politicians who in turn will give it to the TV and radio stations.

powwow October 8th, 2011 at 7:15 pm

I absolutely agree with you, S.P., about the insanity of funneling public money into the maws of the corporate-profit-serving, public-service-spurning media, for misleading and uninformative 30-second campaign commercials, and all the rest of the present over-priced campaign infrastructure.

It sounded, though, like Professor Lessig thinks that there are Constitutional hurdles to the proposal(s) in your Second point @ 116 above. Assuming that there wouldn’t be such hurdles, I’d enthusiastically embrace some such approach as you suggest, to limit costs (and, if possible, the duration) of campaigns, in tandem with a new public financing system. But if there are likely to be Constitutional problems with such limitations or cost-restrictions, that seems to be an area where some creative thinking is needed to try to solve the problem short of a Constitutional amendment, if possible. I certainly haven’t done any such creative thinking about this, but perhaps you, or Professor Lessig, or someone else already has. It sounds like some strategy sessions to get into the weeds and to search for any workable solutions to the dilemma might be in order.

powwow October 9th, 2011 at 8:45 pm
In response to powwow @ 152

A while back I made note of a blog post by First Amendment scholar and blogger Eugene Volokh, that links to a new article of his on the subject of press freedoms (the article has since been accepted for publication in the University of Pennsylvania Law Review, Vol. 160, 2011). His paper seems like an excellent general overview of freedom of the press, as well as a valuable resource for anyone trying to stay clear of First Amendment tripwires while reforming the federal campaign-financing system:

“The Freedom … of the Press,” from 1791 to 1868 to Now — Freedom for the Press as an Industry, or the Press as a Technology?

A same-day, follow-up volokh.com post by Eugene – like the first – includes comments that may add some helpful input for those interested.

I assume that Eugene himself would be happy to consult with, and be an excellent resource for, people trying to avoid First Amendment pitfalls while working to reform federal campaign-finance law for congressional and presidential campaigns.

Here’s how Eugene put his new article into context, in response to a commenter:

Does this article have a different thesis than Edward Lee’s article, “Freedom of the Press 2.0,” which seems to make the same point?

Eugene Volokh says: Lee’s article and mine do come to the same bottom line about the history, at least as to the Framing era, which is also the same bottom line reached by Chief Justice Burger in his First Nat’l Bank of Boston v. Bellotti concurrence, as well as by others. The difference is in the amount and nature of the evidence the different articles and opinions collect; I think that my article is the first to extensively canvass the earlier caselaw.

And here’s the abstract of the article:

Both Justices and scholars have long debated whether the “freedom…of the press” was historically understood as securing special constitutional rights for the institutional press (newspapers, magazines, and broadcasters). This issue comes up in many fields: campaign finance law, libel law, the news gatherer’s privilege, access to government facilities for news gathering purposes, and more. Most recently, last year’s Citizens United v. FEC decision split 5-4 on this very question, and not just in relation to corporate speech rights.

This article discusses what the “freedom of the press” has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the “freedom…of the press” has long been understood as meaning freedom for all who used the printing press as technology – and, by extension, mass communication technology more broadly – and has generally not been limited to those who belonged to the institutional press as an industry.

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