Lawrence Lessig: How to Get Our Democracy Back
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The solution is not to restrict speech - the solution is to get politics out of so many questions by getting the government out of those issues.
Once upon a time doctors did not feel the need to lobby the government ... because the government did not feel the need to regulate the prices and conditions under which doctors did their work.
Once upon a time target shooters did not feel the need to lobby the government ... because government did not feel the need to regulate every aspect of the hobby of shooting.
Lessig is way off base here. He's a big government statist, but he doesn't want folks who disagree with him to have the power to influence the government.
Lessig isn't talking about speech, but money. Money paid directly to campaigns. Money paid to congressmen and their staff as soon as they leave congress, providing an incentive to support those interests that are most likely to hire them afterwards. This is not an issue of free speech; this is an issue of buying laws. Whether you believe in a large or a small government, if established interests can buy laws, they can control congress, and those laws that they buy aren't going to do do anything about making the government that they've paid for smaller and less effective.
How are you going to reduce the size of the government without getting rid of the influence of those who benefit directly from government largesse, or from government regulations increasing the cost of mounting effective competition?
Can someone lay down some information about just how money equates speech. Its used so often by now that its meaning is lost, merely a talking point.
Perhaps an analogy will help. You have a right to travel freely. Imagine Congress passes a law banning the use of money to travel between the states. Money is not travel; yet, the law banning the use of money to travel certainly makes it difficult for you to exercise your travel rights.
Now substitute travel with abortion (for abortion rights supporters). Are abortion rights curtailed by this hypothetical law? Substitute travel with the purchase of firearms (for the NRA members out there). Is the right to bear arms infringed?
My examples are admittedly simplistic; yet, the point is that there can be a logical connection between the use of money and the exercise of a right -- including the right to free speech. The extent to which a restriction on the use of money infringes a right, and whether such an infringement is (a) allowed by the Constitution (b) wise as a matter of policy, is open to debate between reasonable people. However, simply stating that "Money IS speech" or "Money ISN'T speech" doesn't advance the conversation much, as your question rightly suggests.
How do the wealthy vote with their money? They are not buying votes, they are merely trying to influence other voters -- hence it's a free speech issue.
Should an unemployed person have more influence on the government than an employed person? They have more time go and talk up their candidate, can an employed person pay to have people hired to spread their message?
Should a celebrity have more influence over our electoral process because their statements get covered in the press than a successful businessman who isn't well known but works hard to earn money?
This is a band aid solution and does not address they systemic problems.
1. Too much is controlled at the federal level. 2. The government has significantly overreached in its authority.
Some people will always have an easier time of being heard than others. This is just about making sure that people can't directly buy their way to an easier time of being heard, buy buying off people in the government directly. They will instead have to be heard in a public forum, where public debate can occur.
1. Too much is controlled at the federal level. 2. The government has significantly overreached in its authority.
So what's your solution? When was the last time a president or congress made the government smaller? Is it possible for this to happen when monied interests can buy the ear of a congressman and get a great return on their investment because the government is so large and powerful?
To repeat myself from the other thread (http://news.ycombinator.com/item?id=1102381):
The natural counterforce to corrupting influences, all of them rather than just campaign finance, is robust citizen accountability. Clearly this accountability has left something to be desired to date. I would argue this has largely to do with rational ignorance (http://en.wikipedia.org/wiki/Rational_ignorance) on behalf of voters, that they, having so much to do, aren't willing to wade through the maze of political discourse in order to really know who is worth voting for.
But what if it was dead-simple to know where your rep stood, on every issue, not just the obvious ones, and on every level, not just congress?
I'd argue that you could convert a substantial number who currently don't vote, or else default to simple heuristics in deciding who to vote for: e.g. party or incumbency.
To that end, I've started a site: http://votereports.org which aims to be something like the github of political accountability. A simple, decentralized group of folks generating, exchanging and refining politician report cards based on objective criteria such as votes.
The project is just 2 months old, and there's plenty to do, but it should be ready well before November.
For better governance, I'd stake my bet on this before I would on a constitutional amendment or change of heart for politicians. After all:
> "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." - Thomas Jefferson
Really, can we expect to do very much better, in a world where we collect, analyze, and share more data on baseball than on our own government? (http://radar.oreilly.com/2009/12/government-20-five-predicti...)
Why can't people buy their way to be being hear, if I own a newspaper can I write editorials about the candidates and issues? If so, why do we only allow the extremely wealthy to do that? You're disenfranchising people who have some money, but not enough to own media from being able to be heard. How is buying advertising not a public forum?
Do you have problems with PACs?
If we can't trust our politicians to make small changes to reduce their power, how the hell can you trust them to make fundamental changes to the system?
The whole thing about money being speech is not because money actually is speech. The issue is that putting restrictions on how people spend their money can unconstitutionally limit their freedom of speech, or of the press. For instance, if you say that they can speak all they want, but can't spend more than $10 on printing costs, then you've limited their freedom of the press. So, the court can strike down laws about spending money in elections if it unduly restricts people's freedom of speech and of the press.
That doesn't mean that all money is speech. Money is trade, commerce; and the Constitution explicitly allows Congress to pass laws relating to interstate commerce (which the court has since broadened to pretty much all commerce or economic activity, even within a single state, as it can affect interstate prices, which I think is somewhat dubious, but that's the precedent we've got).
So, it's the tension between these two issues is where we have the debate. Money isn't speech, but because money can be used to buy almost anything, including a forum for your speech, it's hard to block money without also blocking speech.
I think that we can do considerably better than what we are doing, however. Paying money directly to a candidate or campaign goes beyond simple speech; that could be construed as bribery. With appropriate limits on campaign contributions, you can reduce the disparity, and make it so that everyone (or almost everyone) can afford the same impact on the campaign, though I still find it a little bit dubious.
But beyond campaign contributions, it's hard to determine where to draw the line. It's very easy to write laws which do unjustly forbid certain kinds of political speech. It's also very easy to turn from a democracy into a plutocracy by simply allowing money to buy everything that actually matters in government. I don't know what the right solution is, but I suspect that reducing the financial incentives for congressional staffers and congressmen to act in the interests of those with money will help to get changes in the government that the public actually wants.
I believe a person or a corporation should be able to spend their money in anyway they see fit and advertise anything they want to.
I've stated before in other comments that they way to remove corruption is to remove the incentive for corruption -- reduce the amount of money controlled by congress and the scope of it's control (to prevent regulatory capture). The easiest way to do this is to support action at the state level and only at the federal level for truly national/interstate things. For instance, federal pollution controls only apply to pollution that crosses state lines. This way lobbying is less effective since the amount of effort vs payoff is reduced.
We also need to stop trying ram through legislation whenever a given party is in power. Instead they should seek consensus and if none can be found do nothing.
If this is about fairness and equal representation, your position is untenable.
I'd like you to explain how these political positions of Lessig are statist please:
* Reduced legal restrictions of copyright and patents
* Citizen funded campaign finance
* Increased government transparency and accountability
Clearly he believes the sovereignty of a nation lies with the people, not the government. So again I ask you, without agreeing or disagreeing with Lessig's politics, can you clearly explain why you believe politically Lessig is a statist.
When a lot of money is spent on politics, a statist sees a restricted government. The statist wants to free government from spenders' influence. The statist wants to give the government more freedom to act.
When a lot of money is spent on politics, an anti-statist sees an oppressed people. The anti-statist wants to free the people from government power by decreasing the importance of government. The anti-statist wants to restrict government's freedom and power.
Under this framework Lessig is a statist. He sees political spending not as a sign that government is too powerful, but rather that government is not powerful enough to act against the big spenders' interests. Lessig advocates more restrictions on the spenders. He thinks that Citizens United (rebuffing government's attempt to silence corporations) was wrongly decided.
Massive political spending is of concern to both statists and anti-statists. For statists, it is a sign that government is not acting independently and disinterestedly in the people's interests. Money is corrupting government. For anti-statists, it is a sign that government is seen by the people as a large threat or a large opportunitiy, neither of which is good because it implies that government is important, which it shouldn't be.
Little political spending is viewed favorably by both statists and anti-statists. For statists, it is a sign that special interests see political spending as futile to stop a government from acting in the common interest. For anti-statists, it is a sign that government is too weak to matter very much or is acting so neutrally that no one is complaining.
The framework you outline is far too general to term someone a statist. Statists are in this subset of people yes, but so is anyone left of center.
If you want to claim Lessig leans more towards a statist school of thought than an anti-statist school of thought I will agree with you. But ultimately a statist believes the sovereignty of a nation lies with the government and not with the people. I don't think Lessig believes this. To label Lessig a statist you'll have to make a far stronger case than what you've presented here.
It seems to me that the word "statist" implies a context/framework in which the state, as a coercive institution, is separated from the rest of society which is non-coercive. In this context, a statist is one who favors the state or equivalently, a statist prefers to solve social problems by relying on force rather than cooperation.
It seems to me that most people don't think in these terms. They don't distinguish between the state and everything else. Rather they think pragmatically: "How can I have a better life?" or "What's good for my country?" Lessig seems to fall in this group. So for example, he sees that copyright law is not encouraging an innovative society, and therefore he wants to change the law. Or he sees that government is acting in the best interest of corporations rather than "ordinary" folks and so he tries to change that. He's not thinking in terms of strengthening or weakening the "coercive institution of the state."
Analogous situations: Most web developers think in terms of solving technical problems, "how can I get this page to look a certain way?", rather than being standards compliant. Most general consumers think in terms of comfort, convenience, value, etc, rather than "green" (what's good for the environment) or patriotically (buy American).
So when Lessig is called a statist, he is being characterized in the framework implied by the term, which is not the framework in which he thinks.
It's easy to paint a rosy picture of our past. Do government regulations go too far some of the time? Definitely. But they do serve an important purpose in others.
Historically, 40 senators could prevent debate from being cut off but they would need to all occupy the chamber and actually be debating the whole time. See Strom Thurmond reading the phone book on the senate floor during the civil rights filibusters, for example.
But that took a bunch of time, time you could be at fundraisers or hanging out at home or whatever. So they made it easier over recent years, with the result that the current Senate filibusters more than twice as much as the last one, which itself filibustered more than historically, etc.
As for cloture, in its original incarnation (remember, this was only quite recently: 1917) it required 16 senators to file a petition for cloture, at which point 2/3 of those present and voting needed to vote in favor to lead to a vote. However, presiding officers consistently interpreted this Rule as NOT applying to "motions to proceed to consideration of a bill," which are necessary by Senate Rule (from I don't know when, probably since Jefferson's Manual) for making a piece of legislation the main motion. As a result, if you didn't like a bill, you could still always just filibuster the motion to proceed until the late 50s/early 60s when this loophole was closed. Since there were 3-4 votes between the motion to proceed and the final vote on the issue, a group of 10-20 senators (say, the Southern bloc) refusing to allow a bill to come to the floor was more than enough to kil lit.
My point is this: the notion that the filibuster is a recently parliamentary invention ignores the 80-some-year period from 187X to 1957 when not a single bill related to racial injustice was passed into law at the federal level. To my knowledge, "the South" was never even in control of 1/3 + 1 of the seats in the Senate chamber, but they still managed to effectively use Senate Rules and precedents to restrict these bills from coming to a vote, and I can't think of a single congressional session during this period that was extended to try to outlast opponents of a bill. It just didn't happen.
Today, at least, you can a) get to cloture vote, since the motion to proceed loophole has been closed and b) stand a reasonable chance of succeeding at the cloture vote, since you only need to convince 3/5 of the Senate that something is worth voting on. If there is more technical filibustering right now (by which I suppose one means defeat of cloture motions), then at least there is a public denouement, rather than a policy of simply giving up when a handful of senators express opposition.
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Also, two asides: 1. Thurmond's 1957 filibuster only occurred because he wasn't backed by the rest of the Southern Caucus. They chose to allow the bill to come to a vote, presumably because they knew that Lyndon Johnson (majority leader) needed a civil rights bill in order to be a plausible presidential candidate, and they really really wanted a Southern president.
2. The idea that the Senate Rules are readopted every session has never really been accepted by the Senate. Nixon was the first presiding officer to rule as such in 1953 (it may have been 1955) as part of civil rights strategy, but it was overruled on that occasion and on most later occasions. In general, I would say that the prevailing sentiment among Senate parliamentarians is that the Senate is more of a continuous body, and I would expect a real struggle if a majority ever attempted to pass a new set of Senate Rules under the supposed "normal parliamentary rules" under which the Senate debates at the beginning of each session.
Rather than simply giving in to anarchy as you suggest, let's try to improve democracy.
Your fictional "once upon a time" must have been the time when people rode unicorns to work, and nobody ever hungered because elves in trees fed everybody. In the real world money is what makes laws, and Lessig is the closest thing we have to a super-her.
If every employee of GM wants to donate $2k to Obama, great, let them. If GM wants to donate $2M to Obama -- no way!
http://reason.com/blog/2010/01/28/stop-the-car-larry-i-want-...
I think the real solution (to corporate and government overreach) is to consume less, buy local, invest local, use community banks, etc (and also, to think about who we vote for, for a change). I think Lessig's ideals would be better served if he focused on the small but growing movement around these things. But, alas, as Lawyer, he's part of the system in many ways and, as such, a bit of a top-down problem solver.
If anything, the power of corporations has been lessening simply because of the nature of the net/web (just think how difficult it's been for even politically authoritarian societies like China to maintain a control over what people hear/see/think). Fortune Magazine tracks the life of the average Fortune 500 company and it's been in steady decline. The dominance of any individual company is far from permanent and made even less so with continually falling barriers to entry.
The perverse irony is that larger firms like regulation because they're the most able to adapt to them and can use them to keep upstarts out.
Of course, you meant the grandparent post. That means that you're saying that because witchcraft was seen as a threat to society in the Early Modern period (but _not_ the Medieval period, when the Papal Inquisition regarded witchcraft as a superstition, and referred anyone who brought them a witchcraft charge to Ye Olde Psychyatryste), and the witches were not a threat (although there were real witches -- Kieckhefer, Richard, _Magic in the Middle Ages_ (200)) -- again, because the witches (and the enormous number of innocents who were falsely killed as witches) were not a threat in the 17th Century, anything that anyone sees as a threat at the present day is similarly not a threat.
The right thing to do is to ask whether this particular possible threat is in fact a threat. I agree with your conclusion -- I think that the parent post is right, corporations are no longer the cohesive bloc that they were as late as the 1980s -- but I think you're doing it a disservice by using such a weak argument for it.
Here's Cato's take on anti-trust: http://www.cato.org/pubs/handbook/hb105-39.html
Besides, I don't agree with you, because it doesn't take into account externalities. When "efficiency" takes the form of polluting the river because someone else will clean it up, it most assuredly is not a net improvement.
Have you ever the of the word "trade" and "merchants"? Do you "buy"? There's a reason for "specialization" and "division of labor". It's why we're so wealthy, because of our economy's vast ability to make stuff and transport stuff. Utilize people's comparative advantage, we can produce more unit of goods than we would otherwise if we do not specialize and trade.
Trade is the stuff of civilization. We should encourage more of it.
Locally produced food is the most obvious, practical thing to buy because it is fresher an tastes better which should be compelling enough on it's own.
I'm not saying don't trade, I just think we should think about what we're buying a bit more. As Fugazi said, "Never mind what they're selling, it's what you're buying!" Heh.
if "Trade is the stuff of civilization" as you say, is it not critical that our trade reflects our personal beliefs?
If you don't like what certain large corporations are doing, don't give them your money. In many cases, as with food, an easy way to do this is to buy from local farmers directly or through local coops.
Let's say I work a normal 9-5 job for a large company, like Ford. Let's further say I'm a Democrat, but Ford decides to donate a large sum of money to a Republican candidate. (Or, if you'd rather not consider party affiliation, just assume I disgree with the candidate's platform.) Essentially, my work is now directly going to fund policies that I disagree with. Does that mean I should quit my job and go work for a corporation that supports Democrats?
This can happen in a way without corporations being able to directly contribute, but at least the money is funneled through the compensation of the executives and it's their own personal decision. Although I might think the executive is overpaid, I have no right to tell anyone else how to spend their own money.
Similarly, what if I'm an average American and I have some of my IRA/401(k) invested in Ford, who then backs a political candidate I don't agree with. In a less direct way, my money (used to purchase stock in the company) is being used to fund political decisions I disagree with. Should I sell my stock?
The missing element that it seems no one is talking about is that the ruling essentially politicizes both the employer-employee relationship and the corporation-stockholder relationship.
So what? You're an employee, not a shareholder.
Shareholders are free to vote out management. They're also free to choose which companies to own.
> Should I sell my stock?
Yes.
You're not obligted to buy/own their stock, they're not obligated to do as you'd like (unless enough of your fellow owners agree).
Also slightly related - why is it acceptable to persuade a court to release suspects by simply paying them bail money in England and America?
Money walks all over morals.
On bail - suspects are presumed innocent until proven guilty. The idea is that someone accused of a crime can free themselves until trial, with the bond money used as an incentive to get them to return to face trial. Well, there's also the incentive that they will be hunted down by bounty hunters if they flee.
This has two benefits. The accused can mount their best defense, fee from the confines of jail. The other, which is probably most important, is that the government can't just jail someone for a long period by accusing them of a crime.
The use of money for bond is imperfect, but it seems to work. Bail is set with the amount varying with the severity of the crime. Severe crimes (such as murder) can be refused bond, forcing the accused to stay locked up.
For those who lack the means to post the full bond, there are people who sell bail bonds -- in other words, they will post the full bail, if you pay them a percentage and a fee. The understanding is that you show up for court, or they will use civil suits and bounty hunters to get the money from you and put you in front of a judge forcibly should you flee.
The "accepting money to mould policy" part? Wow. Our lobbying system in general in the US is a mess. I honestly have no defense for it. If I was in charge, I'd place much stricter limits on lobbyists.
You get it back if you make all of your court appearances. it's way to help ensure that people charged wth a crime don't flee.
"Money walks all over morals."
How so?
Would it be better to keep people in jail simply because they've been accused of a crime?
If everyone was trusted to show up for court after being charged I think we'd have a whole other set of issues.
I'm not suggesting you put all suspects in jail.
This isn't just about a person who misses a court date because they're lazy; it's also about people who may flee to a different country, or start working under an assumed name, or anything of the sort.
If they've already paid, they have some incentive to come back and be able to reclaim their bail money.
If they do skip town, sending cops after them to track them down and arrest them again is expensive. That's where the bounty hunter part comes in; if they skip their court date, their own bail money is used as incentive to encourage police officers, sheriffs, or private investigators to capture them.
In many cases, this isn't the romantic image of a western cowboy hunting down dangerous criminals in caves, but just the equivalent of a debt-collection agency, that calls them, mails them, files information with credit agencies preventing them from receiving credit, and so on.
There's one thought that applies to smaller population. If someone disappears you can just stop worrying about them? Hiding from public and going to jail has close to the same net benefit for society. Just thinking.
Those in power want it to be corrupt to perpetuate themselves in power. Those aspiring for power become corrupted once they get there.
Small government, local voting and decision making. Direct democracy. No politician wants a reform for they will be left out.
We must burn down the government to save it.
Constitutionally the USA is a representative democracy defined as republican in modern political argot. If you have the time a reading of Federalist No. 10 is quite enlightening (although a little tough).
"Democracy is the theory that the common people know what they want and deserve to get it good and hard." --Mencken
one of the major issues of democratic systems is that it is always in the interest of whomever is in the minority position to dilute suffrage.
Remember, there will always be thugs, and thieves, and swindlers out there. There will be hostile nations. And there will be freeloaders; people who try to take advantage of any sort of public or semi-public works or institutions, such as roads, schools, hospitals, and the like without paying.
Do you have a (realistic, please no Ayn Rand power fantasies) proposal for dealing with all of these problems without a government? Or do you have a proposal for selecting that government fairly, justly, and well without democratic elections?
However, I could describe in details how might an anarchistic free market society would work.
If there are any plans, it would be mostly be about trying seasteading, counter-economic black market activities, among other things.
Liberty to me, can only occurs on an individual level, not through social engineering by a carefully selected technocract.
Indeed, I don't have anything to answer for a "plan" nor do I know if it is realistic at all.
And I said public or semi-public. It's pretty hard to prevent anyone unauthorized from getting onto a road; by definition they are big, and need easy access to be valuable. That's what I mean by "semi-public." If you have private roads, how do you prevent freeloaders without some sort of de-facto government? Likewise with hospitals; you can't distinguish between someone covered by your insurance and someone not when they come in from an automobile wreck, nor can you negotiate prices with them.
Liberty to me, can only occurs on an individual level, not through social engineering by a carefully selected technocract.
So you would prefer to be a lone hunter-gather than take advantage of the benefits that modern society has to offer you? Because beyond the lone, solitary hunter-gatherer, someone else's needs are always going to affect what options are available to you.
Maybe all these "small government", "liberty" people responding can explain how it fits with their world view that the northern European countries, who are not known for the smallness of their governments, consistently manage to have the highest standard of living and the most well-functioning and democratic governments in the world?
Their standard of living is not the highest.
Moreover, they're basically monocultural. Minnesota works about as well as the Scandanavian countries.
http://yglesias.thinkprogress.org/wp-content/uploads/2009/05...
And how do you intend to do objective comparison on standard of living? How do you weight the unemployment figure above, for example, in such a measure?
Also, an American friend of mine who lives in France tells me that, because of French social programs, unemployment is not as scary or devastating there as it is in the states.
On the other hand, I have a French friend who lives in the States and enjoys the American sense of innovation and competitive spirit which he feels is lacking in France.
You're right, standard of living is hard to be objective about. One common measure is the Human Development Index. The US does pretty well in this compared to the rest of the world, but not compared to our more socialist sisters in Europe like France. I think one of the reasons for America's HDI lagging behind European countries is our lack of universal health care, but that's another topic.