Lessig for Congress?

by on February 21, 2008 · 14 comments

Julian interviews Larry Lessig on his prospective congressional campaign. Awesome.

Julian sticks with a straight news story, but I find Lessig’s latest crusade almost painfully naive. Lessig’s work on copyright law and free culture was brilliant and nuanced. I don’t think it’s an exaggeration to say that he got people thinking about copyright issues in a new way. But having turned his attention to the problem of political corruption, he comes up with “solutions” that have not only been widely discussed for decades, but have actually been tried and found wanting. The Watergate-era campaign finance reforms, let’s remember, attempted to create a system of public financing for presidential campaigns. It failed at least in part due to the Supreme Court, which found that restricting people from spending their own money on political speech violated the First Amendment.

The problem of political corruption is fundamental to politics. When governments have the ability to take from some and give to others, people will expend resources to ensure they’re on the winning side. Lobbyists and PACs are symptoms of this underlying process, but banning them isn’t going to eliminate the incentive to influence the political process, it will just lead special interests to find new ways to do so.

In the writings I’ve seen on this subject thus far, Lessig doesn’t appear to seriously grapple with these difficulties. As he put it in his original post on this subject:

In one of the handful of opportunities I had to watch Gore deliver his global warming Keynote, I recognized a link in the problem that he was describing and the work that I have been doing during this past decade. After talking about the basic inability of our political system to reckon the truth about global warming, Gore observed that this was really just part of a much bigger problem. That the real problem here was (what I will call a “corruption” of) the political process. That our government can’t understand basic facts when strong interests have an interest in its misunderstanding.

I think that parenthetical comment is crucial. What Lessig is grappling with isn’t a corruption of the political process. Rather, it’s a reflection of systematic problems with political decision-making. Procedural changes, like banning PAC contributions, earmarks, or third-party campaign expenditures, may shift power away from the current crop of special interests towards new ones. But politics just is the clash of special interests. Sometimes, one of the special interests with a seat at the table will be a public-spirited, grassroots organization like the ACLU, Creative Commons, or the National Rifle Association. But the self-interested factions devote vast resources to ensuring they maintain their seat at the table. PACs and lobbyists are symptoms. The underlying problem are the inherent incentives of the political process.

  • http://eldiabloenlosdetalles.net Carlos

    Hi Tim,

    I think you’re very much right about characterizing the political process as the clash of special interestets. But on the other hand, the mechanics of that clash are extremely important.

    The particular details of how those special interests are able to have their voices heard by politicians should matter a huge deal, even if there’s no silver bullet that will be able to solve the problem permanently.

    Same is true, it seems to me, with the financial system: there are enormous incentives to cheat (tax loopholes, fantasy accounting, etc.). We don’t just say about those things that they are a systematic part of the market economy and that we shouldn’t do anything about them. Instead, we understand we need to be vigilant and act when necessary to correct the problems.

    Why should the political process be any different?

  • http://eldiabloenlosdetalles.net Carlos

    Hi Tim,

    I think you’re very much right about characterizing the political process as the clash of special interestets. But on the other hand, the mechanics of that clash are extremely important.

    The particular details of how those special interests are able to have their voices heard by politicians should matter a huge deal, even if there’s no silver bullet that will be able to solve the problem permanently.

    Same is true, it seems to me, with the financial system: there are enormous incentives to cheat (tax loopholes, fantasy accounting, etc.). We don’t just say about those things that they are a systematic part of the market economy and that we shouldn’t do anything about them. Instead, we understand we need to be vigilant and act when necessary to correct the problems.

    Why should the political process be any different?

  • http://www.techliberation.com/ Tim Lee

    Carlos, the big difference is that in a market economy, peoples’ incentives are well-aligned to expose corruption. If your business partner cheats you, you have a large stake in making sure he doesn’t get away with it. So all that’s needed to ensure a reasonable non-corrupt financial system is to have reasonable clear rules and effective mechanisms for people to vindicate their rights.

    The political process is different because generally special interests don’t cheat a specific person, but taxpayers or consumers in general. That means there isn’t any individual with a vested interest in opposing it. And so you can pass all the rules you like, but they’ll be chronically under-enforced, because it’s not worth any specific person’s trouble to ensure they get enforced.

    With that said, obviously procedural reforms can be worthwhile. It’s a good thing that bribery is illegal, and I’d like to see reforms like term limits and a balanced budget amendment enacted. But I have no illusions that any of these reforms are going to “clean up” politics. Politics just is a spoils system. I don’t think you can change that, but what I’m interested in doing is reducing the size and power of government, so that there are fewer spoils to be had.

  • http://www.techliberation.com/ Tim Lee

    Carlos, the big difference is that in a market economy, peoples’ incentives are well-aligned to expose corruption. If your business partner cheats you, you have a large stake in making sure he doesn’t get away with it. So all that’s needed to ensure a reasonable non-corrupt financial system is to have reasonable clear rules and effective mechanisms for people to vindicate their rights.

    The political process is different because generally special interests don’t cheat a specific person, but taxpayers or consumers in general. That means there isn’t any individual with a vested interest in opposing it. And so you can pass all the rules you like, but they’ll be chronically under-enforced, because it’s not worth any specific person’s trouble to ensure they get enforced.

    With that said, obviously procedural reforms can be worthwhile. It’s a good thing that bribery is illegal, and I’d like to see reforms like term limits and a balanced budget amendment enacted. But I have no illusions that any of these reforms are going to “clean up” politics. Politics just is a spoils system. I don’t think you can change that, but what I’m interested in doing is reducing the size and power of government, so that there are fewer spoils to be had.

  • http://bennett.com/blog Richard Bennett

    I wrote about the Lessig campaign on my blog yesterday, so this is an interesting subject. I agree with Tim that Lessig’s fundamentally naive about politics and government.

    If Lessig were to get elected (anything is possible in a special election in California, even Schwarzenegger) it’s likely that he’d become a novelty legislator like Ron Paul, and would probably drop out in fairly short order. Lessig has rock star status in his little world today, but the Congress is full of legends and he’d have a hard time finding a niche.

    So the question about the Lessig candidacy is probably whether Jackie Speier is elected to the House this year or in the next election after Congressman Lessig loses interest in “corruption” and goes after some other cause.

  • http://bennett.com/blog Richard Bennett

    I wrote about the Lessig campaign on my blog yesterday, so this is an interesting subject. I agree with Tim that Lessig’s fundamentally naive about politics and government.

    If Lessig were to get elected (anything is possible in a special election in California, even Schwarzenegger) it’s likely that he’d become a novelty legislator like Ron Paul, and would probably drop out in fairly short order. Lessig has rock star status in his little world today, but the Congress is full of legends and he’d have a hard time finding a niche.

    So the question about the Lessig candidacy is probably whether Jackie Speier is elected to the House this year or in the next election after Congressman Lessig loses interest in “corruption” and goes after some other cause.

  • Adam Thierer

    I hope all the Lessig backers out there in cyberspace who are currently promoting his candidacy will recall that he has proposed a massive censorship regime for the Internet. I wrote it about it extensively here.

    In Chapter 12 of Code, he spends several pages discussing possible “architectures that zone speech” and he elaborated about how such speech zoning and “tagging” laws might apply to cyberspace in an article for Wired magazine a few years ago.

    Just what we need; another Net censor in Congress.

  • Adam Thierer

    I hope all the Lessig backers out there in cyberspace who are currently promoting his candidacy will recall that he has proposed a massive censorship regime for the Internet. I wrote it about it extensively here.

    In Chapter 12 of Code, he spends several pages discussing possible “architectures that zone speech” and he elaborated about how such speech zoning and “tagging” laws might apply to cyberspace in an article for Wired magazine a few years ago.

    Just what we need; another Net censor in Congress.

  • http://eldiabloenlosdetalles.net Carlos

    Hi Tim,

    I guess I misspoke before. I think that imperfections in both the political and financial systems (lack of adequate information, for example) allow for corruption, and that both need some oversight.

    And it seems to me there are plenty of examples of companies acting in the financial system in an analogous way to special interests in the political system: when a company uses loopholes to avoid paying taxes, isn’t cheating us all, the same way as if it had got a special piece of legislation out of its favorite congressperson?(legality put aside, of course).

  • http://eldiabloenlosdetalles.net Carlos

    Hi Tim,

    I guess I misspoke before. I think that imperfections in both the political and financial systems (lack of adequate information, for example) allow for corruption, and that both need some oversight.

    And it seems to me there are plenty of examples of companies acting in the financial system in an analogous way to special interests in the political system: when a company uses loopholes to avoid paying taxes, isn’t cheating us all, the same way as if it had got a special piece of legislation out of its favorite congressperson?(legality put aside, of course).

  • http://www.techliberation.com/ Tim Lee

    Well, I would regard the tax code as part of the political system. Favor-seeking doesn’t necessarily imply outright corruption. For example, there are a lot of wealthy farmers who get hundreds of thousands of dollars from federal farm programs. What they’re doing is perfectly legal, but it’s still sleazy. I would put your loophole-seeking businesses in the same category.

  • http://www.techliberation.com/ Tim Lee

    Well, I would regard the tax code as part of the political system. Favor-seeking doesn’t necessarily imply outright corruption. For example, there are a lot of wealthy farmers who get hundreds of thousands of dollars from federal farm programs. What they’re doing is perfectly legal, but it’s still sleazy. I would put your loophole-seeking businesses in the same category.

  • http://enigmafoundry.wordpress.com eee_eff

    I think that parenthetical comment is crucial. What Lessig is grappling with isn’t a corruption of the political process. Rather, it’s a reflection of systematic problems with political decision-making. Procedural changes, like banning PAC contributions, earmarks, or third-party campaign expenditures, may shift power away from the current crop of special interests towards new ones. But politics just is the clash of special interests.

    Tim, you’ve just descended into a type of moral relativism and cynicism, although perhaps unintentionally.

    In a sense, all interests can be said to be ‘special interests’ For example, the special interest group against Global Warming is confined to that special interest group of those who actually care about the future of the human race. So, yes all interests are special, but some are more special than others.

    Regarding your disdain for changing procedural rules, you would have to make the case that the present system is the best of all possible systems, before you can make the case that procedural changes shouldn’t be attempted.

    A system that does not make the needed adjustments in the face of Global Warming is malfunctioning by definition.

    That the corruption is so directly funded by those who directly benefit (see http://www.exxonsecrets.org) is evidence enough that the system is being run by the rich, who have been terinally blinded by their avarice and greed. Why should we let them pull the rest of the human race down with them?

    “The most important human endeavor is the striving for morality in our actions. Our inner balance and even our very existence depend on it. Only morality in our actions can give beauty and dignity to life.” Albert Einstein

  • http://enigmafoundry.wordpress.com enigma_foundry

    I think that parenthetical comment is crucial. What Lessig is grappling with isn’t a corruption of the political process. Rather, it’s a reflection of systematic problems with political decision-making. Procedural changes, like banning PAC contributions, earmarks, or third-party campaign expenditures, may shift power away from the current crop of special interests towards new ones. But politics just is the clash of special interests.

    Tim, you’ve just descended into a type of moral relativism and cynicism, although perhaps unintentionally.

    In a sense, all interests can be said to be ‘special interests’ For example, the special interest group against Global Warming is confined to that special interest group of those who actually care about the future of the human race. So, yes all interests are special, but some are more special than others.

    Regarding your disdain for changing procedural rules, you would have to make the case that the present system is the best of all possible systems, before you can make the case that procedural changes shouldn’t be attempted.

    A system that does not make the needed adjustments in the face of Global Warming is malfunctioning by definition.

    That the corruption is so directly funded by those who directly benefit (see http://www.exxonsecrets.org) is evidence enough that the system is being run by the rich, who have been terinally blinded by their avarice and greed. Why should we let them pull the rest of the human race down with them?

    “The most important human endeavor is the striving for morality in our actions. Our inner balance and even our very existence depend on it. Only morality in our actions can give beauty and dignity to life.” Albert Einstein

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