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The Brooklyn Rail

JUL-AUG 2012

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JUL-AUG 2012 Issue

Interested Parties

Lawrence Lessig
Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It
(Twelve Books, 2012)

A handful of years ago, Lawrence Lessig, Professor of Law at Harvard University, began executing on a longstanding commitment. Since the onset of the digital era, the compact disc and the advent of file-sharing, he had made it a personal mission to update our “analog age” copyright regimes, resolving to coax, cajole, and encourage our standard practices—conceived of in a time when an actual copy of a creator’s work belonged solely to the physical rather than the virtual realm—so that they might better accommodate the intellectual and technological standards of the 21st century. Like many civic-minded firebrands, Lessig founded a non-profit organization: Creative Commons was initiated in 2001 to allow artists and creators to “mark the freedom” their work carries. It has represented a nuanced, elastic approach to intellectual property protection, one that has sought to move beyond the all-or-nothing, good vs. evil mentalities that characterized traditional copyright enforcement. From its website:

Our tools give everyone from individual creators to large companies and institutions a simple, standardized way to keep their copyright while allowing certain uses of their work—a “some rights reserved” [versus “all rights reserved”] approach to copyright—which makes their creative, educational, and scientific content instantly more compatible with the full potential of the internet.

Lessig’s insistently forward-thinking—or, we might say, contemporary—approach to copyright law is strongly linked with his newest project: extirpating, if not expiating, the systemic corruption of the U.S. Congress. In attempting to provoke a revirescence in Congressional politics—to rescue from the morass of moral, social, and economic ineptitude and inaction some fragment of representative democracy—Lessig reexamines and cunningly updates a few routine liberal stratagems, buttressing them with a strong, citation-riddled spirit of consumer-protection advocacy. The result is Republic, Lost.

The first theme that emerges in Lessig’s book is that good people do bad things unintentionally. It follows from this that to cast an issue-driven debate in terms of good and evil is to slip the reality of the conversation, and thus, to lose control of the destiny of the issue. Every political issue has a moral dimension, but Lessig urges participants to maintain an equitable meting-out of moral standards (and designations) if we are to hold a reasonable conversation about these issues. Ours, Lessig insists, is no longer a “golden age of boodle,” (which prompted the Progressive Era) in which brown paper bags of cash are slid across a table. Our representatives may be slow-to-act, bogged down by the fiscal demands required for reelection, disfigured by the maw of party politics, and suborned by wining and dining, but they are not all, a priori, bad seeds. Real harm, Lessig argues, is done in aggregate, through the normalization of bad habits and the institutionalization of irrational, wrong-headed ideas. Congress may be a welter of delay and prevarication, but to regard our legislators as villains is to distort reality and therefore the nature of the problems we face and, successively, our possible solutions. That Congress is corrupt is relatively easy to put on a cardboard poster. To articulate a methodology for recovering faith in our institutions is another task entirely.

On the question of proposed reforms, one item Lessig takes up is “the incompleteness of transparency,” a notion which prompted the E.P.A. to publish protocols for fuel efficiency in the 1970s. The idea was, “Give consumers an understandable chunk of data and let them use it to regulate their own behavior.” This has worked on the margins, with consumer behavior influencing aspects of the private sector, but it takes an act of legislation to effect greater systemic change. Transparency is crucial in protecting consumers and the environment, yet alone, it is not enough to mitigate the excesses of the unchecked imperative of corporations to pursue profit.

Another issue is disclosure of campaign funding. Like transparency, disclosure alone—a data dump of numbers and sources—cannot accurately describe the nature of the relationship between the funder and the funded; it merely records a transaction. Lessig does not scorn disclosure, yet he believes it yields two conclusions: first, accretions of campaign contributions cannot accurately measure influence; and, second, the cycle of endless campaign fundraising itself is the source of inevitable corruption and distortion of democracy. Why is this important? Because when we talk about campaign financing disclosure, we are in a sense distracting ourselves from the transformative issue: ending the inordinate influence of private monies in U.S. elections altogether. He writes:

Arizona, Maine, and Connecticut have all adopted reforms for their own state government that permits members of the legislature (and of some statewide offices) to fund their campaigns through small-dollar contributions only. Though the details of these programs are different, the basic structure of all three is the same: candidates qualify by raising a large number of small contributions; once qualified, the candidates receive funding from the state to run their campaigns.

Lessig goes on to describe just what changes he would make to broach these sorts of programs on a national level. Here is his first proposed step, the gist of his recommendation:

First, we convert the first fifty dollars that each of us contributes to the federal Treasury into a voucher. Call it a “democracy voucher.” Each voter is free to allocate his or her democracy voucher as he or she wishes. Maybe fifty dollars to a single candidate. Maybe twenty-five dollars each to two candidates. Maybe ten dollars each to five candidates. The only requirement is that the candidate receiving the voucher must opt into the system.

Lessig cites a few stipulations (e.g., vouchers may be supplemented by personal contributions of up to $100 per candidate), with the main point being to cut out all PAC money or direct contributions from political parties. It is voluntary both on the side of the citizens and on the side of the candidates. It helps foster what Spencer Overton calls a “participation interest” in a political campaign. Lessig goes on to cite an interesting fact:

If every registered voter participated in this system, it would produce at least $6 billion in campaign funds per election cycle ($3 billion a year). Some portion of that would flow to candidates. The balance would flow to political parties.

It is a canny-enough plan to earn reasonable plaudits, whether or not the political will is available in America, ready to give something more to democracy than its regular vote. Surely, periods of authentic participatory government occur only in discontinuous fits, or special spots of time, like the alignment of the planets. Nevertheless, if we’re serious about disentangling unchecked private money from the course of U.S. legislation, we need a comprehensive methodology and a plan. Whatever the likelihood is of this plan taking root, and Lessig himself belies a healthy degree of skepticism, without an articulation as deft and coherent as his, it is unlikely we will expand the scope and benefit of democratic governance to all—rather than to a mere few—of its interested parties.


The Brooklyn Rail

JUL-AUG 2012

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