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08.06.08

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Phaedra

Independence 2.0

A Silicon Valley visionary explains what's wrong with America—and how wikis can save it

By Lawrence Lessig


YOU CAN enter any of the office buildings of Congress fairly easily. There's a metal detector manned by guards, obviously not happy with their TSA-like shift. The search is brief, almost fake. You're then inside a building typically with long, beautiful hallways, onto which the offices of congressmen and senators open. Often the halls are empty. Silent. Almost abandoned.

Then, seemingly at random, a single person may enter a hall, or a gaggle of staffers. And sometimes, at the center, is a member of Congress.

Harried, focused, typically reading something as he or she walks, often frowning, unless you catch his or her eye. Then you're met, whether you know the member or not, with an "of course I remember you" smile, for a second, until light won't bend to you, at your angle, anymore.

The race then resumes, to a typically meaningless procedural vote, or to a fluorescent-lit cubicle in an office just next to the Capitol, where members spend hours cold-call fundraising, the only truly required work of members of Congress.

It is easy in this mix not to notice the basic bankruptcy that is the First Branch of the Framers' Constitution: Congress. The obsessively hard work of the staff, the fawning of visiting constituents, the respect of uniformed officers—all that fuels an obliviousness to the basic failure of this, the democratic core of our government.

Public cynicism about Congress couldn't be greater; public approval couldn't be lower. (Rasmussen, for example, recently reported that for the first time, favorable views about the work of Congress fell to single digits—9 percent.) But most in Congress do their job as if the standing of Congress were simply not their concern. Members are loved locally, and that is enough. That the institution they serve is despised is irrelevant.

Nothing on the political horizon is going to change this. Bush v. Gore notwithstanding, the public still trusts and admires the Supreme Court. No matter whether Obama or McCain wins in November, the public will once again approve and admire the presidency. But nothing will save Congress. Without fundamental change, the institution will remain despised and increasingly irrelevant. Power will continue to shift—as it has for the past 50 years—to the president and the Court. The core institution of the Framers' democratic design, the institution that many of them were most proud of, will remain essentially bankrupt.

That's a strong term. But it predicates well of Congress. If the credit of any public institution is trust and respect, then Congress is, as Webster's would define it, "discredited, having forfeited all credit." Not because of any particular decision, or failed vote. Most couldn't name one thing Congress did or didn't do that they object to. Not because anyone believes its members (or most of its members) are bribed, or evil people. To the contrary, Congress is filled with souls with an extraordinary commitment to the public. These are good, not evil, people.

Rather, Congress's "credit" is "forfeit" because of a profoundly deep sense among most that the machine that is Congress is simply bent. Like a rigged slot machine at a casino, or a balance sheet by the Enron accounting department, the vast majority of Americans don't believe that the answers Congress gives are the right answers for the right reasons. Most believe that they track something else entirely: not sense but dollars. And not the dollars of an illegal bribe (though no doubt, too many believe this too), but the dollars that fund the essential element of congressional tenure—campaign contributions.

America's view of Congress' behavior is not likely correct. Political scientists are almost unanimous in their judgment that there is no simple quid pro quo to what Congress does. If there is improper influence, it is far less direct, or obvious. Any improper influence is well hidden in the web of relationships that power attracts.

But this is one of those crucial contexts in which perception is reality. Congress is bankrupt because the people see it so. Why America sees as it does is obvious; likewise obvious is what Congress must do to change that belief. Not obvious, however, is how that change gets effected.


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The Rise and Fall Of Independence

The Framers of our Constitution were obsessed with the idea of "independence." Not the "independence" of 1776. Rather, an independence that many feared the people and the nation had lost by about 1785.

"Independence" in the sense of a lack of dependence. The "independent," as Blackstone put it, has "no rule to pursue, but such as he prescribes to himself." He needn't conform himself to the will of others. He was free to follow what was right, or just.

Dependents didn't have this freedom. Until their "independence," as Jane Austen often described, sons were not free of the will of their parents. Laborers were tied to the interests of their employers. Magistrates dependent upon the king couldn't defend rights against the king. In each case, dependency sapped the soul. If not but temporary, it would corrupt. It was therefore the Framers' vision, a "Republican ideal," that the individual, the representative and the nation would be protected from this type of "corruption," by protecting the individual, the representative and the nation against improper dependency.

By about 1785, however, many feared this ideal had been lost. States-centered democracy had produced an insane mix of nation- and state-destroying regulation. Congress had little power to respond. Growing and improper dependencies were diverting representatives from any public good. Insufficient independence disabled the executive and the courts from resisting unjust, destructive legislation. A deep and pervasive "corruption" seemed to be spreading across the Republic.

The solution was to build institutions, or constitutions, against improper dependency. "Each department," Madison argued in Federalist 51, "should be as little dependent as possible on those of the others." That independence would give these departments the means to do their job properly. Indeed, the only proper dependency identified in the whole of the Federalist Papers was the ultimate dependency of the government upon "the People." In every other respect, corruption-inducing dependency was the single most prominent target of the Constitution's design.

It was a powerful plan. Human nature, however, proved more powerful.

For most of its history, even the crudest forms of corrupt dependence continued to thrive within our government. As Harvard professor Dennis Thompson writes:

In the nineteenth century, respected members openly accepted money for personal use from companies directly affected by the legislation the members supported. Daniel Webster, for example, was on retainer from the Bank of the United States. While serving as the bank's leading defender in Congress, he not-so-subtly reminded its president, "If it be wished that my relation to the Bank be continued, it may be well to send me the usual retainer.

And it wasn't just Webster. The 19th century was a cesspool of political corruption. "Bribery" in Congress wasn't even a crime until 1853. And the spoils were not limited to the politicians. In many districts around the nation, over 25 percent of the votes were expressly purchased by some local interest. Politics was just another market, for both the citizen and the politician.

The 20th century, however, was much better. Many more went to Congress with an ideal in their head. Many more believed their public service was service to the public. "Corruption" in its traditional sense of bribery fell dramatically. The policing of improper personal gain rose effectively.

But just as Congress was learning well how to immunize itself from obvious corruption—just as it institutionalized, that is, a ban on this one kind of dependency—a different dependency began to sweep the Hill: the dependence upon private funding for public elections.

Gone was the 19th-century grotesque. In its place was a far more subtle and pervasive structure of dependence: campaign fundraising, consuming anywhere from 20 percent to 60 percent of a member's time, and for some at least, overwhelming their attention. The system of private funding to keep their job became the job.

This is not clearly appropriate. Or better, the dependency birthed in this system is not clearly appropriate. For no doubt, this is its own dependency. No doubt, it constrains the freedom and judgment of a representative.

New Sunlight

The political scientist will insist that there is no good evidence that money affects results directly. Despite generations of empirical work trying to show a quid pro quo, nothing has been found. Yet even without changing votes, the dynamic can skew Congress' work in predictable ways. This dynamic changes government. The work of Congress gets diverted. The issues that get attention are different from what they otherwise would have been. Think about Bill Gates' claim—"fifty times the amount spent on researching malaria goes to finding a cure for baldness"—and shift the reference to government: In 15 words, you have a picture of Congress.

"But is this really it?" you might ask. "That the dependency of private funding simply shifts the focus of Congress? That's all? And if so, is this really the issue to worry about?"

This is where I got stuck for most of the time that I've thought about this question. No doubt there's a theoretical harm here. But what's its practical effect? Why should a reformer worry about this before she worries about health care? How could a reformer justify working here when there are issues like global warming that need a solution too? One response would be to quibble with the scientists. For not everyone believes the story is this sanguine. Many former members of Congress, for example, are quite convinced that money has a significant effect, certainly on the agenda, but also on the results.

Many believe that money at least buys access. As Sen. Paul Simon put it, when you're handed a stack of telephone messages at the end of the day, most of which are from people you've never heard of, and one from someone who has given you $1,000, "which call do you think you're going to make?"

And political scientists notwithstanding, many remain convinced that the system compromises members directly. "There are some colleagues that I've worked with," Rep. Leslie Byrne (D-Va.) says, "whom I think it does compromise. They feel like they have to ameliorate or change their position ... for fear of losing certain contributions."

Rep. Eric Fingerhut (D-Ohio) believes the same: "It is very difficult for me to accept ... that people [don't] consciously or subconsciously tailor their views to where they know the sources of campaign funding can be."

All these views have fueled a new generation of reformers who seek to bring transparency to the functioning of Congress. The Sunlight Foundation, for example, has spent millions to make the link between contributions and results clearer. One of its grantees, Maplight.org (on whose board I sit), has developed brilliant new technologies (if we don't say so ourselves) to help track in real time the link between contributions and results.

Days after the House voted to grant immunity to telecom companies for helping the Bush administration spy on Americans, for example, Maplight.org released a study of the 96 Democratic members of Congress who had switched their vote to support immunity.

On average, flip-flopping Democrats received almost twice the money from telecom companies as those who stood firm against the immunity. No one will say, of course, that the money caused the flips. But we believe far more than we are willing to say, or can prove.

I've come to believe that this is the single issue we need to solve if every other important issue is going to have a chance of being solved sensibly. The dependency of modern campaign finance is the single most important cause of the bankruptcy of Congress. Fixing this bankruptcy is the single most important reform effort that Americans face just now.

That's not to say there aren't other, extraordinarily important issues that America faces. Of course there are. Global warming is at the top of my list. The peace in Iraq may be at the top of yours. But fixing the bankruptcy that is Congress is the first step to solving these other issues. Without this first step, the other reform simply won't happen.

Internet Extortion

One year into his administration, Vice President Gore gave a speech at UCLA, laying out the Clinton-Gore vision of the National Information Infrastructure (a.k.a. the Internet). Among the many proposals Gore sketched, one seemed small and technical: Gore proposed recrafting the Communications Act to add "Title VII." Title VII was intended to deregulate Internet infrastructure. It would have removed DSL from heavy FCC oversight, and provide one consistent regulatory bucket, which would give Internet infrastructure providers a relatively free hand.

Gore's team took this idea to Capitol Hill. As described to me by a member of his team, the reception was not favorable. "'Hell no,' we were told." The concern? Translated: "How are we going to raise money from those guys if we deregulate them?"

This is, roughly speaking, extortion. And if so, then the Communications Act is a kind of extortion-enabling regulation: regulation whose reach was explained, in part at least, by the opportunity such regulation would give regulators to raise money.

And if so, then how much other regulation is extortion-enabling in just this sense? How many other examples are there of government reaching beyond what it needs to regulate effectively, merely to assure that members can raise campaign funds more effectively?

The dependency of campaign funding, however, doesn't just expand the scope of government regulation. More troublingly, it also queers the result of that regulation. Instead, the bending produced by this distorting influence reaches some of the most important issues government touches.

It's hard to see this bending ordinarily. Much of the work of government is difficult. To see that an answer was "bent" you need to know what the right answer should have been. If the right answer is hard, or contested, it's difficult to establish that the wrong answer was given.

But not all questions that government faces are hard questions. Not all are genuinely contestable. Some are just right or wrong. There are 2 + 2 = 4 questions in government. And yet sometimes the answer the government gives to these questions is, well, not 4.

I've spent a decade fighting one set of those questions—those surrounding copyright in a digital age. Some of the policy questions in this area are hard. Many are not. In 1998, Congress passed the Sonny Bono Copyright Term Extension Act, extending the term of existing copyrights by 20 years. The policy question here was not hard. In a brief filed in the Supreme Court challenging the statute, 17 economists, including five Nobel Prize winners, argued the policy question was not even close. (Milton Friedman said he'd join only if the word "no brainer" was somewhere in the brief.) If the purpose of copyright is to create the incentives to produce, increasing the copyright term for work already created cannot possibly serve that purpose. Yet Congress passed the statute, this basic error notwithstanding.

Or consider perhaps the most profound misfiring of modern American government—global warming. Davis Guggenheim's film of Al Gore's An Inconvenient Truth lecture was a tipping point in public recognition of the threat global warming presented to America and the world. But that tipping point came long after a consensus had developed among policy experts about the threat of global warming. As Gore describes the consensus:

The debate's over. There are five points in the consensus. No. 1: Global warming is real. No. 2: We human beings are mainly responsible. No. 3: Consequences are very bad. No. 4: We need to fix it quickly. And No. 5: It's not too late.

Researchers have tried to measure just how solid this consensus is. They conducted a study of 1,000 articles published in peer-reviewed journals between 1988 and 2003. Of the 1,000, 0 percent (or exactly 0) questioned the consensus around global warming. Yet a comparable study of articles published in popular news media found over 53 percent questioned that consensus.

The difference is accounted for by the extraordinary effort by oil companies and the like to fund and spread the results of junk science, questioning global warming in a manner that threw certain views into doubt. The result was political cover for the Republican Party's campaign of Global Warming Denial. As strategist Frank Luntz put it in a memo to Republican leaders, "Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly. Therefore, you need to continue to make the lack of scientific certainty a primary issue in the debate."

The list could go on—for a very long time. None of these questions are rocket science. Not all are esoteric matters about the regulation of culture. Indeed, some are among the most important public policy questions government considers. Yet all these, despite the ease, government got wrong. And wrong in a predictable way—the product of a dependency tied to money. Among the reasons for reform, this certainly reaches quite high.

Taking Reform Online

What if you came to believe this system had to be fixed? That the danger of letting this loose cannon continue to roam freely was just too great? That a democracy in which the vast majority of citizens (indeed, a constitution-amending majority of citizens) had lost faith in the most basic institution of government could not long endure?

That's the place I came to about a year ago. I had been a scholar/activist in the free culture wars, arguing in favor of a more balanced regulation of culture than the current regime of control envisions. But as I listened again and again to Al Gore recount the struggle to get government to address the problem of global warming, it became clear that there was something much more fundamental we had to fix first. It became clear, in other words, that while there were critical public policy issues of substance to address, we would not begin to address those issues sensibly until we addressed this question of process.

Gore's latest book attacks this something as the "Assault on Reason." He argues for a return to "reason" as the basis for governmental decisions. He laments the rise of the technologies of media (mainly television) that erode the place for reason.

But long before we get to the world of "reason" governing politics, we could imagine a world where this one distorting influence—money—didn't bend the process of policymaking.

It was the idea that we needed at least this much reform that led political guru Joe Trippi and me to launch a new organization called Change Congress. Change Congress is a bipartisan reform movement intended to leverage the substantive reform work of others. The "leverage" will come from building a suite of online tools that use the power of the net to engage citizens in driving for reform.

This movement begins small. It collects members, candidates and citizens who pledge themselves to a platform of reform. (The first member to take the pledge was Congressman Jim Cooper of Tennessee. A gaggle of challengers in the current cycle have taken the pledge to signal how they would be different from the incumbent.)

Using wikilike tools, volunteers will then tag every representative, to map where they stand on core issues of reform. And finally, an Emily's List–like tool will direct money to candidates who support reform, building upon the insight that Madison thought he had perfected—creating the incentive for members to act to support the good.

No doubt it will take a number of cycles before any movement like this can build the critical mass of supporters necessary to effect substantial reform. The challenge is not that most don't understand the underlying problem. The difficulty instead is that most don't believe a solution is possible. The eyes of the average voter glaze over when "campaign finance reform" is mentioned. Not because the issue is unimportant, but because cynicism about any "solution" is so great.

Such reform is the aim of Change Congress. We will pursue it by demanding of incumbents, or those who seek to be incumbents, a commitment to clear principles of change. We will enforce it by deploying an army of wiki-workers to monitor and hold accountable members who deviate from that commitment. And we will achieve it by building an endless repertoire of examples of government misfiring because of this dependency on money. There are examples that will connect to every citizen. If we can connect these examples to a plausible path for change, then these citizens can do the rest. Because regardless of what other dependencies have accreted into the system we call Congress, dependency upon "the People" still remains.

Real Revolution

Years after his election as president, Thomas Jefferson referred to the "revolution of 1800" (the year he was elected) being "as real a revolution in the principles of government as that of 1776 was in its form." That comment is obscure to us, until we recognize, as professor Drew McCoy argues, that "revolution" meant something different to our Framers than to us. We think of "revolutions" as fundamental change. But they saw revolutions (as the word more clearly suggests) as a return to founding, or true principles. Jefferson's election got the country back to the Republican values of 1776—or so he thought. (John Adams had a different view.) It was a "revolution" because it restored ideals deemed fundamental.

It is in this sense precisely that we too need a revolution. And it is in this sense precisely that we too need a new "Declaration of Independence." Not independence from some colonial power. And not independence from all power. But independence from the dependency that has now overwhelmed our Congress. Independence from the improper dependence on private campaign funding, so as to return to a more perfect dependence upon "the People."

We all know such dependencies are impossibly difficult to correct. But we all need to see that however impossible, we have no other choice. Our Congress has lost our confidence. The consequence is an ever faster slide of power from the First Branch to the president, and the courts. But both the president and the courts are flawed democratic institutions. All presidents, not just President Bush, aspire to become monarchs. All courts lack democratic pedigree.

If this experiment in democracy launched two centuries ago is to survive, we must revolve back to at least this of its founding ideals: that the government must be architected to check the corrupting influence of improper dependence. This is the first problem reformers must fix. And however impossible it is for politicians and reformers to imagine a world where the people mobilize to demand this change, we must mobilize this world. There is no other choice. The slow slide away from a republic in which Congress is dependent upon nothing except "the People" is accelerating. Like the melting of the polar ice caps, at some point, it won't be reversed.

 

Poli Tech 101

 

Larry Lessig on democracy and the Internet

For much of the past decade, Larry  Lessig has been one of the busiest law professors on the campus of Stanford University. President of the Center for Internet and Society, founding board member of Creative Commons and a board member of the Electronic Frontier Foundation, Lessig has also long been one of Silicon Valley's most creative minds, building a legal, intellectual and political framework to support the work being done on the Internet.

A few months back, Lessig took on a new project: ridding Washington, D.C., of what he sees as a corrosive influence that interferes with that important work. Along with political guru Joe Trippi (who ran Howard Dean's 2004 presidential campaign), Lessig has launched Change Congress, an online community that hopes to use wikis as a political weapon.

As this essay explains, the group will try to focus new tools to breathe new life into an old issue: campaign finance reform.

On the phone from his car Monday, Lessig explained that 10 years of work on copyright law, intellectual property rights and other tech matters convinced him that nothing good can be done on Capitol Hill until big money is taken out of the political system.

"It wouldn't have taken a genius long to recognize the corrupting influence of money in American politics," he said, "but it took me a long time to recognize it."


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