Lessig is the most patriotic candidate

Almost always for me ‘patriot’ is a term of derision, but here I mean something specific: putting one’s preferred issues and interests to the side to focus on fixing the relevant institutions, in this case of the state. To make the state stronger (as in less degenerate, not necessarily huger). To make collective action work better. To steer the system away from N-party competitive distribution of public spoils by fixing the system rather than blaming particular groups of outsiders or insiders (i.e., what usually passes as ‘patriotic’).

By that specific meaning, Lawrence Lessig is by far the most patriotic candidate for U.S. temporary dictator. I hope he gets into more polls (and prediction markets) and the debates. In Republic, Lost (2011; pdf; my notes on the book below) Lessig evaluates the chances of a presidential campaign like the one he is running: “Let’s be wildly optimistic: 2 percent.” That sounds fair, but the campaign still makes sense, for building name recognition for a future campaign or for injecting non-atavistic patriotism into the debate (so let him).

The campaign worked on me in the sense that it motivated me to read Republic, Lost (which had been in my virtual ‘fullness of time’ pile). I hadn’t followed Lessig’s anti-corruption efforts closely because I was burned out from working for him at Creative Commons and based on headlines, they looked like a turbocharged version: grand and good basic ideas (roughly fixing knowledge regulation and fixing democracy, respectively), politician-like (now actual politician) total campaigning (both for money and to convince the public; in the short term the free culture movement is surely poorer in both respects relative to a world in which Lessig did not shift focus), and constant startup-like pivoting and gimmicks that seemed to me distractions from the grand and good ideas (but no doubt to him are essential innovations). There are many reasons Creative Commons was not a venue ripe for experimentation, and it seems to (I’m barely involved anymore) have mostly settled into doing something close to commons coordination work I believe it is most suited to, including work on license interoperability and supporting open policy. But in hindsight a venue or series of them (cf. Change Congress, Fix Congress First, Mayday.US, NHRebellion, RootStrikers…) built for experimentation might have made for a more contribution to the [semi]free culture world than did a conservatism-inducing (appropriately) license steward (of which there were already plenty). All of which is to say that I’m looking charitably upon Lessig’s many political experiments, including the various novel aspects of his current campaign, though I can understand how they (the means, not the ends of fixing democracy) could be interpreted as gimmicks.

One of my takeaways from Republic, Lost is that the referendum candidacy (Lessig intends to resign after passing one bill, making his candidacy a referendum for that bill) is sort of an anti-gimmick, a credible commitment mechanism, without which any candidate’s calls for changing the system ought be interpreted as hot air. In the book Lessig expresses deep disappointment with Obama, who ran promising fundamental change, which he then failed to deliver or even really attempt, with the consequence of corrupting the non-system-changing reforms he has pushed through (e.g., health care reform contains massive giveaways to drug and insurance industries).

Experimentation with novel commitment mechanisms and anti-gimmicks is great, so I heartily applaud Lessig’s referendum candidacy. But so far it seems to have backfired: the anti-gimmick is interpreted as a gimmick and (not sure if following has been mentioned in press, but is usual response from friends I’ve mentioned the campaign to) the commitment is not taken as credible: it’s still just a politician’s (worthless) promise, power would go to his head, exigencies would intervene, or even if none of this is true, the bill would never pass. On the last bit, Lessig argues that if he won as a referendum candidate, members of Congress would understand the electorate was making an extraordinary demand and pass the bill — they want to be re-elected. Sounds reasonable to me, given the extraordinary circumstance of Lessig being elected without deviation from his referendum platform. The extraordinary circumstance that election would be also seems to me to mitigate the other objections, though less so.

Speaking of power head trips, what about the problem of executive power (thus my preference for calling the U.S. presidency a temporary dictatorship)? Abuse and non-reform thereof has been my biggest disappointment with the Obama administration. I can only recall an indirect mention in Republic, Lost: Congressional deliberation is now rare in part due to members’ need to constantly fundraise, thus, according to a quoted former member, Congress is “failing to live up to its historic role of conducting oversight of the Executive Branch” and “[N]o one today could make a coherent argument that the Congress is the co-equal branch of government the Founders intended it to be.” It does seem totally reasonable that if Congress is non-functional and dependent on concentrated money, the executive branch would also be able to cultivate Congress’ dependency (Lessig does a good job of explaining his use of this term early in the book) and thus thwart Congress as an effective regulator of executive power. I wish Republic, Lost had more on the relationship of Congress and the executive, and related, on Congress and the military/foreign policy/state security complex. To what extent does concentrated money from military contractors, “legislative subsidy” (motivated analysis; a less distracted Congress might make such less needed to the extent it is benign and easier to defend against to the extent it is not) from contractors and the military itself make Congress less able to regulate and indeed eager to go along with disastrous and criminal militarism?

What if politicians could and regularly did make credible commitments to upholding their promises? If the mechanism were not novel and the promises reasonable, perception of gimmickry would largely go away. So would the need for the novelty of a referendum candidacy with a promise of resignation: the referendum would be built in, resignation would be required when a candidate does not uphold their promises, not when they do. Could a stronger commitment be made by a candidate now, without any changes to the law? Would a contract with an intermediary, perhaps a non-profit existing only to enforce candidate promises made to it, be upheld? If politicians upholding their promises is a good thing, shouldn’t a commitment mechanism be built into the law?

Assume for a moment that it would be good for government institutions to make candidate promises enforceable (optionally; a candidate could still make all the hot air promises they wished). We can’t have that reform until the system “rigged” (a term Lessig uses in his campaign, but not appearing in the book) by the need to fundraise from concentrated interests is fixed, because we can’t have any reform until the system is fixed, at least not any reform that isn’t corrupted by having to survive the rigged system. Is it the case that concentrated money in elections is the essential rigging that must be removed before good progress on any other issue can be obtained?

Lessig does make a very good case that dependency of politicians on concentrated money interests is a problem. Three points (among many) stood out to me. First, at the least politicians must spend a huge portion of their time fundraising, making them distracted, relatively ignorant (having to be fundraising rather than studying or discussing issues), and I’d imagine relatively stupid (selection for fundraising tolerance and ability, driving out other qualities). Second, we often go through great lengths to ensure judges are removed from cases in which they have even an appearance of conflict — shouldn’t we want to isolate law makers from even the appearance of corruption just as much, if not more? (Does this not suggest a different reform: bar legislators from any vote in which any impacted party has donated above some very small amount to the legislator’s campaigns?) Third, academic literature on the influence of money in legislative outcomes tends to find little. Lessig argues that this literature is looking for keys under the lamppost because that’s where the light is — it’s easy to look at roll call votes, but almost all of the action is in determining what legislation makes it to a vote.

Intuitively the effect of dependence on concentrated money on agenda setting and thus outcomes ought be large. Is there any literature attempting to characterize how large? I didn’t notice any pointers to such in Rebpublic, Lost, but may have missed them. A comment made late in a forum on Subsidizing Democracy: Can Public Financing Change Politics? indicates that the empirical work hasn’t been done yet, at least not through the lens of the impact on outcomes of various forms of public financing of U.S. state legislature campaigns. But public financing does seem to have big impacts on legislator time dedicated to fundraising, time spent talking to potential voters, and who runs and is elected.

Vying with the brief contrast of demands for independence of judges and legislators for the most valuable portion of Republic, Lost is a brief mention with supporting footnote of U.S. state legislative campaign public funding reforms, particularly in Arizona, Connecticut, and Maine:

Over the past fifteen years, three states have experimented with reforms that come very close to this idea. 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.

References about these, include one by Michael G. Miller, author of Subsidizing Democracy (2014). I haven’t read this book, but I did find a recording of a forum on the book held at New America Foundation, which I recommend — the other commentators provide valuable context and critique.

Spencer Overton’s comments, starting at about 30 minutes, seem to give an overview of leading thinking on campaign finance, in particular three points. First money in politics is not the problem, dependency on concentrated money is, therefore subsidizing small contributions in exchange for opting to accept limits on large contributions is a solution (note this reform steers clear of reasonable free speech objections to simply banning concentrated money). Second, mitigating corruption is a good outcome of such a solution, but increasing citizen engagement in politics is another good outcome. I’m fairly certain Lessig would be in strong agreement with these first two points; he mentions Overton’s work on “participation interest” in Republic, Lost. Third, states (and cities, e.g., NYC) are learning from and improving their reforms: the impacts on candidate and legislator behavior studied by Miller (primarily in Arizona, if I understand correctly) are based on reforms which are being improved. Overton in particular mentioned the value of matching small donations on an ongoing basis rather than only using small donations to qualify for a lump subsidy (note this would make the reforms much more similar to Lessig’s proposal).

The mention of U.S. state reforms is in the “strategies” section of Republic, Lost, in a description of the first strategy: simply getting Congress to pass a reform similar to those already passed in a few states. Lessig dismisses this strategy because lobbyists are a concentrated interest standing in its way. I’m not convinced by the dismissal for three reasons. First, aren’t state level reforms an existence proof? Lobbyists exist at the state level and are a potential interest group. Second, just how concentrated is the interest of lobbyists qua lobbyists? They are paid to represent various concentrated interests, but how well do they support the Association of Government Relations Professionals, renamed in 2013 from the American League of Lobbyists? Do lobbyists as a class suffer from all the usual collective action problems? Admittedly, to the extent they do form a coherent interest group, they do know just how to be effective. Third, can’t success at the state and local level drive cultural change (especially if reforms obtain demonstrably improved outcomes, but even if not they change the culture of the farm team for Congress and eventually Congress, by removing selection pressure for tolerance of and skill at fundraising), making passing a bill in Congress even against lobbying interests more feasible? This path does not have the urgency of a national campaign, but by Lessig’s own estimates such urgency is nearly hopeless, e.g., as mentioned above “wildly optimistic: 2 percent” for a presidential campaign.

Regardless of whether he favored a long-term state and local innovation driven strategy, I wish Lessig had written more about state and local reforms in order to make the case that concentrated money is a problem more concrete and less intuitive and that reforms similar to ones he proposes make the sort of essential difference that he claims (changed state outcomes could help demonstrate both things). Perhaps there was not enough experience with state and local reforms that de-concentrated and added money to campaigns to say much about them in Repbulic, Lost (2011), but is that still the case in the current campaign? I also would have and would appreciate some analysis of the impact of various campaign financing regimes around the world on the campaigns, composition, behavior, and outcomes of legislatures. The sole contemporary non-U.S. legislature mentioned in Republic, Lost is the UK House of Commons, which often deliberates as a body, unlike the U.S. Congress. Is this an outcome of different campaign financing? Lessig doesn’t say. Yes cross-country comparisons are fraught but surely some would be helpful in characterizing the size of the problem of concentrated money and the potential impact of reform.

While I’m on the “strategies” section of Republic, Lost, a few notes on the other three proposed. Recall the first (discussed above) is passing a bill in the U.S. Congress, dubbed “The Conventional Game”. The second is “An Unconventional (Primary) Game” strikes me as classic Lessig — it involves getting celebrities on board (each celebrity would contest primaries for U.S. Congress in multiple districts), and I don’t quite get it. He gives it a “wildly optimistic: 5 percent” chance of working. With that caveat, and a reminder to myself about taking these proposals charitably, it is a creative proposal at the least. I suppose it could be thought of as a way to turn a legislative primary election season into a referendum on a single issue. Crucially for the single issue of campaign finance reform, without the cooperation of incumbents fit for the current system, or as Lessig writes, it would be a strategy of “peaceful terrorism” on such incumbents.

The third strategy is “An Unconventional Presidential Game”, which the current Lessig campaign seems to be following closely.

The fourth strategy is “The Convention Game”:

A platform for pushing states to call for a federal convention would begin by launching as many shadow conventions as is possible. In schools, in universities—wherever such deliberation among citizens could occur. The results of those shadow conventions would be collected, and posted, and made available for critique. And as they demonstrated their own sensibility, they would support the push for states to call upon Congress to remove the shadow from these conventions. Congress would then constitute a federal convention. That convention—if my bet proves correct—would be populated by a random selection of citizens drawn from the voter rolls. That convention would then meet, deliberate, and propose new amendments to the Constitution. Congress would refer those amendments out to the states for their ratification.

In the book, this strategy seems to be where Lessig’s heart is. He gives it “with enough entrepreneurial state representatives” a “10 percent at a minimum” chance of success. A constitutional convention brings up all kinds of arguments; I recommend reading the chapter in Republic, Lost. I include it in this post for completeness, for its reliance on entrepreneurial state representatives (the long-term “conventional game” also does, see above), and most of all for its inclusion of — sortition (random selection)! That is my preferred reform for choosing legislators (and indirectly, executives, including national temporary dictators), removing not only dependence on concentrated money, but dependence on campaigning, which surely also has a strong selection effect, for tolerance of and skill at campaigning, against other qualities. But much like range voting, land value taxation, and prediction markets (and others; let’s see how the new thing, quadratic voting, fares), sortition’s real world use is about the inverse of its theoretical beauty (dependencies at odds with apparent objectives or corruption broadly conceived is probably a big part of the story for each, example; note similarity to my question about broad conceptions of commoning). Oh well. Perhaps de-concentrating money in political campaigns is a first step toward more ideal institutions.

But is it the essential first step claimed by Lessig, before which no other reform can go forward uncorrupted?

In Republic, Lost Lessig does a decent job of turning stereotypical left and right objections into arguments that de-concentrating money in political campaigns is the essential first step. The left objection is that wealth inequality must be addressed first; without doing so the wealthy will always find ways to rig the system in their favor. Turn: you can’t expect to achieve wealth redistribution when the system is rigged by concentrated money from the wealthy. The right objection is that the essential problem is that government is doing too much; reduce the size and scope of government first, then its remaining essential functions (if any) can run like Swiss clockwork. Turn: you can’t expect to reduce the size and scope of government when the system is rigged by concentrated money protecting every grotesque program. I don’t expect these turns will convince many of those strongly convinced that the essential problem is wealth inequality or big government. In small part because it’s not entirely clear, as for lobbyists, that “the wealthy” or “big government” constitute concentrated interests able to use the rigged system to protect themselves from what a dream crisis or candidate of the left or right would do to them. Rather, there are a bunch of different concentrated interests that probably tend to increase upward wealth redistribution and the size of government. Systematic reform would mitigate these tendencies but from the left or right perspective is not ‘striking at the root’ and does not have the feel of urgency of a dream crisis or candidate. If a referendum candidate is an effective vehicle, why not one who promises to hack at the rich or at government, then resign? But for the not entirely committed, perhaps de-concentrating money in political campaigns can be made to seem a good first step, possibly an essential non-revolutionary (that is, not a catastrophic invitation to trolls) strategy.

Another objection to de-concentration of money in political campaigns as the essential first step is lots that ought be construed as reform is not dependent on elected legislatures. Much does not go directly through government. Everything from organizations to culture to interpersonal relationships all have scope for independent reform, which happens all the time. As do other organs of government such as courts and administration. These objections could be turned to apologia for the primacy of de-concentration of money in political campaigns. They explain why one can perceive good reform happening (e.g., marriage equality) when Lessig tells us no good reform is possible until campaign finance is reformed. These independent sources of reform mask just what a poor job the U.S. Congress does. Clearly lots of important reform is dependent on action by the U.S. Congress, and any such reform is wholly blocked or corrupted by having to survive a U.S. Congress dependent on concentrated money, which meanwhile also passes all kinds of anti-reform.

There are numerous reforms which would reduce corruption, capture, and inappropriate dependency which could be taken as objections to campaign finance reform as the essential first reform, or buttress the argument for it, depending on their dependence on a U.S. Congress dependent on fundraising from concentrated money. The Scourge of Upward Redistribution, a recent article by Steven Teles, surveys a number of such reforms, which tend to give regulatory decision makers more resources and push regulatory decisions into more accessible venues, making decisions less dependent on and controlled by concentrated interests. The control is not just about venue, but imagination: broader participation in regulatory decision making could reduce “cognitive capture” or “cultural capture”. (Needless to say all of these reforms have great intuitive appeal, but like campaign finance reforms, cry out for evidence from where similar are now implemented.) Teles does not mention campaign finance reform at all. I wondered whether this was a critique by omission, and found A New Agenda for Political Reform by Teles and Lee Drutman. They consider attempts to get money out of politics and increase participation to have largely failed and to have poor prospects, and argue the essential reform is to give the U.S. Congress more resources. Conclusion:

Convincing Congress, especially this Congress, to invest in its own staff capacity clearly won’t be easy. But neither is it inconceivable. Even small-government conservatives are feeling pressure to do something about the influence of corporate lobbying. Improving congressional capacity is a reform action they can take that would increase their own power, wouldn’t force them to agree with liberal get-the-money-out-of-politics types, and wouldn’t directly cross the corporate lobbying community. For those concerned about the malign influence of corporate power on our democracy, increasing government’s in-house nonpartisan expertise is almost certainly a more promising path forward than doubling down on more traditional reform strategies.

In Republic, Lost Lessig mentions many of the reforms that Teles writes about, and clearly considers dependence on fundraising concentrated money to be the essential blocker and first reform. I don’t know which is “right”. They largely see the same problems of a government controlled by concentrated interests. To the charge of failure and poor prospects above, I imagine that people like Lessig and Overton would respond that they have moved beyond getting money out of politics to getting more diverse money into politics, and beyond getting people to vote and somehow pay attention to getting them to feel more committed through making small and well matched donations. Presumably both sets of reforms are complementary, except to the extent they compete for reform attention.

This brings us to why I don’t like the referendum candidacy, where the referendum aims to fix the “rigged” system, and the referendum candidate resigns as soon as the bill intended to fix the system is passed. Many reforms are needed to fix the system, including those mentioned by Teles, and probably a selection of reforms favored by people who are committed to reducing wealth inequality as well as the power of government in some dimensions. In order to make the first reform resilient, further strengthening of governing and regulating institutions will have to be made, and the context of inequality and arbitrary power changed. Cursory reading of histories of empires in periods of decline show patriotic (in the sense described at the top) reform attempts, occasionally met with a bit of success, but quickly lost. Why would the American empire be any different? There’s no reason to think it might be other than patriotic (in the bad sense) delusion. If a candidate like Lessig were to get a mandate for reform, I’d want them to see it through. Passing one bill to de-concentrate campaign funding might be the necessary first reform, but I can’t see it being sufficient even to ensure the survival of itself, uncorrupted.

The Lessig referendum candidacy’s one bill includes more than a measure to de-concentrate campaign funding though. This measure is bundled with two others (voting rights and election method and districting reforms) under the name Citizen Equality Act. There is perhaps a hint of this in Republic, Lost, where equality of voting is mentioned, but in contrast to the inequality of campaign funding rather than as something needing reform. Now surely there are useful reforms to be made in these areas which would get closer to every voter having equal weight, in terms of access to voting and impact of their votes. But what happened to the one essential reform that must happen before any other than be achieved, uncorrupted? It’s there of course, but why have it share the focus with two good but non-blocking reforms? Here’s what I imagine: concern about inequality bubbles to the top of mainstream discourse, Lessig thinks that he’s got to connect with the equality movement, and comes up with the brand and bundling of “Citizen Equality”. Or maybe campaign finance reform was deemed to be not enough to base on referendum candidacy on, even though it is claimed to be the essential first reform. I have no idea how the Citizen Equality idea came about…but maybe it is a good one. Anti-corruption measures, especially as Lessig defines corruption, seem to largely be consequentialist: we can’t get nice things from a corrupt system (and if one is not careful, anti-corruption measures can be rights violating, even if they achieve good things on net). Voter equality measures on the other hand, seem largely to be about rights: the rights of individual voters, and the ability of minority groups to have a voice through the ballot and protect their rights from the majority. I imagine (surely this is something that has been studied in depth, but I am ignorant) that consequence and rights arguments appeal differently to different voters; a proposal which appeal to both could have better chances of acceptance.

Before closing I have to comment on a few bits pertinent to knowledge policy found in Republic, Lost:

Consider, for example, the case of movies. Imagine a blockbuster Hollywood feature that costs $20 million to make. Once a single copy of this film is in digital form, the Internet guarantees that millions of copies could be accessed in a matter of minutes. Those “extra” copies are the physical manifestation of the positive externality that a film creates. The value or content of that film can be shared easily—insanely easily—given the magic of “the Internets.”

That ease of sharing creates risk of underproduction for such creative work: If the only way that this film can be made is for the company making it to get paid by those who watch it, or distribute it, then without some effective way to make sure that those who make copies pay for those copies, we’re not going to get many of those films made. That’s not to say we won’t get any films made. There are plenty of films that don’t exist for profit. Government propaganda is one example. Safety films that teach employees at slaughterhouses how to use dangerous equipment is another.

But if you’re like me, and want to watch Hollywood films more than government propaganda (and certainly more than safety films), you might well be keen to figure out how we can ensure that more of the former get made, even if we must suffer too much of the latter.

The answer is copyright—or, more precisely, an effective system of copyright. Copyright law gives the creator of a film (and other art forms) the legal right to control who makes copies of it, who can distribute it, who displays it publicly, and so forth. By giving the creator that power, the creator can then set the price he or she wants. If the system is effective, that price is respected—the only people who can get the film are the people who pay for it. The creator can thus get the return she wants in exchange for creating the film. We would be a poorer culture if copyright didn’t give artists and authors a return for their creativity.

I realize this just serves as an example in the context of Republic, Lost, but it’s an appallingly bad one. What risk of underproduction? What does that even mean in the context of entertainment? People love whatever culture they’re immersed in. Individuals have limited attention, massively over-saturated by a huge market. Private tax collection by copyright holders is not the only way to get films made; film making is hugely subsidized (even in the U.S., through location rent seeking), those subsidies could obtain films not subject to private enforcement of speech restrictions. Safety films and government propaganda as the examples of what would be produced without copyright? For government (in particular military/security state) propaganda — watch Hollywood. When not under the influence of offering explanations of how Hollywood blockbusters justify copyright, Lessig and the like celebrate the extraordinary creativity of non-commercial video artists of many forms, uploading countless hours of film superior to safety instruction and propaganda videos. Now presumably there would be many fewer Hollywood-style blockbusters without copyright (incidentally I think a zero was left off the cost figure in the quote, though much of that may be marketing). But a poorer culture? A somewhat different culture, certainly — one in which private censors are not empowered to damage the net, one in which monopoly knowledge rents do not concentrate cultural power, increase wealth inequality, and exclude the poorest from access to knowledge. I don’t expect Lessig to become a copyright abolitionist, and in any case think it is far more useful to advocate for commons-favoring policy than against copyright. But granting the commanding heights of culture wholesale to the copyright industry and narrowing the vision of what the commons can produce is no way to argue for any sort of reform, other than the sort the copyright industry wants.

Elsewhere in the book:

As with any speech regulation, the first question is whether there are other, less restrictive means of achieving the same legislative end. So if Congress could avoid dependence corruption by, say, funding elections publicly, that alternative would weaken any ability to justify speech restrictions to the same end. The objective should always be to achieve the legitimate objectives of the nation without restricting speech.

Apply this to the ends of entertainment production.

This seems like a good juncture to mention a related question: why not free political speech from private censorship? All political speech (by some definition, preferably all speech…but presumably speech paid for by campaign contributions) should be in the public domain. I doubt this would have any significant impact on campaigns or fundraising, but more freedom of speech, especially political speech, seems independently worthy.

A briefer and less bad mention of patents:

Those patents are necessary (so long as drug research is privately financed), but there has long been a debate about whether they get granted too easily, or whether “me-too” drugs get protection unnecessarily.

This seems to be another odd case in which an writer grants more necessity to copyright for entertainment production and less imagination for an alternative than for patents and drug development. Though I’m glad to see the parenthetical above (of course it ought be noted that public money already pays for much of the research, and buys much of the product…), I find the ordering bizarre. The piece I’ve seen similar but even more pronounced recently in is Teles’ The Scourge of Upward Redistribution!

From the “Conventional Game” and “Choosing Strategies” chapters:

These four reasons all point to a common lesson in the history of warfare: You don’t beat the British by lining up in red coats and marching on their lines, as they would on you. You beat them by adopting a strategy they’ve never met, or never played. The forces that would block this bill work well and effectively on Capitol Hill, and inside the Beltway. That is their home. And if we’re going to seize their home, and dismantle it, we need a strategy that they’re sure is going to fail. Yet we need it to win.

Insurgent movements have to fight the war on unconventional turf. If the issue gets decided finally within institutions that depend upon things staying the same, things will stay the same. But if we can move the battle outside the Beltway, to venues where the status quo has no natural advantage, then even small forces can effect big change.

These are exactly why in the space of knowledge policy that commons-based products and commons-favoring policy are so potent, and ought be taken as the primary mechanism of knowledge policy reform. Uncorrupted direct reform of copyright and patents (the standard menu includes things like reducing term lengths and increasing ‘quality’) probably is hopeless without de-concentrating funding of political campaigns (or whatever anti-corruption measure turns out to be the essential first step). Good luck to Lessig. In the meantime, knowledge commons can slowly (far too slowly now, I admit) change the structure of the knowledge economy, create concentrated interests that benefit from commons-favoring policy, and increase policy imagination for what is possible without intellectual property.

I started off claiming that Lessig is the most patriotic candidate for U.S. temporary dictator because he’s the only one putting his preferred issues to the side to fix the institutions of government and make collective action work better. But I have to admit that jingoist patriots (those with some patience anyway) ought also favor Lessig, because those are the qualities that give a nation the capacity to dominate others over the long term, if its constituents have such ugly desires.

12 Responses

  1. Aaron Wolf says:

    I see this stunt as yet another example of Lessig’s well-intentioned but flawed history. He thought he could stop the copyright extension in 1998 with a purely abstract legal argument. He wrote the otherwise excellent “Free Culture” but included pandering to the idea that “piracy” was a legitimate concern and obviously wrong and felt no need to bother justifying that claim. He made CC but included the harmful NC/ND licenses. And now, he’s got the wrong but well-intentioned prescription to something where he, yet again, has the correct diagnosis.

    In this case, the most painfully obvious flaw in his candidacy is his dismissal of Bernie Sanders’ emphasis on this topic. If you watch closely, you’ll see Lessig avoiding the issue in the same way as he avoided grappling with the issues I mentioned above. All he can say about Bernie is that he is “angry” or that Bernie isn’t precisely the referendum gimmick because he does talk about a whole range of policies or that Bernie’s strategy of rejecting Super PACs is overly unilateral disarmament.

    The thing is, this “referendum candidate” thing is as nonsensical in practice as running as a third party in this system. It has far less possibility than even Bernie’s long-shot campaign. It *is* a gimmick. It is a nice idea for discussion but not for practice. At the very most successful, Lessig could reach the significance of being a spoiler candidate splitting the vote of those who support the issue of rejecting concentrated wealth buying elections — which Bernie *has* made *the* central focus of his campaign, and Lessig’s only way to downplay that is to basically just keep insisting that his referendum candidate stunt is the only correct strategy. The unfortunate thing is how wrong is he about this stunt being a sensible strategy at all.

    The correct strategy that should be getting all the focus and resources *does* exist, and it would benefit greatly from the support of Lessig and others: https://represent.us/

  2. Aaron, I agree about the general pattern but think you’re being overly uncharitable here. On Lessig’s writings about copyright (which I did criticize above) and the flaws of CC, consider that he’s a law professor and the context. The profession is cognitively captured by IP; writing on the topic that’s better than his is rare. Most pre-CC licenses for non-software were non-free and all incompatible with each other, and the FSF and Stallman did not call for free-as-in-freedom for non-software works. CC was par for the course, but with better branding and more resources.

    I haven’t watched any speeches or interviews by Lessig or Sanders in this campaign, only read. In https://berniesanders.com/issues/ I don’t see “the issue of rejecting concentrated wealth buying elections” being “*the* central focus of his campaign” (which isn’t exactly the corruption Lessig describes anyway, rather it is rejecting legislator dependence on fundraising from concentrated wealth); looks to me like the “wealth inequality must be addressed first” angle I mentioned above, with a retro campaign finance reform issue (emphasizing overturning Citizens United). Given that (and a bunch of other issues), why expect him to achieve the one essential reform (if we grant that Lessig is correct about what that is)? The referendum thing may well be a distraction from doing so, but running to nudge other candidates including Sanders to move up the essential reform in their priorities seems like a good idea. Lots of people run oddball primary campaigns, even when there are other similar candidates. Lessig’s is way more interesting than most, good for him I say.

    Represent.us and its Anti-Corruption Act may be the correct strategy (I haven’t looked closely), but I’m curious why you are so sure. They were in the ellipsis of the list of projects Lessig has been involved in that’s early in my post. He did and perhaps does support them but apparently backed off some because (IIUC at a glance) they’re including quid pro quo corruption rather than focusing exclusively on dependency corruption, which Lessig sees as the essential first thing to reform.

  3. Aaron Wolf says:

    Mike, to be brief: I’ve followed Sanders since early 90’s. He’s an interesting and admirable, consistent fellow, and I’ve followed his campaign. If you had to summarize Sanders’ campaign it’s: “They *say* that the only way to get elected is to pander to the wealthiest campaign donors; well, they *might* be right, but I’m going to see if it’s *possible* to still win an election by actually focusing on serving the public interest and completely rejecting the influence of the wealth campaign donors!”

    > why expect him to achieve the one essential reform (if we grant that Lessig is correct about what that is)?

    I don’t necessarily expect that. However, I *do* expect Lessig’s campaign to be ineffective. Either Lessig will have very little influence *or* he will split the vote and help Hillary get elected, thus undermining the whole point. The real point is not that other existing campaigns are doing everything perfectly, it’s that Lessig’s referendum candidate idea is bad because he simply cannot succeed at it, it’s too bizarre for most people, and the people most supportive about the issue are already behind Bernie mainly. Lessig looks like a naive pedant when he talks about Bernie not addressing this issue. The only way Bernie could address the issue more strongly is by being the referendum candidate, i.e. refusing to discuss other issues.

    Anyway, last I checked, Represent.us was emphasizing not only direct quid pro quo but also emphasizing public financing of campaigns.

    Lessig has no chance of much success with this. I admire him very much, including his ideas in Republic Lost and all the other work he’s done on this issue. But this strategy is simply the wrong one. It will not work. He’s not running in the general election, he’s running for Democratic primary where Bernie does in fact address this issue fully just not solely. There’s zero people who would support Hillary who will switch to Lessig. He won’t get tons more primary voters to show up. The only effect he will have, if any, is to take away votes from Bernie. And there’s virtually no way for Bernie to be pushed to emphasize this issue stronger because he’s already that strong on it.

    In short: this stunt would make sense *if* Bernie weren’t running and only traditional party insiders were running. To insist that it still makes sense, Lessig talks about Bernie as though he were a traditional candidate. Only he’s not.

    Yes, it’s nice that Lessig and CC acknowledge *some* aspects of license compatibility. But his campaign here is comparable to promoting an incompatible alternative to AGPL just because AGPL isn’t precisely the tactic you want. It’s not going to succeed, but it does fragment the existing efforts. Whereas Represent.us has none of those problems, a much better chance of success, and isn’t just competing with an existing effort.

  4. I enjoy the license analogy, though I don’t think incompatibility is apt, certainly not at this point in the campaign. Another license analogy: Lessig was eventually OK with retiring some of CC’s poorer license creations, now he has retired the referendum candidacy. It polled terribly. Instead:

    I am running for president. I am running with the purpose of restoring this democracy. I will make that objective primary. I will do everything possible to make it happen first, by working with Congress to pass fundamental reform first.

    After we pass that reform, I will remain as president to make sure the reforms stick. I will work with Congress to assure they are implemented. I will defend them against legislative or legal attack.

    But beyond that priority, I would do everything else a president must do, too. Which means I bear the burden in this campaign of convincing America I could do that well. Like every other candidate, I will outline my position on the policies that I would press, once reform is achieved. In every relevant way, my campaign will be like every other campaign—except mine will place democracy first.

    That sounds good, but “once reform is achieved” misses the mark a bit for me.

    But I also look forward to reading the positions he outlines, which I suspect will at least start out closer to something like academic consensus than any other candidate.

    This change now sharpens the difference between our campaign and the others. Now the strongest contrast in substance is the priority that I give to democratic reform. This difference should then press an obvious question for every other candidate: How do you expect to achieve what you are promising without this reform? And if you believe this reform is necessary, then why isn’t it your first priority?

    Good questions. I mostly enjoy them as a nudge toward talking about outcomes, which are what we should be selecting. Beliefs, bet on them.

  5. Aaron Wolf says:

    Interesting news. And it brings up my basic point. Lessig says “if you believe this reform is necessary, then why isn’t it your first priority?” and I believe the correct answer from Sanders is: “it *is* my first priority!”. Obviously every word and detail between Lessig and Sanders isn’t matched. However:

    I think Lessig is doing a *far worse* job of explaining why Sanders’ focus isn’t enough than Sanders is doing at not making this priority clear. In other words, my *primary* complaint is that Lessig is veering toward dishonest in how he *describes* Sanders. I demand that if Lessig wants to be taken seriously, he do a better job of expressing precisely how Sanders is inadequate in his focus on this. Because what I see is Lessig simplistically dismissing Bernie’s dedication to this issue without making his dismissal clear, honest, and convincing enough. You should *not* take Lessig’s word for it that Sanders is inadequately focused, Lessig should have to explain precisely why he comes to that conclusion.

  6. You should communicate your demand to Lessig. An online petition to parallel http://petitions.moveon.org/sign/let-lawrence-lessig-debate might be best. How about it? I gather there’s lots of Sanders fans who find that Lessig has a good point but are outraged that he isn’t just supporting Sanders.

  7. Aaron Wolf says:

    Well, to be precise, the frustration goes beyond Lessig not just supporting Sanders (which I think he should do and should be pushing Sanders to make the message better etc). The frustration is that Lessig has shown a level of almost incompetence in the way he lumps Sanders in with other “politicians”. In the Atlantic article, Lessig boldly makes superficial statements about “politicians” clearly dismissing them all equally.

    Sanders, however, is the *only* candidate raising substantial funds but who neither has a Super PAC nor is himself a billionaire. Sanders is the longest serving independent in U.S. history. There are so many ways in which he is nothing like the rest of the politicians here. Lessig is a well-connected lawyer and professor, not a total political outsider.

    The thing is, I read Lessig’s original AMA on Reddit about his campaign. His responses are so weak and disingenuous. It amounts to him saying “only my weird idea of referendum candidate can work, I reject others because they don’t have my idea.” He sounds like the people I deal with who keep trying to make yet another twist on bounty fundraising and won’t listen to me when I tell them what’s wrong or that bounty sites already exist. He admits recently how tied he was to his idea of resignation after reform and defended it until it was really pushed into his face how nobody would accept it.

    Here’s the links:

    https://www.reddit.com/r/IAmA/comments/3icikb/we_are_larry_lessig_presidential_candidate_maybe/cuf6dzn

    https://www.reddit.com/r/IAmA/comments/3icikb/we_are_larry_lessig_presidential_candidate_maybe/cuf7d7g

    Lessig is comparing Sanders to Obama. That makes me lose a lot of respect for his political perceptions. Obama had *huge* support from bankers and Wall Street and corporations. Obama was always a centrist politician and his actions as president were predictable and were predicted. Sanders is more like a more-electable Dennis Kucinich. He’s as significant as if we had actually elected Ralph Nader. To compare Sanders campaign and its significance to Obama can only come from real naive misunderstanding of who Obama and Sanders are or from being blinded by one’s own ideas and dismissing all critiques.

    The answers in Lessig’s AMA there are so pathetic. He’s making Sanders out to be some straw man to justify his campaign. I’m *sure* Lessig is doing this out of belief in the issue, not for personal gain, but… really, now that he’s dropping the resignation part and planning to run with a platform that includes all sorts of issues… all his comments in that AMA about Bernie apply equally to his own campaign now. He has obviously been confronted with people saying that Sanders already is running this campaign for democracy and that Lessig is *primarily* fragmentation more than anything else, and his answers sound *exactly* like the rationalizing startup people who say think their quirky particular idea is the right one and they’ll pursue it regardless of what anyone says rather than coordinate with others.

    I’m not sure what a petition here would be for. Petition Lessig to recognize that he’s mainly being redundant fragmentation? Petition him to do a better job explaining precisely what’s inadequate about Sanders campaign instead of just saying “look at Obama”? Petition him to drop out and join the Sanders campaign? It’s clear that he’s heard this message but he’s not listening, he’s just pursuing his vision because he’s got himself convinced it’s the only way. Except he’s as wrong today about his chance of success and about downplaying the seriousness of his becoming a spoiler as he was about the resignation concept initially. His values are great, his strategy is not. There’s *zero* chance of him taking votes away from Hillary and little chance of him drastically increasing voter turnout.

  8. Based on “I demand that if Lessig wants to be taken seriously, he do a better job of expressing precisely how Sanders is inadequate in his focus on this” I would suggest a petition with exactly that demand. But based on your subsequent comment, I would suggest a a petition “to drop out and join the Sanders campaign”.

    You write that Lessig is “wrong…about downplaying the seriousness of his becoming a spoiler” … do I take it you think Lessig has a serious chance of persuading enough would-be Sanders voters to instead vote for Lessig and thus cause Clinton to win the nomination? That seems a wildly optimistic evaluation of the Lessig campaign’s potential.

    You seem awfully certain about “*zero* chance” of Lessig taking votes from Clinton. That’s really an amazing claim.

  9. Aaron Wolf says:

    I know many people who (like myself) admire Lessig, many of whom know less about Sanders. Many of those *might* actually vote for Lessig over Sanders without thinking things through more fully or getting to understand Sanders. I think Sanders is *himself* a long-shot still (and I first underestimated the internet significance to Sanders’ campaign, because if this were 8 years ago, Sanders would never reach the majority of his supporters, mass media would continue ignoring him entirely, and I would remain one of the few people who even knows who he is).

    It’s clear to me that Sanders shot at actually winning the nomination remains unlikely. He’s going to need all the support he can get to just barely make it, if he has any real shot at all. So, it’s going to be close enough that Lessig getting 1% or 2% of the vote or something *could* tip the balance enough, and maybe Lessig will do substantially better than that. Maybe he’ll really get substantial support.

    I cannot imagine any Hillary supporters going for Lessig because the primary reasons anyone supports Hillary are because they are huge fans of hers personally, they love that she’s a woman, or they are relatively *conservative* centrists who support Democratic Party insiders and vote for the tried-and-true or they think strategically she is best for beating the Republicans. Some people might not be Hillary supporters but will show up and just for for her because she’s known and they think she’s okay and didn’t really follow the campaign. None of those views will be people choosing to vote for Lessig. 100% of the supporters of Lessig will be people who are up for supporting an outsider who wants to change the way the game works. Someone like that isn’t a voter for Hillary as she is totally in with the banks, big money, corporations, and is an establishment candidate.

    I will grant that there’s a chance that some voters will be anti-Sanders Democrats who just can’t get over the word “Socialism” and some of *them* might go for Lessig over Clinton. I don’t know how much that is, but those are also the voters least likely to show up to a primary election because they aren’t really engaged.

  10. The “many” people who admire Lessig aren’t going to change any outcome, unless he multiplies their numbers manyfold, but those people won’t be like you. I’d bet his name recognition in the general population started out way under 1% and is not much higher than that now.

    Anyway, if it’s feasible for him to get substantial support, that gives him way more leverage than advising anyone’s campaign.

    I’m baffled by your claims of zero chance, 100%, etc, as you usually seem to be a very precise writer. I guess everyone has their weaknesses. People vote for candidates for all kinds of idiosyncratic reasons. Even if you’re adequately characterizing the vast majority of would-be Clinton voters, you’re surely missing some (what proportion we could debate, but I don’t care; it just isn’t zero).

    I don’t expect Lessig to have any impact on the election outcome, even with ditching the referendum strategy (even so, exploiting the campaign to build name and issue recognition seems reasonable). But if he did, I expect it would hurt Clinton by making “corruption” more central to the election. If Clinton has a general weakness, it is perception of something like corruption. If I were her I’d want Lessig to remain unknown, certainly out of the debates.

    https://medium.com/lessig-on-the-issues currently 16 posts, each tied to the first issue. As I wondered about foreign policy above, https://medium.com/lessig-on-the-issues/national-security-foreign-policy-48fa819afb4f concludes:

    Finally, we must recognize the instability that we induce by the very size and nature of our own defense budget. Eisenhower warned of the military-industrial complex. His original term was even better: the military-industrial-congressional complex. That complex creates enormous pressure for us to spend money on weapons of war. It puts enormous pressure on the United States government to encourage or at least tolerate the sale of weapons in contexts that could not induce peace. And it continues to put pressure on our government to spend money in ways that cannot help our long term security. The wars of tomorrow won’t be fought in Bradley tanks, regardless of what the lobbyists say. Which is why, once again, we must pass The First Reform, and secure a Congress free to lead.

  11. Aaron Wolf says:

    > I expect it would hurt Clinton by making “corruption” more central to the election. If Clinton has a general weakness, it is perception of something like corruption. If I were her I’d want Lessig to remain unknown, certainly out of the debates.

    That is an *excellent* point. I think you can basically judge *all* of my concerns and critiques as being based on frustration over how poorly and unfairly Lessig has described Sanders’ campaign. In your one sentence above, you present his position in the election better than anything I’ve heard from him. The way he has *responded* to the questions about Sanders’ campaign has been so lousy, that it makes him seem clueless and out-of-touch in certain regards.

    In short, I was led to feel especially frustrated with Lessig over the combination of his actually believing in the resignation stunt (which was obviously going to fail to connect with people) *and* his mis-characterization of Sanders’ campaign and basically non-answers to people bringing up concerns. I felt that if he was so clueless in those respects and so unreasonably dismissive of these challenges, then I couldn’t see how he was going to have a positive impact. I had expected him to have much more convincing and well-put answers to the sorts of criticisms and concerns people brought up. Instead, he seemed to just rationalize and downplay the criticisms.

    I am guilty of pushing back hard on this, overly hard. I did so because of how disappointed I felt about how Lessig handled these things so far. Thanks for providing your perspective and engaging with me on this. I find your sentence I quoted above quite convincing.

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