Sunday, July 19, 2009

Lawrence Lessig and the United States Congress

Lawrence Lessig has a knack for bringing abstract legal theory into the realm of the everyday. Generally, he speaks (or writes) and I understand. But one at one significant point, he stopped making sense. That is until recently when I finally caught up with his thought process.

The point where his words became incoherent to me was on June 19, 2007 when he posted on his website a statement entitled "Required Reading: the next 10 years". In which he writes:

From a public policy perspective, the question of extending existing copyright terms is, as Milton Friedman put it, a "no brainer." As the Gowers Commission concluded in Britain, a government should never extend an existing copyright term. No public regarding justification could justify the extraordinary deadweight loss that such extensions impose.

Yet governments continue to push ahead with this idiot idea -- both Britain and Japan for example are considering extending existing terms. Why?

The answer is a kind of corruption of the political process. Or better, a "corruption" of the political process. I don't mean corruption in the simple sense of bribery. I mean "corruption" in the sense that the system is so queered by the influence of money that it can't even get an issue as simple and clear as term extension right. Politicians are starved for the resources concentrated interests can provide. In the US, listening to money is the only way to secure reelection. And so an economy of influence bends public policy away from sense, always to

He continues on to make his defining statement:

I have decided to shift my academic work, and soon, my activism, away from the issues that have consumed me for the last 10 years, towards a new set of issues: Namely, these. "Corruption" as I've defined it elsewhere will be the focus of my work. For at least the next 10 years, it is the problem I will try to help solve.

I do this with no illusions. I am 99.9% confident that the problem I turn to will continue exist when this 10 year term is over. But the certainty of failure is sometimes a reason to try. That's true in this case.

If you are anything like me, Lessig's statement went right over your head. It did for me for a number of reasons. First, "corruption" is such a broad term that it doesn't effectively convey Lessig's intention without context. Second, the context provided by Lessig is only tangentially related to any of his academic and public work. Finally, I've followed Lessig's work because it has interested me, but now there will be a vacancy in the public discourse concerning Copyright, Patent, and Trademark Law. This imminent void distracted me from the context he provided for his future direction.

So what was Lessig actually tying to say?

Generally, by "corruption", Lessig means the disproportionate influence that those with enough money have over the legislative process in the USA compared to collectively all other Citizens and constituents that are to be represented by Congress. Lessig wants to address this discrepancy as best he can.

Almost a year after he made his defining statement about shifting his focus, Lessig, with some help from others, started, a project to support what Lessig considers a first step toward a more equitable system; to institute a publicly funded campaign option that allows qualifying candidates for national office to receive matching campaign funds from the US treasury thereby providing a fair chance to win primary and general elections against a corporately or self funded candidate. A candidate would be able to choose to accept only small donations from the public along with matching funds or special interest money, but not both.

Lawrence Lessig probably does a better job at explaining the concept in the video at and on the information page.

According to Change Congress the first step to change takes the form of the Fair Elections Now Act as proposed in the Senate and House in the following bills:

The 111th United States Congress (January 3, 2009, until January 3, 2011):

S752 - Applies to Federal Election Campaigns for the Senate

H1826 - Applies to Federal Election Campaigns for the House of Representatives

I can't think of any reason that might indicate that these bills would not effectively alter the economy of influence currently controlled by corporations and the most wealthy of Americans in favor of everyone else. Nor can I think of a better idea to try first. I do know that there is a fundamentally inequitable balance of influence that encourages Congressional Representatives to consistently vote against best interests of their constituents against all other reason and logic. The Fair Elections Now Act is the only practical option I know of to compensate, even if only partially, for the existing imbalance of influence. I'd love to hear other ideas both complimentary and rebuttals. Which is why I'll continue to follow Lawrence Lessig's posts.

To take the idea of publicly funded campaigns further, I think it might be applied in New Jersey to all levels of government. However, the potential for corruption is more limited at smaller levels of government. Maybe it is only appropriate on a state level. I don't know who to talk to about this. I doubt that I'd be able to start a grassroots effort to effectively promote this idea. But I'll keep it in mind and research the issue until I can demonstrate a good case for New Jersey to adopt similar policies. Until then, this idea will exist isolated on my weblog....


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