The Weekly Sift

I think the fundamental problem in American politics is the corruption of our political system. It’s a corruption that makes it impossible for the Left to get what the Left wants and the Right to get what the Right wants. — Lawrence Lessig to Cenk Uygur at the ConConCon

Left and Right alike have proposals that poll well, but never make it through Congress: taxing the rich and a public option for health care on the Left, a balanced budget amendment and (in some polls) harsher immigration policies on the Right. The grass roots on both sides object to corporate personhood (79% in one survey) and were appalled when their government responded to the 2008 financial collapse by dishing out money to the same bankers who had screwed things up.

Originally designed to be the People’s voice, Congress has become a bottleneck controlled by special interests. Consequently, Left/Right political competition has only a limited amount of meaning. No matter how many seats either party wins, we won’t see single-payer healthcare (Left) or a flat tax (Right).

On the other hand, some ideas with little-to-no public support get through Congress easily. Lessig’s favorite example is the Sonny Bono Copyright Act of 1998, which extended the life of copyrights issued since 1923 — keeping valuable characters like Mickey Mouse and Superman out of the public domain. Copyright is a temporary monopoly that the government grants to encourage creativity, but extending the copyright of works that already exist serves no public purpose whatsoever. (“No matter what the US Congress does with current law,” Lessig observes, “George Gershwin is not going to produce anything more.”) The extension, amounted to a gift from Congress to Disney and Time Warner, who lobbied for it like 10-year-olds in December.

So who gets what they want out of Congress? Lessig calls them “the Funders” — the entities that finance political campaigns. And how can the People change the system to regain control of their government? By getting Congress to pass new laws or Constitutional amendments?

Good luck with that.

That’s the origin of this idea: Without minimizing the significance of their philosophical differences, can grass roots from the Left and Right come together in a campaign to make democracy meaningful again?

Tea Party? Lessig’s Rootstrikers organization explored this idea by getting together with Mark Meckler’s right-wing Tea Party Patriots to co-sponsor a discussion of a way to end-run Congress and fix the system another way: via a constitutional convention called by the States. Hence the Conference on the Constitutional Convention held in late September at Harvard Law School. (I “attended” via the live feed on the Web. I had hoped video of the sessions would be posted by now, but they aren’t. Consequently, all quotes are from memory or my hastily scribbled notes.)

I find that whenever I mention this co-sponsorship, people jump to the conclusion that the goal must be to generate some kind of homogenized, centrist agenda. To explain, I came up with this metaphor: Imagine two swordsmen dueling over a great prize. While they swashbuckle their way around the arena, focused on each other, somebody else walks past them, calmly stuffs the prize into a sack, and walks out.

The duel is real, but it becomes pointless if the swordsmen can’t ally to protect the prize.

The Civics of Article V. The possibility of a constitutional convention is embedded in the Constitution itself.

on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments

Once proposed by the convention, amendments would follow the same ratification path as constitutional amendments approved by Congress: They’d have to be ratified by 3/4ths of the states — 38 of the current 50. So any 13 states could block any of the convention’s amendments.

Because this would be an orderly process authorized by the current Constitution, speakers began referring to it as an “Article V convention” rather than a general constitutional convention that could spring from nowhere and make up its own rules. (The hallowed convention that produced our current constitution was unauthorized by the Articles of Confederation that it replaced. In particular, the Articles said that any change had to be approved by all 13 states. But the new constitution wrote its own rules and said it would go into effect if only 9 states ratified it.)

Article V is about as vague as the rest of the Constitution. But since no such convention has ever been called, Article V has two centuries of rust on it rather than the reams of precedent and case law that interprets most constitutional provisions. So there are a lot of open questions, which the ConConCon’s legal panel spelled out:

• How do 2/3rds of the states “apply” for a convention? Every now and then, some legislature passes a call for a convention to consider such-and-such an amendment. If you total all those up, we’ve already had calls from more than 2/3rds of the states. But the general opinion is that the state’s applications have to be similar in some way; they have to be calling for the same convention, not just a convention. How similar do they need to be? Lessig proposes that states pass similar wordings that call for a convention in general, and then (in a second clause) urge the convention to consider the particular amendments popular in that state.
• What if Congress ignores the applications? A lot of the Constitution assumes that people will act in good faith, and doesn’t specify what happens if they don’t. For example, the 12th Amendment specifies that (in the presence of Congress) the President of the Senate counts the votes of the Electoral College — the final step in electing a president. What if Senate President counts the votes wrong and declares himself president? All Hell breaks loose, I think.
  Similarly, what if Congress looks at the States’ applications for a constitutional convention and says, “Not gonna happen”? Or calls a convention under rules that make it unworkable? It’s not clear that anything other than public furor keeps Congress in line.
• How do the conventioneers get chosen? Maybe that’s defined in Congress’ call. If not, nobody knows.
• What if the convention breaks the rules set out in Congress’ call? Again, we’ve got a good-faith issue. Probably nothing happens; if 3/4ths of the states go ahead and ratify the amendments anyway, they become part of the Constitution.

Runaway conventions. The big question everybody asks is: What if a “runaway” convention goes wild and designs some whole new country for us? What it declares a socialist republic or a Christian theocracy or something?

The simple answer is that 13 states refuse to ratify it and the whole plan goes into the dustbin of history. There are at least 13 blue states and 13 red states, so nothing could pass without bipartisan support.

This only gets tricky if the convention does what the original convention did: writes new ratification rules for itself. (Example: What if the new constitution says it will be ratified by majority vote in a national referendum?) Then you get into the fuzzier question of legitimacy: At some point the country just ignores the process and the old government continues.

What a convention could do. The consensus of the legal panel was that constitutional amendments should be about the mechanics of government, and that more specific proposals (like Prohibition) are better left to legislation that can be easily repealed if it doesn’t work.

But the Supreme Court has boxed us into a situation where the corruption of our system can’t be rooted out without constitutional changes. So we should be looking for structural changes that make legislative change possible.

In particular, Lessig wants public funding of campaigns, through a voucher system similar to the one Ackerman and Ayres proposed in Voting With Dollars.

Fear of democracy. Lessig argues that the fear of a runaway convention results from an underlying fear of democracy and fear of each other, which the Powers That Be encourage and profit from. This is backwards, he argues: The Powers That Be (and not our fellow citizens) have proven that they’re not to be trusted.

We are used to a managed democracy, where the People only choose after the options have been very tightly scripted. (As Cake put it: “Some people drink Pepsi, some people drink Coke. The wacky morning DJ says democracy’s a joke.”) A constitutional convention would be deliberative, not managed. The conventioneers would have real responsibility, and a chance to shape the questions rather than choose from a prepared list of answers.

Lessig has faith in the deliberative powers of ordinary people, and supports Sandy Levinson‘s idea that the best way to choose conventioneers would be randomly, as juries are chosen. (The one jury I’ve served on supports his case; we rose to the occasion and did a good job.)

You got a better idea? Even Lessig is not wild about a ConCon. He’s been driven to it by the failure of everything else. Would it work? Or would it be taken over the same forces that distort the rest of our political system? Would it all come to nothing or produce some crisis of legitimacy?

He doesn’t know. But he doesn’t think we can keep doing what we’re doing.

Lessig’s keynote address was one of the most inspiring speeches I’ve ever seen. Unfortunately, the most inspiring part was in the question session, which that link doesn’t include. I’ll try to fill in from my notes and from a similar talk elsewhere.

This is how he answered the will-this-work question. First, he admitted that it probably wouldn’t. But then he asked:

If a doctor told you that your child had terminal brain cancer and there was nothing you could do, would you really do nothing? Just look at the doctor and say OK?

No you wouldn’t do nothing, because that’s what it means to love: to have the willingness to act compassionately for something, even if it seems impossible.

I am acting on the faith that all over America there are people who have this kind of love of country.

It is very rare to hear a liberal grab hold of the patriotism theme like this, and to attach it to having the courage to trust each other rather than the vicarious “courage” to send soldiers into somebody else’s country. I got shivers. It’s a powerful emotional argument.

But it also makes sense. If we can’t trust each other, then we can’t be a democracy. Where does that kind of thinking lead?