Tag Archives: corruption

This is What Judicial Activism Looks Like

When John Roberts was being confirmed as Chief Justice in 2005, he likened his role to an umpire in a baseball game:

Judges are like umpires. Umpires don’t make the rules; they apply them. … I will remember that it’s my job to call balls and strikes and not to pitch or bat.

This was his way of invoking a common conservative trope: that “activist liberal judges” had “legislated from the bench” to create laws that were impervious to repeal through the political process. Roberts was pledging to be a different kind of judge, one who applied the law to the facts the way an umpire applies the rulebook’s definition of the strike zone to the pitch he just saw.

The umpire analogy was always suspect. As Justice David Souter pointed out in his 2010 Harvard commencement speech, cases that can be resolved just by reading the text and applying the facts usually don’t make it to the Supreme Court.

Even a moment’s thought is enough to show why it is so unrealistic. The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Constitutional values, Souter recognized, often “exist in tension with each other, not in harmony.” Resolving those conflicts in a way that stays as true as possible to the spirit behind the Constitution as a whole … that requires a judge, not an umpire.

Souter was in many ways the model of what conservatives didn’t want to see in George W. Bush’s judicial appointments: Appointed by Bush’s father, Souter had drifted into the Court’s liberal wing, the wing that conservatives accused of making up laws. Roberts was promising not to do that. He would stay objective, rather than drifting into liberal activism.

When the Court’s McCutcheon v Federal Election Commission decision came out earlier this month, we saw just how ironically things have worked out. The decision, written by Roberts and building on the Roberts Court’s earlier decisions in Citizens United and McComish, is one more step in his completely original remaking (or rather, unmaking) of campaign finance law. John Roberts has become arguably the most activist Chief Justice in U.S. history.

When you read McCutcheon, the most striking thing is the way that Roberts is talking to himself. The precedents quoted are almost entirely those of the Roberts Court itself, many written by Chief Justice Roberts.

Moreover, the only type of corruption that Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 359. The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U. S. 449, 457 (opinion of ROBERTS, C.J.). Pp. 18–21.

That bright line between quid pro quo corruption (direct bribery, where a campaign contribution is exchanged for a vote or other favor) and the more general buying of influence — and the idea that the Constitution limits Congress to legislate only on the quid pro quo side of that line — is a pure invention of John Roberts. It did not exist anywhere in law or legal tradition before he joined the Supreme Court.

Roberts also cites an older decision, Buckley v Valeo from 1976, but slides over the fact that he is reversing that decision. Buckley was the Court’s response to the post-Watergate rewriting of campaign finance laws. It upheld the part of the law that restricted campaign contributions, but threw out the law’s limits on campaign expenditures. The Court reached this conclusion via an interesting piece of reasoning that Roberts has completely written over: When a candidate spends money on his campaign, he is exercising his freedom of speech, and the government needs a very serious reason to stop him. But when a contributor gives money to a campaign, he is not himself speaking; contributors are exercising their right to free association, which is also a First Amendment right, but one that is not quite so sensitive as the freedom of speech.

In other words, in 1976 money was not speech.

The 1976 Court upheld the exact kind of restriction that McCutcheon throws out: an overall restriction on the amount of money an individual can give to federal campaigns during a two-year election cycle. So McCutcheon is a reversal, though you will struggle hard to find that fact acknowledged in the text. In Supreme Court tradition, reversals are not done lightly. A major reversal like Brown v Board of Education is a historical landmark, and typically happens only as a last resort. (See David Strauss’ book The Living Constitution for an account of all the ways the Court had tried for decades to make sense of “separate but equal” before recognizing in Brown that it just wasn’t going to work.)

If there is one cardinal symptom of judicial activism, reversal-on-a-whim is it. But Roberts does not struggle at all with reversing Buckley, he simply ignores that he’s doing it. And it’s not just Buckley. In Justice Breyer’s dissenting opinion, he quotes McConnell v FEC, the last major pre-Roberts campaign finance case, which upheld restrictions on soft money contributions:

Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote [in exchange for soft money] . . . , Congress has not shown that there exists real or apparent corruption. . . . [P]laintiffs conceive of corruption too narrowly. Our cases have firmly estab­lished that Congress’ legitimate interest extends be­yond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judg­ment, and the appearance of such influence.’

But as Breyer complains, Roberts now quotes Citizens United as if it had reversed McConnell.

Did the Court in Citizens United intend to overrule McConnell? I doubt it, for if it did, the Court or certainly the dissent would have said something about it.

Another major symptom of judicial activism is a judge valuing his own view of reality above that of the legislature. Judges are presumed to be experts in the law. But often a case hangs on not on the law alone, but on facts about the world. Congress can hold months of hearings and require reports from the full apparatus of government, and so is in general better situated to investigate the state of the world than a court is. Within the court system, a district court can spend weeks or months assembling a body of expert testimony, and so higher courts typically defer to a lower court’s findings of fact. In our entire system, no one is more poorly positioned to assess the state of the external world than the Supreme Court.

Non-activist judges realize that.

Lots of reality-based issues enter into campaign finance law: How does corruption really work? How corrupting are various kinds of contributions? How diligently will contributors and political parties look for loopholes in the law? What kinds of legal restrictions are practically enforceable, and which ones require the government to prove intentions that no one can really know? How does the appearance of corruption influence the behavior of voters and the overall health of democracy?

The Bipartisan Campaign Reform Act (BCRA) of 2002 was passed after Congress had assembled massive amounts of testimony and evidence. Moreover, congressmen themselves have direct experience with the temptations towards corruption, and significant interactions with the voters. When McCutcheon came before a district court, that court upheld the law in view of the Buckley precedent, before getting to the evidence-gathering part of the trial. Breyer summarizes:

The District Court in this case, holding that Buckley foreclosed McCutcheon’s constitutional challenge to the aggregate limits, granted the Government’s motion to dismiss the complaint prior to a full evidentiary hearing. … If the plu­rality now believes the District Court was wrong, then why does it not return the case for the further evidentiary development which has not yet taken place?

Why indeed? Is it that Chief Justice Roberts is afraid the facts would get in the way of what he wants to do? Or is he convinced that he already knows everything he needs to know?

Here’s the kind of thing I wish Justice Roberts knew: Last week I was in my home town, where I had dinner with my best friend from grade school. We have argued politics since we were seven, and he is quite conservative today. But we found one issue where we completely agree: No bank should be too big to fail. We agreed that Congress has done practically nothing to fix the financial system after the meltdown of 2008, and neither of us was optimistic that it would.

Why not? Not because the People want banks to be too big to fail. Between the two of us, I believe we represent a fairly broad public consensus on the issue. And not because bankers are delivering sacks of cash to congressmen in quid pro quo exchange for their votes. But the broader influence of big money in politics — the kind that Justice Roberts has placed beyond legal remedy — makes the too-big-to-fail issue unapproachable. Neither I nor my friend is actively pushing for Wall Street reform because … well, what’s the point?

That’s corruption of the political process undermining democracy. And Chief Justice Roberts has decreed that nothing can be done about it.

Occupying the State of the Union

The conventional wisdom about Occupy Wall Street is that it failed. It made a splash and generated headlines, but ultimately it elected no candidates, passed no laws, and didn’t even leave behind a memorable lost-cause proposal like the Equal Rights Amendment. So it was all a big waste of the activists’ effort and our attention.

By contrast, the Tea Party did elect candidates and has influenced all kinds of laws, especially at the state level. Without the Tea Party, the government wouldn’t have shut down last October. You may not consider that much of an accomplishment, but it is proof of continuing influence. The Tea Party may eventually even displace the Republican establishment and take over half of the two-party system.

What has Occupy done to rival that?

But all along, Occupy visionaries like David Graeber were defining success differently:

For the last quarter millennium or so, revolutions have consisted above all of planetwide transformations of political common sense. … What they really do is transform basic assumptions about what politics is ultimately about. In the wake of a revolution, ideas that had been considered veritably lunatic fringe quickly become the accepted currency of debate.

The French Revolution, for example, failed to hold power, “but afterward, institutions inspired by the French Revolution … were put in place pretty much everywhere.” Suddenly, it was obvious that monarchy was obsolete. Not only did people around the globe believe that, they believed that they had always believed it.

Now consider President Obama’s 2014 State of the Union and the responses from Cathy McMorris Rodgers (for the Republican Party), Mike Lee (for the Tea Party), and Rand Paul (who seems to be a party unto himself). Maybe it’s not surprising that President Obama would talk about inequality and how difficult it is to stay in the middle class:

Today, after four years of economic growth, corporate profits and stock prices have rarely been higher, and those at the top have never done better. But average wages have  barely budged. Inequality has deepened. Upward mobility has stalled. The cold, hard fact is that even in the midst of recovery, too many Americans are working more than ever just to get by – let alone get ahead.

But here’s the interesting thing: The responders accepted that framing of the problem, they just tried to shift the blame.*

Bear in mind how conservatives used to respond whenever liberals tried to make inequality an issue: Wealth has nothing to do with poverty. Wealth is conjured out of the aether by creative capitalists, not usurped from the common inheritance or distilled from the blood and sweat of the laboring masses. So talk about poverty if you must, but don’t talk about wealth and poverty in the same paragraph, because they’re totally separate phenomena. This was still the conservative conventional wisdom two weeks ago, when David Brooks argued (in his own italics):

to frame the issue as income inequality is to lump together different issues that are not especially related.

More than just conservative dogma, some version of that argument has been the conventional wisdom of Very Serious People for decades. It has been fine for liberal politicians to talk about the plight of the poor or the struggles of the middle class, but if they combined that downward-looking and sideways-looking compassion with an upward-looking head-shake at the explosion of wealth among the few, mainstream pundits would start lobbing phrases like “class warfare” and “redistribution of wealth” — warning shots that come just before “Why don’t you go back to the Soviet Union, comrade?”.

But post-Occupy, everybody knows about the 99% and the 1%. And it’s no longer anti-American to point out that the 1% (and mostly the .01%) have owned all the productivity growth of recent decades.

Mike Lee’s Tea Party response doesn’t deny any of this, but instead tries to pin it on government and President Obama:

This inequality crisis presents itself in three principal forms: immobility among the poor, who are being trapped in poverty by big-government programs; insecurity in the middle class, where families are struggling just to get by and can’t seem to get ahead; and cronyist privilege at the top, where political and economic insiders twist the immense power of the federal government to profit at the expense of everyone else.** … [W]here does this new inequality come from? From government – every time it takes rights and opportunities away from the American people and gives them instead to politicians, bureaucrats, and special interests.

Rodgers points to the same problems, but calls them by a different names and promises that vague, unnamed Republican “plans” will solve them.

our mission – not only as Republicans, but as Americans, is to once again to ensure that we are not bound by where we come from, but empowered by what we can become. That is the gap Republicans are working to close. It’s the gap we all face: between where you are and where you want to be. The President talks a lot about income inequality. But the real gap we face today is one of opportunity inequality… And with this Administration’s policies, that gap has become far too wide. We see this gap growing every single day.

And this is where the spin becomes obvious, because the metaphor changes: The gap “between where you are and where you want to be” would seem to be in front of you, between you and the people whose examples inspire you to be more successful. Republicans are going to help you bridge that gap, so that you can be rich too.

But as Rodgers gets down to cases, it’s clear she’s talking about a chasm opening up behind middle-class voters, threatening to suck them into poverty as it has already claimed so many of their friends and family:

We see it in our neighbors who are struggling to find job, a husband who’s now working just part-time, a child who drops out of college because she can’t afford tuition, or parents who are outliving their life’s savings. Last month, more Americans stopped looking for a job than found one. Too many people are falling further and further behind because, right now, the President’s policies are making people’s lives harder. Republicans have plans to close the gap.

Even Rand Paul has to recognize the hollowing out of the middle class, though (unlike the others) he sticks to the old-time religion that the rich will save us, if only we let them keep getting richer. (It never worked before, but it will if we give it one more shot.)

Parents worry about their children growing up in a country where good jobs are few and far between. More than ever before, Americans wonder how they’ll afford to send their kids to college, and what will happen if they lose their job. … Prosperity comes when more money is left in the private marketplace. … Economic growth will come when we lower taxes for everyone, especially people who own businesses and create jobs.

Another piece of conservative dogma has been to blame the poor for failing; their laziness, crime, drug addiction, and general irresponsibility is dragging down the rest of us. And if people are falling out of the middle class — losing their jobs, getting their homes foreclosed, failing to send their kids to college — well, that’s their own damn fault. We aren’t failing them; they’re failing us.

Recall the opening shot of the Tea Party’s rebellion, Rick Santelli’s famous rant a few weeks after Obama took office. Backed by a cheering mob of traders on the Chicago Mercantile Exchange, Santelli challenged the new president:

How about this, president and administration: Why don’t you put up a web site to have people vote on the internet to see if we really want to subsidize the losers’ mortgages? Or would we like to at least buy cars and buy houses in foreclosure and give them to people that might have a chance to actually prosper down the road, and reward people that could carry the water instead of drink the water? … [Gesturing to include all the traders***] This is America! How many of you people want to pay for your neighbor’s mortgage that has an extra bathroom and can’t pay their bills? Raise their hands! [boos from the crowd]

Tuesday night no one was blaming the “losers” for falling out of the middle class, or fantasizing about picking the bones of their foreclosures. Instead, everyone sympathized with growing middle-class anxiety: how hard it is to find good jobs, how hard it is to pay for college, how insecure you feel even if you currently have a good job. Everyone acknowledged that Americans are losing faith in the old nostrums: work hard, study hard, say no to drugs, get married, buy a house, pay your bills … it just doesn’t seem like enough any more. You might do all that and still lose out, even as billionaires get ever richer.

Everyone but Rand Paul is acknowledging that some kind of gap needs to be bridged, that some people have more of this vaguely defined “opportunity” that you wish you had. Mike Lee is even denouncing “privilege at the top”, though he blames this privilege on government favors rather than the normal workings of capitalism.

It’s important to realize what we’re seeing: an early stage in the “transformation of political common sense”. People who believed and may still believe that OWS was horribly misguided and failed completely — those same people see the world differently now. The problem isn’t that a few “losers” are dragging the rest of us down. The problem is that there’s a 99% and a 1%. We’re arguing about what caused that and how to fix it, but we all see the problem now.

Thank you, Occupy.


* Ultimately they’ll lose that argument, because the facts are clearly against them. Look at the graphs: This problem didn’t start with Obama. It started in the Carter-Reagan years. If your explanation doesn’t account for that, you’re just spinning.

I explain it by Carter and the Democrats in Congress turning to the right: de-regulation, lower capital gains taxes, free trade deals, and turning a blind eye to union-busting. That all started slowly under Carter and then really took off during the Reagan administration. The long version of this story is in Thomas Edsall’s The New Politics of Inequality from 1985, but William Anderson of the conservative Mises Institute noted the same thing in 2000:

Republicans like to point to the failures of the Carter Administration and then claim that Ronald Reagan brought us into the present era. Alas, while I prefer Reagan to Carter, I cannot say that the above statement is true. Granted, much occurred during the Reagan Administration that was good, but if truth be known, many of the important initiatives that enabled those boundaries to expand came from Carter’s presidency.

I agree completely, if you reverse the value judgments and define “the present era” as the Second Gilded Age.


** Perversely, the purest examples of cronyism are due to a trend conservatives champion: privatizing public services like prisons or public schools.


*** I love the assumption that the well-compensated wheeler-dealers on the CME represent “America” and the people who “carry the water”. I think it’s arguable that American productivity would go up if the Earth swallowed the Chicago Mercantile Exchange whole. The people who really “carry the water” are the ones who grow stuff and build stuff and deliver services. The water-carrier is the single mother who cuts your hair (and who may need Food Stamps to feed her son), not the venture capitalist who conjured up millions by franchising Supercuts.

The Fall of Governor Ultrasound

The indictment, I now realize, is an under-exploited narrative form. Novels have been written in the form of diaries, case notes, and exchanges of letters, but I can’t remember seeing a novel written as an indictment.

It’s got to be an oversight, because the indictment of former Governor Bob McDonnell and his wife Maureen makes the potential clear: Within the constraints of the genre’s just-the-facts style, it still manages to build a sense of character and theme.

As the story begins, Bob and Maureen have risen to a new level, and can see yet another level beckoning, but don’t realize yet that they’re already in over their heads. Bob is the handsome, articulate new governor of what has recently become a swing state, Virginia. The Republican Party chooses him to respond to the 2010 State of the Union. He’s elected chair of the Republican Governor’s Association. He’s even being talked about as a likely running mate for Mitt Romney, who needs to reach out to the Christian Right without alienating the mainstream. And if Bob performs well on that national stage, who knows? He could be president himself someday. (If only he hadn’t backed that forced-transvaginal-ultrasound bill just as the war-on-women meme was starting to take off. Rick Perry did the same thing a year before, and nobody called him “Governor Ultrasound“. Bad timing!)

The big stage is full of important people to impress. But there’s a problem: money. The McDonnells were never rich, and then Bob bought property at the peak of the housing boom. (Bad timing again!) It’s so hard to cast the right image when your investments cost you more in mortgage interest than they generate in rent, and you can’t sell without revealing a huge loss. Where is Maureen going to get the designer gowns she needs for the Inaugural Ball and future formal events? How is Bob going to sport a Rolex or tool around in a Ferrari? How is the McDonnell daughter going to get the kind of wedding that an up-and-coming governor ought to be able to give her?

Enter the rich founder of a dietary-supplement company that (like Bob) seems right on the verge of bigger things. Bob and Maureen didn’t meet him until after Bob became governor, but he instantly becomes such a good friend to them — so nice, so generous; all they have to do is ask, and he provides whatever they need. And he asks so little: if the First Couple could only lend his company their names and images and the backdrop of the Governor’s Mansion, if they could lean on the state universities to do some legitimizing research.

Once the wrongdoing begins, the McDonnells are such clumsy criminals that you may end up feeling sorry for them. (Sometimes a lie can be so obvious that it’s almost honest.) They conspire in email and text messages. They know their stock holdings look suspicious, so they sell in December, fill out the year-end form, and then buy the shares back in January. Who could possibly see through such clever subterfuge?

But don’t worry, Bob and Maureen, a happy ending is on its way. The indictment ends with 14 reasons you should be admitted to a special federal academy, where experienced criminals can teach you how it’s really done.


Is he the right comparison?

Having looked at the indictment, you should also consider the McDonnell’s defense, which claims this is all politics. Some outside observers also say the case “is no slam dunk” because of “the fine line between what is illegal versus what is unseemly”. The point here is that McDonnell made no specific official action as governor to benefit his “friend”: McDonnell didn’t veto a law or appoint somebody to a state office in direct response to a gift. He sold the trappings and influence of the governorship rather than its constitutional powers.

In MSNBC reports on the case, you’re likely to see comparisons to a Democratic governor in jail: Rob Blagojevich, who famously tried to sell the Senate seat Barack Obama left to become president. But a comparison friendlier to McDonnell would be Don Siegelman, former Democratic governor of Alabama, also now in prison.

Or is he?

Like McDonnell’s defenders, Siegelman’s (including 60 Minutes) point out that some elements of the classic bribery story are missing: Siegelman did take an official action (re-appointing to a state board someone who had already served on that board under previous governors), but received no personal benefit (the appointee made a contribution to a fund campaigning to bring a state lottery to Alabama, a policy Siegelman favored).

In essence, both Siegelman and McDonnell claim that they didn’t cross the line between the man and the governor: Siegelman used his powers as governor to pursue his policies as governor, perhaps in an unseemly way. McDonnell used his prestige as a man (who happened to be governor) to reward someone who gave him personal gifts. In each case, the question is whether the law is being enforced in a politically biased way: How many other politicians could we send to jail under the same standards? And is there a partisan reason why we don’t?

Keeping the Con in Conservatism

This week RedState.com founder and Fox News pundit Erick Erickson had an embarrassing plagiarism scandal. No, he didn’t steal somebody else’s attack on ObamaCare or their analysis of immigration reform. On Tuesday Erickson emailed his subscribers a 600-word endorsement of an investment newsletter. He didn’t just forward a link, he wrote in the first person with feeling, and signed his name:

[Mark Skousen] is the most brilliant and accomplished financial advisor I know. … Let’s face it: Making money in Obama’s America is tough — and keeping it, harder still. So we can all use as much trustworthy financial advice as we can get. The best investment advice I know of, bar none, can be found in Mark Skousen’s Forecasts & Strategies — and I urge you to give it a try.

Such sincerity. Clearly, if you trust Erickson’s view of the political world, you should trust Skousen’s view of the financial world.

It sounded just as sincere in 2009 when Ann Coulter sent a virtually identical email out to her subscribers.

Ericson’s defense is also striking: He denies he made money. He’s just “happy to support a friend”. Alex Parene points out the problem here:

If, as Erickson claims, he did not get paid for this endorsement (or, rather, if he wasn’t paid to have his name affixed to this boilerplate get-rich-quick scam email), then his claim to moral purity is that he sold out his readers for free.

If you follow the links, you wind up listening to a video explaining “the elite SS-4 income stream” that “can make you America’s next millionaire” which you’ll learn more about if you subscribe for a mere $99 for the first year.  (BTW, Mark is a nephew of Glenn Beck’s hero W. Cleon Skousen.)

There are, of course, people whose business it is to track the recommendations of investment newsletters and rate how they do. That opinion on Skousen is far less glowing. But what do those people know with their “facts” and “data”? Those are the same kind of people who couldn’t see how the polls were skewed to favor Obama, when actually Mitt Romney was cruising to a win — which he totally would have had if not for voter fraud (that nobody can find any evidence of other than the fact that Romney lost).

The dirty secret of the conservative movement is that this stuff happens all the time, as Chris Hayes pointed out in this tweet:

Now why would he say something so rude? Maybe he remembers Glenn Beck pushing his viewers to buy gold while not mentioning that he was a paid pitchman for Goldline, a less-than-upright gold-selling company. Or that Freedom Works paid Beck and Rush Limbaugh to say nice things about them. And Americans for Prosperity paid talk-radio host Mark Levin. Politico writes:

The increased willingness of non-profits to write big checks for such radio endorsements – which appears to have started in 2008, when Heritage paid $1.2 million to sponsor the talk shows hosted by Hannity and Laura Ingraham – seems to be a primarily, if not entirely, a conservative phenomenon.

Former Fox News pundit Dick Morris came up with a great money-making idea. He sent out fund-raising emails for SuperPAC for America, which spent a pile of that money renting Morris’ email list. So money Morris’ followers sent in “for America” just cycled back into Morris’ pocket. (Similarly, Sarah Palin spent PAC money to promote her book, and even to buy copies of it to give away.) Republican candidates also spent money renting Morris’ list, and (totally coincidentally), Morris praised them on Fox.

And then there was the time the Malaysian government paid American conservative bloggers under-the-table to trash the democratic opposition.

You just don’t see this kind of stuff on the Left, where the standards are simply higher. For example, Fox News host Sean Hannity regularly speaks at fundraisers for Republican organizations and Republican candidates, but MSNBC suspended Keith Olbermann just for writing a check to Democratic candidates. In 2010, Fox News was a nice place for Republican politicians to draw a paycheck while they decided whether to run for president. I will be truly shocked if Hillary Clinton or any other Democratic hopeful gets hired by MSNBC. (Eliot Spitzer is the exception that proves this rule. When MSNBC hired him, who imagined he could ever again have a political career?)

So why is this? Rick Perlstein got into the issue a little deeper a few months ago in a Baffler article The Long Con. He signed up for the email lists of conservative sites like Townhall and NewsMax, and started getting a completely different kind of spam: Not just appeals for candidates and charities, which liberals get too, but get-rich-quick schemes and miracle cures. (He quotes Ann Coulter’s Skousen endorsement, not realizing we hadn’t seen the last of it.)

What Perlstein noticed is that the right/left difference isn’t just in conflict-of-interest standards at the top. It’s a cultural difference that goes all the way down. Conservatism is built out of subcultures like multi-level marketing (i.e. Amway), pyramid schemes, televangelist networks, conspiracy-theory groups (i.e., the John Birch Society), and so forth. (The self-promoting conflict-of-interest stuff goes way back too: The one thing I remember from reading the classic None Dare Call It Conspiracy in high school is that the solution is to expose the conspiracy by buying a bunch of copies of None Dare Call It Conspiracy and giving them to your friends.)

The subject matter may be different, but the thought-patterns are the same. If you believe that evolution is a conspiracy of atheist biologists, then why wouldn’t you believe that global warming is a conspiracy of socialist climatologists? And if a secret cabal can launch a decades-long plan like faking Barack Obama’s birth annoucements and grooming him for the presidency, of course those people would have secret investment strategies that keep them rich without effort. If Cleon Skousen can show you the hidden patterns of history, why couldn’t Mark Skousen reveal the hidden patterns of finance?

Across the board, there is a resentment-of-expertise theme, combined with the myth of the Turncoat Expert, who can let you see behind the facade … for a small fee, of course.


[Little did I know when I started writing this that Salon’s Alex Seitz-Wald was coming out with something on the same topic the same day.]

Food-eaters are not a special interest group

You probably don’t think much about government as you push your shopping cart down the aisle of your local supermarket. But nothing the government does affects your life more often and more directly than food policy. What food is available, what it costs, what’s in it, what you can find out about it, and whether it’s safe — the government has a hand in all of that.

Naively, you might expect a democratic government’s food policy to work out one of two ways: Either food would be hotly debated in every election, or our common interest as eaters would produce a completely non-partisan pro-consumer consensus.

Strangely, though, our government has a pro-food-industry policy which is often anti-consumer, and that policy is hardly ever a major issue. Candidates constantly try to make hay out of invisible threats like Iran’s nuclear weapons program or even completely imaginary ones like the death panels of Obamacare. But when was the last time you heard a politician pledge to do something about the growing rate of salmonella infections?

Obesity and policy. Everybody knows that America has a obesity problem. Because of it, we spend more on healthcare and die younger anyway. But to the extent this issue gets public attention at all, it is framed as an individual character problem — we don’t have the discipline to eat carrots instead of carrot cake — rather than as a problem with the way our food is produced and marketed.

But isn’t it strange how the American character degraded so suddenly since the mid-1970s (when the average American was 18 pounds lighter)? Shouldn’t a major cultural change take longer than that?

The media inundates us with stories about how to diet, but seldom touches the government’s role in subsidizing fats and sugars over healthier fruits and vegetables. Here’s the exception that proves the rule: Peter Jennings’ “How to Get Fat Without Really Trying” from 2003. (Here are the ad-free links for parts 1234, and 5.) Would I have to go back to 2003 to find a major-network piece about dieting?

Free enterprise? Any threat to our current food system is quickly labeled as an attack on free enterprise: If industry produces something and people want to buy it, what’s the problem? If it’s bad for them, that’s their own fault. They should eat something else.

But the current food system has little to do with free enterprise. Michael Pollan explains:

So much of our food system is the result of policy choices made in Washington. The reason we’re eating from these huge monocultures of corn and soybeans is that that’s the kind of farming that the government has supported, in the form of subsidies, in the form of agricultural research. All the work is going to produce more of  those so-called commodity crops that are the building blocks of fast food.

GMOs. As an example, ask yourself: When did you decide to start eating genetically-modified organisms (GMOs)?  Probably you didn’t. Probably you ate products made from genetically modified corn and soybeans for a long time before you realized that you were eating them at all. Maybe you still don’t realize you eat GMOs; but unless you’re totally obsessive about where your food comes from, you do eat them.

That also is due to government policy: Kellogg’s doesn’t have to tell you whether their corn flakes have GMOs. They like it that way, whether you like it or not.

The basic research behind GMOs was funded by governments; the profit goes to corporations like Monsanto. The risks have been passed on to the consumer without anyone asking the consumer. That’s not how free enterprise is supposed to work.

And who knows? Maybe there are no risks. Maybe eating GMOs is as harmless as Monsanto claims. Maybe GMOs aren’t responsible for systemic effects like the collapse of bee colonies.

None of the claims against GMOs have been proven beyond a reasonable doubt. Nor will they be, most likely, because neither government nor industry has much interest in funding that research. (You can bet the research being done at Beeologics won’t implicate Monsanto, because Monsanto just bought them.)

The Farm Bill is a Food Bill. Your power as a consumer is not going to change the food system until your power as a voter makes it changeable. To change food policy, Pollan says, we need to change the Farm Bill that goes through Congress every five years.

But it isn’t really just a bill for farmers. It really should be called the Food Bill, because it is the rules for the system we all eat by. And those rules are really lousy right now, and they need to be changed.

That 5-year process is almost complete now, so the positive changes that are still possible are minimal. Absent a vocal popular movement, food is a perfect issue for lobbyists: The affected industries have a lot of money to spend, and the general public isn’t paying attention.

We’re not going to raise a vocal popular movement in the next few weeks. Most people don’t care and don’t know why anyone thinks they should care. And that’s what needs to change between now and 2017.

I’m still in the process of raising my own consciousness about this stuff, so I can just point in a general direction. (If you’ve got better advice, make a comment.) I’ve just added Food Politics to the list of blogs I cruise regularly. (Worthwhile recent posts pointed me to the report How Washington went soft on childhood obesity and explained where that supermarket sushi comes from.) Suggestions of other blogs/authors/websites are welcome.

The Sifted Bookshelf: Republic, Lost by Lawrence Lessig

In each of our last three elections — 2006, 2008, and 2010 — the electorate called for sweeping change. 2006 was a rejection of the Iraq War, which President Bush then escalated and President Obama only recently managed to end. 2008 was a more general rejection of Bush policies, many of which President Obama has continued. 2010 was a sweep in the other direction, in favor of Tea Party candidates who wanted to slash government spending. That also has not happened, except in fairly small, symbolic ways.

The lesson seems clear: Whether voters look right or left for change, they don’t get it. While it’s wrong to say that there’s no difference between the two major parties, either party’s ability to deliver the change it promises is limited.

Democracy doesn’t seem to work any more. But why?

The problem. Lessig’s book Republic, Lost frames the problem brilliantly. Its essence, he claims, is that our laws ban one kind of corruption, but we actually have a different kind. Obvious as that corruption might be to any reasonable observer, it is invisible to the law.

Our laws aim — and mostly succeed — at stopping quid pro quo corruption. Rod Blagojevich, for example. If you’re explicitly selling political favors for money, you’re clearly breaking the law and stand a good chance of getting caught.

If all quid-pro-quo corruption ended tomorrow, though, you’d barely notice the difference, because a completely different kind of corruption dominates our system: dependence corruption. Politicians can’t get re-elected without big contributions from the same special interests that are asking for favors. They do those favors not in exchange for an explicit pay-off, but to stay on the contributors’ good side. Rather than an explicit I’ll-do-this-if-you-do-that, politicians and lobbyists work on maintaining mutually beneficial relationships.

Lessig describes this by borrowing a term from the anthropologists: Washington isn’t an exchange economy, it’s a gift economy. He quotes 20th-century Senator Paul Douglas:

The enticer does not generally pay money directly to the public representative. He tries instead by a series of favors to put the public official under such a feeling of personal obligation that the latter gradually loses his sense of mission to the public and comes to feel that his first loyalties are to his private benefactors and patrons.

Nothing about that is illegal, and the politicians may not even feel corrupt, because over time their points of view align (like needles in a magnetic field) with the special interests that support them. Who can say whether Senator Inhofe blocks action against global warming out of conviction or because the fossil fuel industry supports his campaign? The Senator himself may not know.

But the effect is identical to quid-pro-quo corruption: Politicians come to represent the Funders rather than the People, and government revolves around their needs rather than ours.

Nicholas Kristof had a tremendous example a week ago: Furniture has toxic fire-retardant chemicals in it, not because they will do any good in case of fire, but because three companies get richer. For another example, see the discussions of food policy and of Tagg Romney’s business career elsewhere in today’s Sift.

Solutions. Lessig recognizes that you can’t solve this problem by enacting stricter rules and putting rule-breakers in jail. It’s systemic; the problem isn’t bad people. People with high ideals are either corrupted or flushed out of the system, and the path of their corruption starts with actions that aren’t that different from what politicians are supposed to do: help constituents and then ask for their help at election time.

But once you have the problem framed correctly — politicians have become dependent on the Funders rather than the People — the possible answers are clear: Either you get the big money out of politics completely, or you find some way for the People to become the Funders.

The first path, where you ban both large political contributions to candidates and large “independent” expenditures like Super-PACs or “issue-oriented” spending by organizations like the Chamber of Commerce or big unions, goes against Lessig’s libertarian/anarchist streak. (He considers himself a liberal now, but was a young Reagan delegate to the Republican Convention of 1980. That younger-self voice still resounds inside his head.)

The problem is that (bad as it sounds to the liberal ear) “Money is speech” is not entirely wrong. If you control money too tightly, you’re going to stop some kinds of speech from getting out. Worse, in a pure public-funding scheme, it’s easy to wind up with a system that institutionalizes the two major parties, gives incumbents a built-in advantage, and makes radical change more difficult rather than less.

Instead, Lessig favors changing the incentives rather than banning spending outright. His Grant and Franklin proposal (named after the figures on the $50 and $100 bills) calls for the government to give each voter a voucher (he suggests $50) that they can contribute to congressional campaigns.

Campaigns can only use the vouchers, though, if they are committed to a fairly low cap on additional individual contributions. (He suggests $100.) But there is no cap on overall expenditures — if you can collect a vast war-chest from small donors, good for you.

In this way, government funding would make small-contribution campaigns competitive while still allowing individual contributors to decide where the money goes. But candidates who want to take larger donations and individuals who want to give them are not criminalized.

At a recent League of Women Voters forum in Concord, MA, Lessig stated the goal like this:

We’re aiming for a world where it’s the broad range of Americans who are contributing.

In other words, the Funders become more representative of the People rather than the special interests.

In addition, he wants to limit (but not eliminate) spending by groups that work outside the candidates’ campaigns. Given the current Supreme Court rulings, that will require a constitutional amendment.

Walking While Chewing Gum. Interestingly, he does not focus on an amendment to undo the Citizens United ruling.

The day before Citizens United was decided, our democracy was already broken. Citizens United may have shocked the body, but the body was already cold.

Because it neither bans contributions nor involves the government in setting spending limits or choosing who gets the money, Lessig believes Grant and Franklin gets around recent Supreme Court decisions, and so it doesn’t put all the eggs into one constitutional-amendment basket.

I think this is wise, and that the examples of the Equal Rights Amendment and Human Life Amendment apply. Constitutional amendments are good devices for galvanizing popular movements, but often the real work gets done in legislation that spins out of the movement, even if the amendment itself doesn’t pass.

Bipartisanship. Often to the annoyance of his fellow liberals, Lessig frames the issue in a bipartisan way: Whatever kind of change your movement wants, liberal or conservative, you won’t get it in the current system.

As the desire for reform grows, the Powers That Be will undoubtedly try to keep it split between liberal reform and conservative reform. But Left and Right recognize a common problem: Concentration of power. The Left sees it as corporate power and the Right as government power. But both sides see the concentration and the corrupt practices that maintain it. The challenge is to come together to fix that corruption, without being divided by fights that would be decided better afterwards, on a playing field more like the republic the Founders envisioned.

Tagg, you’re it

An April NYT story about Tagg Romney’s private equity firm illustrates two points:

  • How the 1% becomes an entrenched aristocracy.
  • How subtly political corruption works.

Tagg is Mitt’s oldest son. Right after Mitt’s 2008 presidential campaign folded its tent, Tagg, a lawyer, and Romney-for-President finance director Spencer Zwick used the campaign’s rolodex of big-money contributors to start Solamere Capital — which describes itself as

A small number of families with broad networks joined together to aggregate their access to top-tier private equity firms, proprietary deal flow, and unparalleled management resources and expertise.

The strategy page of Solamere’s web site has seven bullet points, six of which begin with the word access. The gist: We know the right people, so we get offered deals that ordinary Joes never hear about.

Only the lawyer had any previous experience in private equity, but between the Romney name, the campaign donor list, and an early $10 million investment from Mitt himself, they have raised $244 million from 64 investors and made $16.8 million in fees.

Zwick was simultaneously raising capital for Solamere and PAC money for Mitt Romney’s Free and Strong America — often from the same people. All perfectly legal. Did any of those investors see the son’s company as a way to get in good with the father, a possible future president? Was anybody looking down the road far enough to anticipate Tagg continuing the Romney political dynasty? We’ll probably never know.

George W. Bush’s pre-politics career is a similar story: Contributors to his father’s campaigns repeatedly opened doors for him and invested in his businesses. Was that corruption? Or just helping out a nice young man from a good family?

It seems not to have been classic quid-pro-quo corruption. Nobody has identified any particular favor that the Bushes, senior or junior, did in exchange for junior’s opportunities. But this is one more example of the Washington gift economy. Lobbyist A doesn’t buy the vote of Congressman B; he just does nice things for B, thereby establishing a lasting relationship in which A and B will continue to be nice to each other without breaking any laws. Win/win.

So far, both Solamere and its investors seem to be winning. The firm has made 20% per year for the last two years. (Investments in general have also been up these last two years, though, so it’s hard to say how impressive that is without knowing more. Solamere might get those returns via a high risk/high reward strategy that will burn them in down years.)

But that raises another question: Did Solamere make money because they were cut in on lucrative deals, again, by people who wanted to get in good with a possible future president? Similar suspicions dogged George W. Bush. (The most controversial incident was when Bush Jr.’s company Harken Energy got a surprising contract from Bahrain while Bush Sr. was president, though a WaPo reporter called implications of influence-peddling  “baseless”.) Questions were also raised about the profit Hillary Clinton made in commodity-trading while her husband was governor. (Like everything else about the Clintons, this was investigated to the Nth degree and no charges were brought.)

But even if you assume that everything in Tagg Romney’s career is above board and 100% honest, this is still a story about how the aristocracy reproduces. Tagg hasn’t inherited any of his parents’ hundreds of millions yet. And maybe he never will. Mitt claims he gave away his inheritance from his millionaire/auto-executive/governor father because he and Ann already had “enough of our own”. (Though he did get through school by selling stock his father had given him.)

Tagg is getting rich “on his own” too. Someday he also may claim to be a self-made man, and dismiss his critics as just “envious” of his “success“.

Working for the Man and other short notes

Our 24/7 news media covers fires and hurricanes pretty well, but does a bad job on major stories that develop over decades. Thursday, Salon published an article that deserved major-media attention, but didn’t get it: 21st Century Chain Gangs by Steve Fraser and Joshua Freeman.

What they’re pointing to isn’t news because it isn’t new: NewsOne.com connected many of the same dots in October (Big Business or Slave Labor? What Prisoners Make in Jail). Vicky Palaez (The prison industry in the United States: big business or a new form of slavery?) was on the story in 2008. Nobody noticed then either.

Here are the dots:

  • Compared to other countries, the United States jails an incredible number of people: 2.3 million in 2010, about 25% of all the prisoners in the world. The prison population continues to increase, even as all forms of violent crime are going down.
  • Prisons are increasingly privatized. More people behind bars means more money for corporations like CCA.
  • Through organizations like the American Legislative Exchange Council (ALEC), the private prison industry lobbies for legislatures to jail more types of offenders and lengthen prison sentences. The New Yorker’s Adam Gopnik describes CCA as: “a capitalist enterprise that feeds on the misery of man trying as hard as it can to be sure that nothing is done to decrease that misery.”
  • Increasing numbers of prisoners (about a million, currently) are leased out to private industry. They work for wages that are sometimes less than $1 an hour, and the workers are in no position to complain if they aren’t treated well. The old trend was to move call centers to India; the new trend is moving them to prison.

Victor Hugo’s Jean Valjean was sentenced to row the galleys for stealing a loaf of bread to feed his family. (How else are you going to get people to row galleys?) We seem to be headed back in that direction. Why should companies pay real American wages when they can get real Americans to work for less? And as legitimate jobs dry up (or lose their purchasing power) due to competition from rightless workers at home and abroad, crime becomes more tempting.


An elaborate parody imagines what the Bank of America should say on its web site. The parody comes from Yes Lab, home of the Yes Men.


The Vatican is cracking down on American nuns, who worry too much about social justice and not enough about the culture wars. The solution? Put a man in charge: Seattle Archbishop Peter Sartain.

Nuns need to learn to take their political cues from male leaders like Peoria Bishop Daniel Jenky, who this week compared President Obama to Hitler and Stalin.


I didn’t expect the revolution to be started by Citigroup shareholders.


A USA Today reporter investigating illegal Pentagon propaganda activities mysteriously becomes the target of an info op.


Attack those who are attacking the status quo (as James McWilliams does in “The Myth of Sustainable Meat“) and the major media (like the NYT) will beat a path to your door.  Joel Salatin of Polyface Farms (who you may remember from The Omnivore’s Dilemma) answers.


Slate’s Dahlia Lithwick reports that conservative judges are feeling increasingly unfettered by standing precedents. Bush-appointed Circuit Court Judge Janice Brown recently wrote an opinion calling on the Supreme Court to return to pre-New-Deal interpretations of the law, an issue that ought to be way beyond her pay grade.


An ad by Californians for Populations Stabilization features an attractive and sensible-looking young man making this argument against immigration:

Immigrants produce four times more carbon emissions in the U.S. than in their home countries.

Sounds reasonable, doesn’t it? We don’t hate Mexicans, it’s just that letting them into California is killing the planet.

But where does that argument come from? ThinkProgress traces the 4-fold-increase calculation to a report by the anti-immigration think tank, the Center for Immigration Studies.

Here’s everything you need to know about the Center: They gave the 2004 award for “excellence in the coverage of immigration” to Lou Dobbs, for the same CNN program The Nation summed up as “nightly nativism“.

And here’s the logic of their report:

this study postulates a broad correlation between a person’s annual income and his or her annual CO2 emissions

In other words, immigrants have a bigger CO2 footprint in the U.S. because they make more money here. So this isn’t just an argument for keeping immigrants out of the U.S., it’s an argument for keeping poor people poor.

What if we applied the same logic to other groups? “Don’t create jobs, because the unemployed have a smaller carbon footprint.” or “Raising taxes on the rich will shrink their carbon footprint.”

Or why not go all the way? “We want to cut CO2 emissions by starting a worldwide recession.” But no. In any context but immigration, the message we get from the right is more like this:


Two groups that need help with their messaging. (1) a religious group:

(2) a university (click for bigger image)


I hesitate to link to this because (1) the study sounds very preliminary, and (2) the public got burned so badly by false reports of an autism/vaccination link. But a new study links autism to consumption of high fructose corn syrup.

A dissenting view comes, naturally, from the Corn Refiners Association.


Anders Behring Breivik is on trial for the murder of dozens of teen-agers at a camp run by the Workers’ Youth League of Norway’s Labor Party. A chilling article in the respected journal Foreign Policy sees him as “the tip of the iceberg in a rising sea of radical Islamophobia in Europe.”

The kids were mostly blond Norwegians unconnected to Islam, but Breivik blames the Labor Party for Norway’s increasing multiculturalism.


The Writing Center at St. Mary’s University gets schooled:

Bankers’ Law and other short notes

The long-standing corrupt relationship between Wall Street, the SEC, and the Fed is starting to draw the attention it deserves. More on this next week, but here’s the short version of the recent major developments.

1.Last Monday, a federal judge refused to sign off on a settlement between the Securities Exchange Commission and Citigroup. As Judge Rakoff summarized the suit’s charge: “Citigroup created a fund that allowed it to dump some dubious assets on misinformed investors.” Citigroup made $160 million while the investors lost $700 million.

The SEC had negotiated a settlement under which Citi would pay a $285 million fine, but admit no wrongdoing. No one would go to jail and the settlement would be useless to investors suing to get their money back. The judge ruled that as long as the underlying facts of the case were still in dispute, he had no way to know whether the agreement was in the public interest or not. So the case is headed to trial.

If this ruling becomes an example to other judges, the implications are huge.

2. Massachusetts has filed suit against several major banks for wrongful foreclosures. The NYT says this diminishes the likelihood of a sweetheart deal “comprehensive settlement between the banks and federal and state officials to resolve foreclosure improprieties.”

3. It turns out that TARP was only a small part of the Wall Street bailout. The Federal Reserve also provided big banks with trillions in loans for essentially no interest. By investing that money — often in risk-free treasury bonds — the banks made $13 billion. There’s no meritocratic justification; anybody could have made that $13 billion. It’s better to laugh than cry, so I’ll let Jon Stewart tell the story:

Vodpod videos no longer available.

4. Finally, this doesn’t count as a major development, but one incensed Georgia judge’s rejection of a motion to dismiss a wrongful-foreclosure case makes good reading:

Clearly, U.S. Bank cannot take the [government’s] money, contract with our government to provide a service to the taxpayer, violate that agreement, and then say that no one on earth can sue them for it. That is not the law in Georgia.


Another story that I hope to have more time and space for next week: The National Defense Authorization Act authorizes the indefinite detention of “terrorists” without trial, possibly including American citizens. President Obama still has an opportunity to veto this, and he should.


It took me two weeks to realize I had missed National Feel-Like-an-Idiot Day. On Nov. 21, the New York Times released its list of the 100 notable books of 2011. I’ve read two.


Miniver Cheevy is concerned about his friends who have contracted Ron Paul Fever. This post is intended as a cure.


Fox Business Channel’s Eric Bolling watches the Muppet movie and comes away with this question: “Is liberal Hollywood using class warfare to brainwash our kids?” His guest blames Occupy Wall Street on the indoctrination today’s young adults got from Captain Planet.

Meanwhile, the New York Post describes Happy Feet 2 as “kiddie Karl Marx“.


TPM calls it a sign that the Perry campaign is “on the rocks”, but I find this new Rick Perry ad kind of endearing. The yeah-I-forget-things-but-so-what message might well appeal to the elderly, who are a disproportionate part of the Republican electorate.


So much for Herman Cain. He continues to deny that he harassed or had affairs with any of the women who accused him. But eventually it must have dawned on him that what he had already admitted was damning enough: He repeatedly gave money to a woman his wife had never heard of.

Here’s what makes me nervous: Whenever conservatives accuse liberals of doing something (no matter how ridiculous or unjustified the accusation is) you can be sure they’ll do it “back” to us at the first opportunity. Now they’re saying liberals recruited women to make fake sexual harassment charges against Cain. So that’s bound to happen to a Democrat — if not in 2012, 2014 at the latest.


The Romney campaign’s so-what response to the observation that its anti-Obama commercial is dishonest prompts NYT’s Thomas Edsall to give a recent history of legal-but-corrupt political practices, illustrating the pattern: “What was once considered sleazy becomes the norm.”


When an inexperienced farmer signs a complicated gas-drilling lease with a company that does this every day, who is likely to get the advantage? According to the NYT, gas leases often say more than the farmers realize.


Finally, I want to use the occasion of Barney Frank’s retirement announcement to once again denounce the zombie lie that somehow government regulations caused the housing bubble and the subsequent meltdown.

AlterNet’s Joshua Holland covers the details, but it comes down to two points:

1. “No bank was ever ‘forced’ – or coerced or incentivized by the government in any way – to make a bad loan.”

2. Forget “bad” loans, subprime loans, and so on — the entire mortgage market was only $1.4 trillion. If that was really the problem, TARP could easily have solved it by buying half of all the mortgages in the country.

No, the problem was the $140 trillion of unregulated financial instruments that Wall Street created out of those mortgages. Barney had nothing to do with that.

ConConCon: Can the Grass Roots Find Common Ground?

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?