Tag Archives: corruption

The Sifted Bookshelf: Republic, Lost by Lawrence Lessig

May 28, 2012 – 12:51 pm

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.

By weeklysift | Posted in The Sifted Bookshelf | Also tagged | Comments (5)

Tagg, you’re it

May 28, 2012 – 12:32 pm

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“.

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Working for the Man and other short notes

April 23, 2012 – 10:27 am

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:

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Bankers’ Law and other short notes

December 5, 2011 – 1:10 pm

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.

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ConConCon: Can the Grass Roots Find Common Ground?

October 3, 2011 – 12:58 pm

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?

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