There’s a meme spreading fast through the tubes of the Internets about what explains Governor Cuomo’s refusal to debate Zephyr Teachout. Here’s one tweet: 

It’s a fun way to be angry about the outrage of the Governor refusing to debate. But I don’t think this is really about sexism. It’s about money-ism: Zephyr is not entitled to debate the Governor not because she’s a woman, but because she’s a woman without money. (Of course that’s not unrelated). And in this democracy, not to have money is not to be qualified. 

This is the same reality Buddy Roemer confronted in 2012. Roemer was the most qualified Republican running for President. He had been a Governor, he had served three terms in the House of Representatives, and he had run a successful community bank — kind of a Tim Pawlenty, Newt Gingrich, and Herman Cain wrapped in one. But Roemer had made money the issue in his campaign, refusing to accept contributions of greater than $100, and refusing PAC money. He was therefore not qualified to even debate the other candidates. Literally. At first, he was told he had to have 1% national name recognition to be allowed to debate. When he got that, he was told he needed 2%. When he got that, he was told he had to have raised $500k in the prior 6 weeks. Not to have money means not to be qualified.

For Cuomo, the disdain goes even deeper. If this campaign has shown us anything, it has shown us Andrew Cuomo as Richard Nixon. Like Nixon, he believes the word “independent” only ever appears in scare quotes: Nixon appointed an “independent” prosecutor, and then demanded the special prosecutor take direction from Nixon; Cuomo appointed an “independent” corruption commission and then insisted it was “absurd” to say the governor had no power to stop it from investigating him.

But the likeness is even deeper. There’s a meanness that wasn’t as obvious before. And a pettiness. If there’s one thing great politicians are great at, it is the ability to step outside the fight, and treat each other decently. Watch this from the Labor Day Parade:

The man can’t even look her in the face. She’s smiling and open, persistent in her effort to engage him. He acts as if he doesn’t even see her — forgetting that as humans, and all recognize the ‘I’m pretending I don’t see you’ look. 

But even that’s not enough for the Nixon of New York. When asked about the encounter, he just can’t stop himself from playing the part to a tee.

"Why tell the truth? It’s not like she’s rich enough to check me."

There’s a fundamental line that has been crossed, and I fear we’re going to get really angry about it, but not in time. As the story slowly spreads, as the recognition becomes unavoidable, frustration with this “system” is going to overflow. And while the ever-optimists will say, “that’s great, because then we can channel that passion into change later,” I, unavoidably focused, think we should be channeling that passion right now. 

He is our (Democrats) Nixon. Why can’t we make him our Eric Cantor? Because to revive this democracy enough to give anyone under 40 a reason to care would require as much. 

In a literal sense of the word, it is possible. There are more than enough New York Democrats connected to these tubes to defeat Cuomo. And while there isn’t the money in Zephyr’s campaign to orchestrate the television commercials that would rally those Democrats, there is the free and still basically open Internet that Tim Wu defends. That platform is still effectively neutral, and it is still possible for everyone touched by these words to reach ten others, and they ten others, and so on. Until it becomes as obvious as Lincoln that in a democracy, this behavior is unacceptable. Money is not the measure of a citizen. Or a candidate. And anyone who doesn’t get that shouldn’t get the chance to call himself the nominee of the Democratic Party. Again. 

You know 10 New Yorkers. “Talk” to them — while the tubes are still open and basically free. 


Mayday.US has made it to the big time (for us law geeks, at least). Bob Bauer, one of the truly great lawyers of our time, has written a very thoughtful if critical piece about us on his blog. Please read it (and look, I’m making it really easy by linking to it again). Three thoughts in response: 

First: Bob’s piece accurately describes the strategy of Mayday.US — to enter races in a way that demonstrates that the issue of corruption reform can motivate voters. As he writes, “it will strike the impartial observer that [Mayday ads] don’t seem to advance an appreciably richer argument than the run-of-the-mill variety.” That’s certainly true, at least so far. We’re kicking around a plan to incubate content that is much better than the run-of-the-mill variety (so stay tuned to the Mayday.US page). But the single most striking lesson this experience has taught me so far is just how insanely constrain the context of political speech is. A 30 second ad is like 60, maybe 80 words. That is a real and powerful constraint, not necessarily bad, but hard.

But the premise of the enterprise is not so much that we need to persuade, as that we need to mobilize. One the of the truly great memes that the renamed Every Voice has helped push is that the argument is over; people get the corrupting influence of money in politics; and that the only important question now is how to organize to bring about change. So the ads in a particular district aren’t (because they can’t be) in the business of convincing people of something they don’t already believe; the ads are instead about signaling the possibility of reform, as a way to break through the politics of resignation. Their basic message must convey: you know you won’t get [pick your issue — climate change, tax reform, etc.] until we end the corrupting influence of money in politics; so here’s a candidate who has committed to doing that. 

Second: At the end of his piece, Bob raises the progressive anxiety about a project that would support non-progressives too. This is a really helpful point to isolate. The response requires some context. 

Michael Lux tells the story of the early days of the Clinton administration, when, as he describes it, there was a discussion about whether to pursue campaign finance reform or health care. Some in that group argued that they couldn’t get health care reform until they achieved campaign finance reform first. Others thought that politically, it was more important to pursue the substance first. 

I’m not sure which side of that debate I would have been on in (circa) 1993. I know I didn’t care much about “campaign finance reform” then; maybe i should have. But I think reasonable people then could believe that it was still possible to play the system and get real change. Maybe not 100% or maybe not without critical compromises, but the reality of DC politics hadn’t moved to the place that made it impossible to get anything of substance sensibly done. So it could, circa 1993, have been perfectly rational to focus on the substance, rather than on “campaign finance reform.”

What motivates me in this fight — and many others, too — is the belief that that has changed: that we have moved to a state in American politics where nothing sensible, for either the Right or the Left, can happen. That America has evolved, as Francis Fukuyama has put it, a vetocracy (veto-ocracy), which enables powerful interests to veto any sensible substantive reform. 

I believe this is true whether the reform is on the Right or on the Left (which allows me to, in good faith, try to persuade people on the Right and Left that this system is their common enemy even if they don’t share common goals). And the mechanics that make it true are not hard to see, once you focus on the essential dynamic to money in politics today. 

As I’ve written in lots of places, but most recently in Medium, in my view the essential problem with money in politics is not the spending, it’s the fundraising. The corrupting dynamic is not produced by ads on TV; it is produced by the insane dances that candidates go through to induce funders to give them (directly or indirectly) the resources they need to fund their campaigns. When you spend 30%-70% of your time (or as the Huffington Post reported about Michelle Nunn, 80% of your time) raising money from a tiny tiny fraction of America, that tiny fraction has enormous influence within the political system. And the simplest way that influence can be exercised is through an effective veto of reform — again, on the Left or Right. Hence, our vetocracy, a product in part of our Framers checks and balances design no doubt, but made pathological by the way campaigns now raise money. 

So if you believe, as I do, that we will make no sensible progress on any issue of importance until we change the way elections are funded, then Bob’s tradeoffs aren’t actually trade-offs. What are we not getting if we spend cycles trying change the way elections are funded? Nothing, because we wouldn’t get anything anyway.

At a certain point, an intervention makes sense. In my view, we’ve hit that point. Or as candidate Obama put it so effectively in 2007 and early 2008 (see pages 173/4 of Republic, Lost) (free download):  

[I]f we do not change our politics—if we do not fundamentally change the way Washington works—then the problems we’ve been talking about for the last generation will be the same ones that haunt us for generations to come.

But let me be clear—this isn’t just about ending the failed policies of the Bush years; it’s about ending the failed system in Washington that produces those policies. For far too long, through both Democratic and Republican administrations, Washington has allowed Wall Street to use lobbyists and campaign contributions to rig the system and get its way, no matter what it costs ordinary Americans.

We are up against the belief that it’s all right for lobbyists to dominate our government—that they are just part of the sys- tem in Washington. But we know that the undue influence of lobbyists is part of the problem, and this election is our chance to say that we’re not going to let them stand in our way anymore.

[U]nless we’re willing to challenge the broken system in Wash- ington, and stop letting lobbyists use their clout to get their way, nothing else is going to change.

[T]he reason I’m running for President is to challenge that system.

If we’re not willing to take up that fight, then real change— change that will make a lasting difference in the lives of ordinary Americans—will keep getting blocked by the defenders of the status quo.

I think Obama was right then. I think the last 6 years have shown just how right he was. 

Third: Bob emphasizes, subtly, and maybe I’m over-reading this, but it’s a point I’m sensitive to, so I should respond, that Mayday.US is not made up (exclusively) of people in the district in which it is running campaigns. As he writes: 

So it is a “funder-constituent”: it is not made up of constituents defined as residents of the states or districts where it will be active.

He doesn’t say this, but some read back from this that there’s something illegitimate in “outsiders” entering “local” races. Of course, we’re not the only one’s guilty of this crime (if indeed it’s a crime): In the Scott Brown race, 90% of Browns money comes from outside New Hampshire. Some see that as reason enough to reject the intervention. 

I share that view sometimes, but not always. There are local issues, that ought to be resolved locally. But there are also national issues, which any citizen should have the right to engage equally. That was the defense that civil rights activists rightly made when southerners criticized them for intervening in “local matters.” The status of African Americans as equal citizens, those activists rightly insisted, was a national issue. Not, or not just, a local issue.

The same with the corruption of our federal government. It’s our view that as a nation, we have lost an important capacity to govern. If one shares that view, then it’s perfectly appropriate for citizens of America (and those given the same freedoms) to engage wherever in America to try to remedy this corruption. 

That’s especially so in a state like New Hampshire, which of course is salient not just because of a Senate race, but because those same voters will soon be asked to determine which Presidential campaigns are viable. With that privilege comes a certain burden: Like Ohio, or Florida, and unlike Utah and California, they become the target of national politics because of the power they yield. 

Americans of any stripe have common interest in reclaiming a representative democracy. It may be, as Walter Shapiro wrote, that such a reclaiming will need a “massive grassroots movement.” But I think it begins by making it clear that Americans care enough to vote. Because if we see that we do, then that “massive … movement” will be possible. 


On May 1, we launched a project (Mayday.US) to build a superpac powerful enough to end all superpacs, by electing a Congress committed to fundamental reform by 2016. 

When we launched that project, we announced certain principles, the two most prominent being (1) that the project had to be cross-partisan, and (2) the project would (ironically) use the very tools it hoped eventually to dismantle. 

What follows from (1) is that we would be supporting people whose policies on some issues some of us were guaranteed not to like. That’s not a bug in the plan; that’s a feature. It is the test of whether this is a cross partisan movement to see whether we can join to the movement people who genuinely disagree on other important issues. (And if  supporting (financially) people you disagree with was too hard, we gave people the chance to target their pledge. I was enormously happy that only 12% targeted their pledge. 87% left us free to spend the money in “whatever way helps.”)

What follows from (2) is that we don’t believe in unilateral disarmament. There are some great souls from this movement who have tried to demonstrate their commitment to reform by running campaigns in the way they would be run if we had a reformed system — my friend, Buddy Romer, for example, who ran for President as a Republican in 2012, taking no more than $100 from anyone. But not enough of those good souls win. So our view is to support people who have committed to fundamental reform, regardless of how they choose to run for election. If you can win without taking large contributions, good for you. But the objective is to get a majority committed to changing the rules, not a majority committed to living like angels. 

The first stage of this project has been an enormous success. No one — certainly not I — thought we’d get more than 50,000 supporters pledging an average contribution of around $120. Somehow, fortunately, we touched a nerve, and many many have responded. 

Bill Busa, aka DocDawg on Daily Kos, didn’t like our plan. Or maybe he didn’t really understand it. Originally he offered some strong but helpful criticism about how we could more effectively deliver on our commitment to transparency. We met his criticisms by adopting the plan he proposed. I was grateful for his contribution to that. 

But when Bill saw that we were actually going to support Republicans, he went ballistic. In perhaps the most extraordinary email I have ever received from a sane person (an important qualification if you saw my file of crazy emails), Bill issued a threat to the Mayday.US project. Withdraw from the New Hampshire Senate race, or else. (“It’s on” the subject read, though he was kind enough to apologize for “the ultimatum-like nature of this” at the end of the email.)

As I tried to engage Bill on the substance (and not the threat), it was clear at each stage he was charging us with not living up to the standards of a TOTALLY DIFFERENT PROJECT. He demanded I acknowledge the “mistake” in endorsing a candidate who didn’t have the views on immigration that Bill (or I) did. I explained that was not a “mistake”; that was the plan: we are supporting people we disagree with on many issues, because  we agree with them on the fundamental issue — corruption. 

Again he demanded I confess our “mistake” in endorsing Rubens because of his support of the Koch brothers’ (absurd) pledge to oppose a carbon tax. I told him again, that wasn’t our issue, and anyway, (because I care deeply about climate change) I was happy to support the only Republican candidate for senate IN THE NATION to acknowledge the truth of climate science. 

Then again he demanded we confess our mistake because Rubens had signed a no new tax plan. Same response. 

Then again he demanded we acknowledge our “mistake” because Rubens was accepting support from the Kochs (a claim which I’ve not seen substantiated anywhere, but whatever). Here I explained again the no unilateral disarmament principle, which apparently, Bill had also missed. (Bill wrote: “This is a question of whether a candidate receiving your support will or will not continue to seek the support of and ally himself with folks like the poster children for all you oppose: the Kochs. This is the very question you were asking.” (emphasis in the original) But no, that wasn’t “the very question” we were asking. What we are asking is whether it is possible to rally voters to vote for candidates who commit to reform, so that in 2016 we can engage in a much bigger way to win a Congress that will enact fundamental reform. So much has been explained on our site from the start.)

Armed with his conception of what we should be doing, as opposed to what we said we would be doing, Bill has made it his mission to rally the opposition with misleading claims about how we are allegedly misusing the funds we have raised. But that charge is completely baseless: Again, 87% of our supporters indicated we should use their contributions to support candidates who are either Democrats or Republicans. We are abiding by that commitment 100%. I get how the title “SCANDAL!: MAYDAY.US IS DOING EXACTLY WHAT THEY SAID THEY WOULD DO” doesn’t inspire clicks. But it is the truth. 

Criticism is important, as it forces people and projects to live up to their commitments. Bill’s criticism of the way we were meeting our transparency pledge was a good one; it helped us better achieve what we had said we were going to do.

But the criticism of our work based on the view that it supports people the Daily Kos would not is not a good criticism. We are doing what we said we would do. Bill writes “inconsistency is not something I have accused you of.” As someone who has experienced the product of his attacks, I can attest that’s not the impression of his audience — as they think, based on what he has written, that we have indeed betrayed what we said. 

We have not. And as powerful and (so often) right as the Daily Kos is, we’re not going to back down from our support for Jim Rubens, the only Republican candidate for Senate in the Nation to openly and honestly address the corruption in the way campaigns are funded, and to offer his own Republican solution to solve it. About this, Rubens is right, and if New Hampshire Republicans can escape the pressure GOP-HQ, I’m certain more and more of those independently minded voters in New Hampshire will see this too. 


Talk at TEDxKC: Of Course It Matters: Lesterland as the white primary. 


Here we are in the middle of the first bit of the 21st century. “Published” writing happens without endless editing. People make mistakes all the time — sometimes genuine, sometimes machine-induced (great collection of autocorrection fails). So published mistakes are going to happen. 

Should they be “[sic]”-ed? 

To do so feels snarky. But is it? Is not doing so a signal that you don’t see the mistake? 


Walter Shapiro has a pretty nasty piece about the Mayday PAC in Politico (“The PAC to End All PACs Is a Farce”). A few minutes of reaction before I get back to it. 

(I feel particularly awful about the responsibility I may have for this piece. Shapiro tried to contact me before he published it, but the message came just as I was entering the cell phone free zone called New Hampshire for a lecture and a weekend with my family. As it came to me, the message didn’t indicate that he was writing an article for Politico (b/c had I known that I would have driven back to Boston for the chance to talk to him) (the message to me: “for Brennan Center for Justice at NYU School of Law”; topic: MaydayPAC: “very respectful, and supportive of the goal; but has some skeptical/practical questions for you re: the process and the PAC vehicle; has read/heard most of your interviews and blog, but still has questions”) Had I had a chance to talk to him, some of the following errors may have been cleared up. Procedures have changed in lessig-land. No potential interview can now be inadvertently — emphasis on the inadvertently — missed.)

What’s striking about Shapiro’s article is that he declares the project a “failure” even before the project is announced.

We’ve said we’re going to be in 8 races. The aim of the 8 is to provide a portfolio of contexts to help us prove that what DC and Shapiro believe (that Americans won’t vote on the basis of corruption or “money in politics”) is not true. We’ve announced 5 of those 8 races. Shapiro looks at the 5 we’ve announced so far, and declares

it seems impossible for a Super PAC (even one with $80 million rather than $8 million) to make voters care about the rise of Super PACs.”

Who are the “voters” in this sentence? Because if he means voters generally, sure. As we explain in our plan, 2014 is a pilot campaign, which, if successful, is meant to establish the predicate for a much bigger national campaign in 2016. We’re focused on demonstrating something that voters in 8 particular districts will come to believe in 2014, not on the nation generally. 

So if it’s the voters in these 8 districts, what’s the actual evidence Shapiro offers to show that those voters won’t “care about the rise of Super PACS”?

Shapiro leads with Ruben Gallego, the Arizona Democrat who was challenging Mary Wilcox in the August 26 primary. His argument is that Gallego and Wilcox didn’t make this an issue in the campaign, and pointing to incomplete data about our own participation in the race, suggests that we didn’t make it an issue either. But in fact, even though we were in the race for just a couple weeks, we spent 30% as much as was spent in Gallego’s whole campaign. In the lead up to our endorsing him, Gallego made an endorsement of John Sarbanes Government by the People Act. And our ads and mailings emphasized his commitment as part of a new generation of Democrats willing to challenge corporate Democrats (as Zephyr has put it). Whether that messaging was something the voters in AZ-7 “care[d] about” is something to be studied after the election is over. (Oh wait. The election is over. Gallego won, and we’ve already begun the study.)

Shapiro turns next to New Hampshire, where we’ve endorsed Republican Jim Rubens. Once again, based on incomplete data about our spending in that campaign, Shapiro concludes that the issue won’t matter to voters in NH either. Why? Because “no one, with the possible exception of his immediate family, thinks Rubens can win the primary” and because one New Hampshire pollster told him that New Hampshire is no more sensitive to this issue than anywhere else. (I’d like to see the data for that claim, because our data shows something very different). 

The Rubens race is the most difficult race we are (or will be) in. We started 40 points behind. And yes, if we end up 40 points behind, the effort will be a failure. But again, what’s the evidence we can’t move the dial? Even if New Hampshire is no more sensitive to this issue than elsewhere, that leaves New Hampshire pretty damn sensitive to the issue (in polls we conducted last December, we found more than 90% of Americans believe it “important” to “reduce the influence of money in politics.”) That’s apparently not enough for Shapiro, however, and when bundled with the fact that he believes our other NH campaign (Carol Shea-Porter) is not a strong candidate, leads him to conclude that we can’t win in New Hampshire. (Put aside his view about MaydayPAC: The Carol Shea-Porter I’ve seen is as powerful a candidate as any.)

Shapiro then turns to Iowa, where we’ve endorsed Staci Appel against lobbyist-bound David Young. Appel’s campaign, Shapiro argues, isn’t focused on corruption issues because, as he puts it, “candidates and their consultants know what issues work for them politically—and which don’t.” True enough, but that’s whole point of our campaign: to raise issues in a way that the “experts” don’t, so that maybe the next round of “experts” will have a different view about “what issues work for them politically.”

Shapiro calls that “arrogant.” I should have thought it was free speech. I get the perspective of the “experts” keen to tell everyone else to shut up and listen. (“For god sake, behave already!”) But I don’t accept it — especially because there is a vigorous debate among these so-called “experts” about American’s view of this issue precisely. (If you want an introduction to the emptiness of the experts’ claim that Americans don’t care about “process” issues, this great book by Hibbing and Theiss-Morse is a good introduction).

Based on real data, we believe voters in Iowa 3 will support Appel over Young because — in part at least — of her support for fundamental reform. By November, we believe will have shown that with real data. 

Do we believe that based on these campaigns alone, we’re going to “galvanize a national crusade for campaign finance reform.”? Of course not. Not even on these campaigns plus the three others that Shapiro didn’t mention — because he doesn’t know what those will be, even though he seems pretty sure he knows what the results of those three will be too.

What we do believe is that the portfolio of races we enter in this cycle will provide the data that we need to demonstrate (1) that if presented correctly, Americans on the Left and Right will vote on the basis of this issue and (2) that at a feasible cost, a national campaign to elect a Congress committed to fundamental reform in the way campaigns are funded is possible. 

Shapiro says he’s a supporter of this kind of reform. “Billionaires running amok in politics are a terrible outgrowth of Citizens United,” he tells us, and that to match it will take “a massive grassroots political movement or an ongoing scandal that wipes everything else off Facebook and Twitter.”

But there’s no scandal for this kind of corruption — this corruption is in plain sight — so the real question is how one generates a “massive grassroots political movement.”

We’ve sketched a plan. Shapiro says it’s a bad plan. Ok, then, let me embrace the words of the great Jon Snow: “You’re right. It’s a bad plan. [pause] What’s your plan?” 


It has been fascinating and terrifying to stand in the middle of the campaign team talking about the ideal strategy in each of these campaigns. New Hampshire is the most interesting. The instinct/training/expertise of campaign types is to win. The requirement of our shop is to win because of our issue. Our issue is the corrupting influence of money in politics; nothing that doesn’t touch that is therefore fair game for our campaigns. (E.g., there’s a big push by the campaign types to hit Brown on the 2d Amendment. That might win votes among the people voting in the NH GOP primary, but winning on the 2d A doesn’t advance the cause of reform.)

But even within the domain of “fair game” issues there’s a constant argument about how best to frame them. The standard (which I’m reminded again and again is the “tried and tested”) strategy is to attack viciously — as if Scott Brown is the worst of the worst. But our argument is different from that. It’s not that Brown is the worst. It is that Brown is the norm — that’s he’s part of a system that depends upon “cronies” to fund campaigns and then must reward the cronies that fund those campaigns.

So the pitch to NH voters comes to this: We know you don’t like the system as it is. But then what are you doing about it? Because if you don’t vote for candidates committed to ending this corruption, nothing is going to change.

That’s the line in this radio ad I recorded for the race.   

That’s the tone (I hope) in this letter sent today to all likely primary voters. 

image

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You can track all the content we’re producing and distribution at the Rubens’ page on Mayday.us. Eager for feedback, but please remember this: The aim of a campaign is to produce an effective mix of content in an insanely tiny frame. I can get about 150 words in a 60 second ad, and 60 seconds is the max. The way around that restriction is to imagine a mix of material, the sum of which creates the understanding we’re trying to create.

So, in particular, on TV, we’ve got a mix of ads coming. Some are meant to be playful (though serious), like this Gil Fulbright ad: 

But there will be others that address the issues more directly. (And if you’ve not yet seen the full range of Gil ads by Represent.us, you MUST check them out.)


I sent this to the MaydayPAC list: 

Your Mayday PAC is focused on the task of electing a Congress committed to fundamental reform by 2016. I am incredibly excited about the progress we have made so far, and we are keenly focused on making this year a successful first step to that critical goal.
But I’m writing today to ask you to support someone who I believe is the most important anti-corruption candidate in any race in America today — Zephyr Teachout, running for Governor in New York.
This is a one time ask: I won’t ask you again and this is the only person not running for Congress that I will ask you to support. But I wouldn’t make an exception to our “Congress-only” rule if this weren’t important. And this race is critically important. 
Zephyr is running in the Democratic Primary for governor. She is running against Andrew Cuomo — a man who ran for governor on an anti-corruption platform, but who has now made a mockery of our cause. Failing to deliver on his promise to change the way elections are funded in New York was bad enough. But now we have learned that he corruptly influenced his own anti-corruption commission to protect his friends from criticism or embarrassment.[1] 
The story in The Times was bad enough. Cuomo’s response was worse — almost Nixonian: There was nothing corrupt, he said, about him interfering with “his” “independent” (as he called it) anti-corruption commission because the commission worked for him. He was free, Cuomo argued, to tell the world it was “independent,” explicitly saying it was free to investigate anyone, while secretly telling the commission to stay away from leads that might embarrass him. 
That was Nixon’s argument when he told the Watergate special prosecutor to withdraw his demand for the tapes that eventually brought down his administration. It was wrong then. It is wrong now. It shows a stunning blindness to the role of a leader — certainly a self-proclaimed leader of the anti-corruption cause. 
I have known Zephyr for more than a decade. I relied on her scholarship in my own book, Republic, Lost, and I have used her analysis again and again in my talks. She is a tireless fighter for better government. She would make an outstanding governor. And she will stop at nothing to end the corruption in New York government — starting at the very top.
Zephyr needs our help now. The governor has tried to keep her off the ballot by arguing first that the 45,000 signatures she turned in were not enough (state law requires 15,000). Then his lawyers said she wasn’t a resident — basically because she made too many trips to visit her parents in Vermont. A judge has now ruled against the Governor, but he has vowed to appeal the decision. The New York Times has criticized him for his “political bullying” and urged him to take seriously a serious candidate challenging him in a primary.[2] 
The experts say it will be tough to beat Cuomo. But I remember being told how tough it was going to be to raise $1M in 30 days, and then $5M in the next 30 days. That experience taught me one thing: If you give America a plan for fixing their corrupt government, they’ll step up to do it. 
Zephyr is the New York plan. She has exactly the right passion and courage. And we need to support her — as Democrats, if you’re a Democrat, because our party should be better than Andrew Cuomo. And as an American, if you’re an American, because we must take this stand against the cynical abuse of a movement that you have done so much to support. 
Just this once: Please click here to be directed to Zephyr’s donation page. We won’t be collecting the money. We won’t be waging a New York campaign. But we want to do whatever we can to support the most important anti-corruption candidate in the nation.
Please do whatever you can. 

-Lessig
Mayday PAC

[1] The New York TimesCuomo’s Office Hobbled Ethics Inquiries by Moreland Commission, July 23, 2014
[2] The New York TimesGov. Cuomo Should Welcome Zephyr Teachout, August 11, 2014
 
Please support them if you can. 

Cato’s Jim Harper responds to my challenge that he identify any authority for the claim he makes — that content neutral subsidies of political speech violate the first amendment — by refusing to be bound by “modern Supreme Court precedents.” Instead, he insists on precedents from the “1790s, when the Bill of Rights was adopted.”

But notice, his post is still devoid of any authority for his claim at all — beyond his argument (mistaken though it is) that a rebate of one’s taxes is a “subsidy” (embrace your inner Tea Party, Jim: How is a rebate of MY taxes a “subsidy” of anything?), and his assertion that a subsidy of speech violates the First Amendment’s command that Congress not “abridge the freedom of speech.” A subsidy, Harper concedes, doesn’t “abridge speech.” But it does abridge (cue dramatic music) “the freedom of speech.”

If it does, then the Framers of our Constitution (remember, the 1790s, where Harper insists he “lives”) were repeated violators of the First Amendment. 

I suggested in my initial post that the subsidy argument wouldn’t explain the Framers original practice because the whole purpose of the Post Office (the Defense Department (in size) of the original budgets) was to subsidize speech. Harper dismisses this claim: “Come now. Political speech follows commerce and communications, of course.” But I’m not seeing how that is a response to the point at all. I assume Harper thinks commercial speech is speech, protected by the First Amendment. If so, how is “the freedom of [commercial] speech” not “abridged” by subsidy, while “the freedom of [political] speech” is? 

I asked perhaps the best historian on the Framers actual free speech practice, Paul Starr, to review Harper’s claim. Here’s what he sent me: 

In arguing that subsidized speech violates the original understanding of the First Amendment in the 1790s, Jim Harper hasn’t studied the actual practice of government in the early Republic. The federal government subsidized political speech in two primary ways—through general and special subsidies.

The general subsidies came through the Post Office. Newspapers were created by the emerging parties of the 1790s, the Federalists and (Jeffersonian) Republicans, and they benefited both from below-cost rates for sending copies to subscribers and from a right to exchange papers with one another. The latter subsidy allowed for the development of networks of party newspapers and was crucial, for example, for Jefferson’s party in the 1800 election campaign.

The special, or selective, subsidies, came through government printing contracts and government advertising. Cabinet officers as well as legislative majorities used printing contracts and the placement of government advertising to subsidize their own party papers. Because political power was diffused among the different branches and levels of government—federal, state, and local, each with its own means of subsidy—the United States avoided the danger of a centrally controlled press.

The subsidies of the partisan press were, in fact, subsidies for political campaigns. Newspapers in the early Republic were the main way in which parties communicated with their members and the public at large. It was on the basis of this subsidized politics that democratic debate developed in the United States. This was not a subject of constitutional controversy at that time. There is simply no basis to the idea that the Founders would have disapproved of subsidized speech. Many of them were instrumental in creating the subsidies. And if the politics of the new nation had not been subsidized, the public would have been the poorer for it.

tl;dr: “There is simply no basis to the idea that the Founders would have disapproved of subsidized speech.”

Or at least, if there is, Harper has yet to provide it. 


In a twitter flare-up with Jim Harper at Cato, I hashtagged Harper with #Escapethe1990s. In his blog post, Harper says, “I still don’t know what the hashtag means.” Here’s what it means. 

One of the most striking (and frustrating) features about debating the issue of corruption with some on the Right, even the libertarian Right, is the feeling that you’re talking to someone from another century. (As the 1990s are.) Specifically, older sorts, who cut their teeth on the fight against McCain-Feingold and the like, can’t seem to get beyond the arguments they made then against the reform legislation being considered then. Everything is about how awful it is that we reformers want to restrict peoples’ speech. How terrible it is that we want to tax people to subsidize speech they don’t agree with. And how terrifying it is to have the government decide how much either side gets to spend to wage his or her campaigns. Again and again, this parade of horribles gets trotted out to attack whatever reform proposal is being advanced. As if reformers, like these critics from the right, are also stuck in the 1990s.

All this is frustrating because these critics don’t seem to recognize that the proposals they are attacking have in fact been crafted to be responsive to their own criticisms from the 1990s. The critics aren’t so much sore winners, as sour winners, not even recognizing that their argument had force enough to force (at least some) reformers to rethink the architecture of reform. 

This rethinking began with the incredible book by Ackerman and Ayres, Voting with Dollars. Rick Hasen, too, had done powerful work outlining an alternative to the 1990s “restrict speech” model of reform. Groups like Public Campaign have been pushing a non-“restrict speech” solution for years. In short, there was an industry that tried to meet the conservatives’ criticism, by crafting a different form of reform that was in fact responsive to their criticism. Not necessarily because these new reformers agreed with the criticism of the right. But because finding the common ground necessary to build a reform movement is much more important than finding a magic bullet to pierce an opponent’s argument. 

I thought of my own proposal in Republic, Lost, in exactly this way. As I read the critics, the strongest attacks on “campaign finance reform” from the 1990s were (1) that it restricted speech, (2) that it forced people to subsidize political speech they don’t agree with, and (3) that it put the government in the position of deciding how much money each side had to fight their campaigns. Presidential public funding (remember, the funding device that benefited Ronald Reagan more than any other American (giving him a chance to run effectively in 1976, and by the end, funding his 3 national campaigns) did the last two — the taxes of liberals were used to support conservatives, and vis-a-versa, and the total amount each side got to spend was determined by government officials. Those flaws didn’t stop the Supreme Court from upholding presidential public funding in the dreaded Buckley v. Valeo. But they did encourage others to think about reforms that might not fall afoul against even those.

The Grant and Franklin Project was my effort at a conservative-compliant reform. Under this system, all voters would receive a tax rebate of $50 to cover a “democracy voucher.” (I should have called it a “republic voucher,” but ok). Voters could then give that voucher to any candidate who agreed to fund his or her campaign with vouchers or small contributions (up to $100) only. So Grant, $50; Franklin, $100.

Notice (please!) how the voucher program responds directly to all three conservative complaints.

  • First, it doesn’t restrict speech. It expands speech. $50 for every voter is $7B, more than 2x the total raised and spent in the last congressional election. 
  • Second, it does not involve anyone “subsidizing” anyone’s speech. Every voter “contributes” at least $50 to the federal treasury; rebating every voter $50 is thus giving him/her back his/her own money. When someone spends his or her voucher, no one is “subsidizing” that speech. 
  • Third, the government isn’t deciding how much each side gets to run his or her campaign. That’s determined by how many people give their voucher to a candidate. Unlike federal presidential funding, which, after qualification, gave each side the same, the amount of voucher funding each side gets is determined by citizens, not bureaucrats. 

Harper nonetheless rejects this program too. This, too, he says, violates the constitution. It does so, Harper tells us, because 

if your preferred candidate is none of the above, your money will be used to fund political candidates that you don’t support. This is the evil of direct taxpayer funding of campaigns—taking money from a person to support speech of which he or she disapproves.

That’s not technically true. Someone with a voucher is free not to use it at all (and if so, then no one is “taking money from a person” to support anyone). But let’s assume for a second it does, because this is the real ipse dixit of Harper’s reply. Harper says: 

The “democracy voucher” is a tax break that subsidizes political speech, something about which the Constitution says Congress shall make no law.

Notice, of course, the Constitution says no such thing. It says that Congress shall not “abridge” the freedom of speech. More speech is not abridging speech. 

Moreover, there is no rule in our Constitution that says that the government can’t “promote political speech” — so long, at least, as it is content and viewpoint neutral. And for all his hand waiving, Harper can’t point to a single source — either the actual text of the constitution, or an opinion of the Court — that suggests any constitutional problem with such a subsidy. The whole purpose of the Post Office, originally, was to subsidize political speech. And if presidential public funding is constitutional — which was Buckeley’s rule — then a voluntary system that enabled people to spend rebated tax money on a political candidate of their choice, or, if they choose, on no one at all is certainly constitutional. And I challenge Harper to offer one bit of actual authority to counter that statement beyond his “this is the way I wish the Constitution were interpreted” mode of argument. 

No doubt one might argue against a voucher program on the grounds that there’s nothing wrong with the current system of campaign funding. (Good luck with that). Or that it would cost too much. But here’s where I think the Cato finding about “corporate welfare” — ~$100B per year — is so useful. If Cato is right, then if changing the system could reduce corporate welfare by just 10%, we could pay for the voucher program ($3.5B/year) more than two times over. It wouldn’t be money funded “out of debt,” as Harper writes. It would give the government a pretty good way to reduce the debt.

Finally, Harper writes

Professor Lessig has advocated against transparency, though, because it might “push any faith in our political system over the cliff.”

Of course, I have not “advocated against transparency,” though Harpers claim that I have proves the very point my article was making precisely.

Of course, I support vigorous and extensive transparency. The point of my article, however, was the limited utility in transparency because of the “attention span problem.” To understand the information within transparent data will often require more attention than the rational individual will give it — just as to understand the argument of my essay required more attention than Harper gave it. That means that merely making data available isn’t enough to deal with an underlying corruption problem. Transparency may therefore be a necessary condition of any proper political system. My only point was that it isn’t sufficient. 


Great news about MAYDAY.US data (for the very hungry data-mavens). Read the announcement just sent to the list. 


The NYTimes has an incredible story today about Governor Cuomo and his ethics commission.

According to the story, when the commission issued a subpoena to a firm that was related to Cuomo, Cuomo’s aid contacted a commission co-chair and told him, “This is wrong” and then “Pull it back.” The commission then did. 

Cuomo has already marked himself as the reform community’s biggest disappointment — grabbing  reform headlines with an ethics commission that he then hobbled, and then teasing reformers with the promise that he would get public funding of elections passed — only then to sabotage that as well. 

But this — if true — crosses a pretty important line. Many of us saw the tragedy of Eliot Spitzer as just that: a tragedy, because whatever demons led him to his wrongful and hypocritical act, they sapped America of an incredible force for change.  

The corruption here is different — and much much worse. If an aid to the chief corruption reformer in NY has corruptly interfered with a corruption investigation, then NY doesn’t need that “corruption reformer” anymore — because that’s not what he is.

If this charge is true, then this is a governor who believes himself above the law. THAT is the keystone of corruption. 

The Democrats had a chance this year to mark themselves as the party of reform (I hope not too much, or not too exclusively, because reform will only come if supported by Democrats, Republicans and Independents all, but movements need leaders, and it is good the Dems lead). But if this charge is true, then Cuomo destroys the party’s chances here. “Here’s a young, NY ‘reformer,’ in the tradition of not Teddy, but Tammany.” 

If the charge is true, then Cuomo should go: as quickly as Spitzer did, for the hypocrisy here is worse, and so the party can get on to electing its next governor — hopefully this time, one honestly focused on reform. 


A week ago today, we watched as thousands raised more than $1.5M for the #MaydayPAC — a commitment to fundamental reform in the way Congress funds its elections. It was electrifying and amazing, and many of us heard the first fireworks as we crossed our $5M goal. 

But it just so happens that the most important money in politics race this year may not be in Congress, but in New York: Zephyr Teachout is challenging Governor Andrew Cuomo because of his failure to deliver on his promised corruption reform and public funding for state elections. 

If you’re a supporter of the #MaydayPAC, you should be supporting Zephyr and Tim. And if if you’re not a supporter of the #MaydayPAC but still a supporter of fundamental reform of the way money corrupts our politics, you should be supporting Zephyr and Tim. I know both of these amazing souls well. Tim is a former student of mine, and gave birth to the “network neutrality” debate. Zephyr has been an incredibly important inspiration for my own academic work and activism. I met her first when she was working for Howard Dean. 

Today is an crucial fundraising deadline for the campaign. If you can help, please do TODAY. Maybe we can start a weekly anti-corruption rally. Last week #MaydayPAC. This week Zephyr & Tim


Ok, I slept. A lot. For the first time, forever. 

Overflowing my inbox is a single question: What’s next? 

Next is selecting the candidates. We’ve been looking at this for months, but there is tons to think through before we make the choice.

Here’s the simplest first step — though there are many steps after this:

Q1: Is the candidate credibly on the right side of reform.to?

If so, then it is not possible that they’ll be someone we’re trying to remove.

If not, then it is not possible that they’ll be someone we’re trying to elect.

There’s little fudging in the “credibly” qualification: the commitment one way or the other has to be believable. But beyond that, this is a pretty good first step to understanding the universe of possible targets and support. 

In other news, today begins some time away with my family. Can’t wait. 


At 9:30pm ET, 4 July, this happened, and then all of NH started celebrating — with FIREWORKS no less. (I love this state.) #MaydayPAC

At 9:30pm ET, 4 July, this happened, and then all of NH started celebrating — with FIREWORKS no less. (I love this state.) #MaydayPAC



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