[Note the cool news reported after this was published here.]

So this has been a week from Apple hell. Apple did a major upgrade of its suite of software — from the operating system through applications. Stupidly (really, inexcusably stupid), I upgraded immediately. Every Apple-related product I use has been crippled in important ways. 

I’m going to describe the crippling I have discovered so far, and some pointers to the work arounds that I’ve found. But that’s not the purpose of my writing. My purpose instead is to say what should be obvious: Apple deals with us in a psychologically pathological way, and if that doesn’t change, it’s time to leave.

Many will say, with perfect justification, that it was time to leave long ago. For example, my Free Software friends will say that the failure of Apple to respect Free Software was reason enough to dump them long ago. That’s a fair criticism (of me) and a principled and justified position.

But the argument I want to advance here is different. It is that in the “hybrid economy" that the Internet is, there is an ethical obligation to treat users decently. "Decency" of course is complex, and multi-faceted. But the single dimension I want to talk about here is this: They must learn to talk to us. In the face of the slew of either bugs or "features" (because as you’ll see, it’s unclear in some cases whether Apple considers the change a problem at all), a decent company would at least acknowledge to the public the problems it identifies as problems, and indicate that they are working to fix it. 

Why is that what decency requires? And why, then, is the pathologically constipated way in which Apple communicates with its customers indecent? 

Because when you see the incredible effort that is being devoted to dealing with these either bugs or features, there is an obvious incredible waste of time and resources that Apple could avoid simply by saying what they know.

For example, if the problem I have confronted with Mail.app using Gmail (which I describe more below) is something Apple considers a bug, then I’m willing to live with it for a while till Apple fixes it. If it isn’t a bug, but is a feature (insanely but whatever), then I will spend the time (and incredible bandwidth waste) to deal with the problem in the way the Apple volunteers suggest — either by changing the way Gmail works, or getting a new mail application.

So in a line, it is indecent for Apple to sit by silently while its customers waste thousands of hours (in the aggregate) trying to deal with the problems its “upgrades” create, when the simple act of describing what it intends to fix could save its customers those thousands of hours.

And more generally, that at some point — and for me, now is this point — if Apple can’t think different(ly) about its refusal to talk, then its customers should use the only real power we have: We should leave the Apple platform. 

The problems so far

I live on the Apple platform. I have two offices at work, each has a machine which (through Dropbox) is essentially identical. I also have a laptop which I use to make the 70+ presentations I make every year. That machine (again through Dropbox) is essentially identical to the two work machines, except that in addition, that machine has the presentations I make, and the resources I need to make those presentations. I also have an iPhone, as do others in my family. And we have an AppleTV. 

The iPhone problems: The first, and most destructive consequence of the recent round of upgrades was to my iPhone. Basically, and as I have described elsewhere on this blog, the upgrade to 7.0.3 disabled my Wifi. Through the Apple support community, I quickly identified that this was a common problem for many (though not all) iPhone users. I spent the time necessary to try to recommended solutions — resetting network settings; when that didn’t work, backing up, resetting the machine, setting up the phone as a new phone; still didn’t work. After not seeing any indication by Apple about whether this was a transitory problem (one they were going to fix) or not (indeed, whether or not it was a hardware failure that could not be fixed by software anymore), I called Apple support. Actually, I chatted with them. Very quickly and very very decently, they determined my iPhone needed to be replaced. Because I was within the 1 year limited warranty, that replacement would be for free. Had it been beyond one year, and I didn’t have an AppleCare contract, it would not have been free. So while I didn’t have to confront that issue, I suspect I would have been quite unhappy to have been told that an “upgrade” from Apple had broken my iPhone, but that I  had to pay $199 to fix it. But anyway, I expect today I will have my new iPhone and once again have access to Wifi. 

The Mail.app/Gmail problem: This problem is also hugely significant for me, and so far, without any obvious remedy.

The short form description is this: After the “upgrade” of Mail.app, Mail will not let you move a message from the Inbox to a Gmail folder unless you also have the All Mail folder on your machine. If you don’t, then the move won’t stick, and when you leave and return to the Inbox, the messages return. 

Why is this a problem? Well I get literally hundreds of emails a day from many different channels — from students, from colleagues, from collaborators, from fellow activists, from spammers, from the public, from the haters, from whomever.  Because of all that email, I have to spend endless hours processing those messages. I process them by either deleting them, or responding to them, or marking them for later response, or moving them to a “if I ever get the time I will respond” folder (which today has close to 1k messages). But because of this new bug, my processing doesn’t work. And by the end of the week, there were literally thousands of emails in the mix of inboxes that I have. 

This problem has been extensively described by the incredibly generous Joe Kissell at Tidbits. As he explains, the obvious solution — enable the All Mail folder — isn’t a solution. I’m privileged enough as a Harvard professor not to have to worry about the bandwidth required to suck down the gigabytes of data in all my All Mail folders from all my gmail accounts for each of my three machines. But I suspect there are many who live in the bandwidth desert that is the United States who are not happy to have to pay for the totally useless requirement of copying to the local machine the mail that is collected solely for the purpose of improving Google’s ad algorithm. 

More importantly, as the many comments to that great Tidbits article describe, it’s not even clear this solution is a solution. Apparently even after running your machine for the literally days necessary to download and reindex the Mail cache, the resulting Mail.app doesn’t actually work very well. Some report that it takes 30 minutes for the Inbox to resync from the iPhone to the desktop. Others report all sorts of flaking with the system. No one I’ve seen reports that this change is good.

So why did Apple do it? Well, it turns out iCloud mail accounts work just fine — so some suggest just forwarding mail from Gmail to iCloud. Maybe that’s the reason Apple did this. Others say the change was requested by Google. That’s really hard to believe but who knows.

The bottom line is that we don’t know. And so literally thousands of hours of users time is being spent to deal with the ambiguous bug/feature of this change, and terabytes of bandwidth wasted, all because Apple can’t learn to speak. 

Keynote: As I’ve also described elsewhere, the latest update of Keynote has broken my slide presentations. “Broken” in the sense that some of the the functionality that existed in Keynote ‘09 doesn’t exist in the new version.

Here again, there is the question: Why did Apple remove this functionality? Is this the equivalent of the Seinfeld Soup Nazi — the iOS-Nazi has struck again? Or is it an oversight (so the removed functionality will be restored)? This difference is significant because if it is the former, then at least this user will leave Keynote. I don’t have the time (or patience) to build for a platform I can’t trust. If it is the latter, then again, it would be enormously beneficial to know whether Apple intends to fix it. 

This problem is the least significant, at least for me. The old version of Keynote remains (unlike with Mail.app, and unlike with the iPhone which Apple won’t permit people to downgrade from). It’s a hassle to launch it versus the new version (and you can’t just delete the new version and keep auto-update on), but ok. I like Keynote ‘09 well enough, and can continue to use it while I scope out alternatives to move to.

But I am sorry I won’t see the other new features of Keynote. And am really sorry to have to begin the transition to a new presentation platform.

Pages: These other experiences had made me really reluctant to explore Pages, but yesterday, I did. Right away I confronted a truly insane “upgrade”: Apple has added an ability to automatically smart-ify quotes — as you type them at least. But a functionality that used to exist — where you could search and replace single and double quotes and the replaced quote would be a smart quote — has been removed. So now, the only way to smartify those quote (which, as one writes with the standard cut-and-paste-a-quote style of today) is to manually search for a single or double quote, and then retype it.

I can’t imagine this is a feature, and not a bug. But it means I can’t use the new version of Pages till fixed. 

The obvious remedy

Some of the problems I have described are obviously bugs — Apple didn’t intend 7.0.3 to break wifi, and I really doubt it meant to stupify Search/Replace.

Some may or may not be bugs — is Apple trying to nudge me away from Gmail? Is Apple trying to improve (in its view) the quality of my Keynotes by removing a transition it thinks isn’t cool? And is this the future of consumer products? Will my Gap jeans add bellbottoms if that fashion returns (and if it has, because what do I know about fashion, will it remove them?)

But whether or not these changes are bugs, this is my point: it is insane that Apple doesn’t have a policy of explaining this to us. I am sure I am not the only Apple user that doesn’t have time for this absurdity. Days begin for me in the 4am timeframe already, and I am already perpetually behind. So to confront these problems without there being a simple location on the Apple site where Apple explains what it intends to fix is to add the proverbial insult to injury.

Apple is already spending the money to scrub the comments it doesn’t like. Apple can afford to spend the money to help its users understand which bugs are features, and which bugs will be repaired.

And if Apple doesn’t, then it is a company with an ego that at least I don’t have the time to afford.

Anymore.


<background>

Many of us fighting for corruption reform believe this:

Only New Hampshire can save us.*

Why New Hampshire?

First, New Hampshire holds the first free presidential primary (Iowa is too addicted to ag subsidies to be called “free”), and the N.H. primary can set the tone for the 2016 election.

Second, New Hampshire is filled with fiercely independent voters, who are among the most politically astute in the nation (see “First” above).

Third, New Hampshire is one of the only states that has an express right of the people to revolution: Article 10 reads: 

[Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

These three points together have led people in New Hampshire to launch the New Hampshire Rebellion (#NHR), which aims to recruit voters — Independents, Republicans, and Democrats — in New Hampshire to a single cause: To get every presidential candidate at every event in New Hampshire to answer one simple question: “How are you going to end the corruption in Washington.”

There are many ideas for how the #NHR will push its agenda. You can follow the tumble for #NHR here.

That’s the first bit of background. Here’s the second: 

A local hero in New Hampshire is Doris Haddock (aka Granny D). In 1998, at the age of 88 (till she was 90), Granny D walked across the country — literally, from coast to coast (or at least to DC) — wearing a sign: “campaign finance reform.” Her incredible story is told in her book, Granny D: Walking Across America in My Ninetieth Year, and as everyone in the corruption cause across America recognizes, this made her our hero.

In 2004, she ran a small-dollar campaign for Senate against Judd. She didn’t win — despite being a guest blogger on my blog! — but she continued her work for “campaign finance reform” until she died at the age of 100, a couple months after Citizens United was decided. At the celebration of her 100th birthday, on January 28, 2010, a week after Citizens United was decided, she delivered an incredible speech about that decision, and the future of reform.

</background>

<pitch/plea/request>

None of us have Granny D’s strength to walk across America. But some of us are now thinking about a smaller version of that march, aimed at recruiting people to the #NHR. Not across the US, but across NH; not west to east, but north to south; and not in the summer, but in the winter. In particular, this winter. Specifically, this January:

It is our aim to march from the northern tip of New Hampshire to Nashua, three times between now and the New Hampshire primary, recruiting voters in New Hampshire to the #NHR.

In the first year, though the details are still being worked out, we plan to begin on the day Aaron Swartz died — January 11 — and end in Nashua on the day Granny D delivered her Citizens United speech — January 28. When we begin, we will read a passage from Aaron’s last speech. When we end we will read Granny D’s last speech. And in between, we will speak in as many places as we can, recruiting as many citizens of New Hampshire to the #NHR.

This first year will be a bit of a pilot. We don’t expect many to join us — though we of course invite everyone to participate, especially presidential candidates, for at least part of the march. There’s at least one person so far who has committed to make it from top to bottom. (Me). But our hope is that by the third year of this march, hundreds will be joining us to make this issue the first issue in the New Hampshire primary.

So here’s where we need your help: This is a joint project with Rootstrikers and #NHR (Rootstrikers.org providing institutional support while we get this off the ground). But neither organization has the resources or infrastructure to do this alone. To make it feasible, we will need a ton of support between now and January 11 — both to organize the event, and support it if it happens. 

So I have built this webform to help collect possible volunteer support. If you might be able to help, or want to be kept in the loop, click here

Again: Click this to volunteer to help.

And whether or not you can help, please share this post as broadly as you can. 

Thanks in advance (of a very cold January). And thanks to everyone who has worked so hard to keep Granny D’s memory alive. I’m really hopeful that at the very least, we’re going to make that work a lot easier.

*And about the claim that “only NH can save us”: Obviously, NH alone can’t save us. We all have to save U.S. But NH gives us a critical entry into the essential political debate — which is why so many are so eager to organize NH.


House aides, when asked why Democrats would vote for this [sell out to Wall Street] even though the Obama administration opposes it, offered a political explanation. Republicans have enough votes to pass it themselves, so vulnerable House Democrats might as well join them, and collect industry money for their campaigns.


So people are often intrigued by my “power point slides.” I explain, patiently, that my slides are Keynote. (Repeat: legitimate Free Software objection; repeat: criticism accepted). 

The latest version of Keynote breaks my slide show. (E.g., the deck that produced my TED talk now won’t work). That means I won’t be upgrading (or using the upgrade I already paid for). But given the slow but certain death of orphaned software, it also means it’s time to look elsewhere.

(You can see a full list of everything broken in the latest version here.)

I’ve been experimenting with Prezi, and so we’ll see if that’s an alternative. But I wonder whether there are any serious Free Software developers keen to do a rev of either Open or Libre Office’s slide app? I don’t have the cycles for an extensive commitment to this. But I’d be really keen to participate in a project to think about key improvements to make either really competitive. 

If you’re game, send something to comments at lessig dot org. 


This comment was also apparently just deleted: 

Re: wifi greyed out after update to ios7

created by tarinib in Using iPhone - View the full discussion

Dear Apple

Im writing to you regarding issues around my iphone 4s. I upgraded the ios7.0 a couple of weeks ago, only to find one morning that my wifi was greyed out and could not access my wi fi. I started finding forum boards on how to fix, one of which was your board which was clear about resetting network settings. Which I did numerous times. I also made sure my modem/router for home had latest firmware and rebooted. Still did not work. I then resorted to a full phone reboot wiping out all memory and info on my phone. Still did not work. I did this a round of three times. Ending up with a phone that has the latest ios 7.0.3 and no wifi. I skipped all the drastic steps others seem to have taken such as putting in freezer or the one where I guy heats his wifi chip up to 300degrees which by the way seem to have worked quite well. So as we enter a Brave New World where huge monolithic companies such as yourself began to possibly test ways to take out old phones so that customers have to go purchase new ones saying you are not responsible for software ios upgrades. Well what about when the iOS takes out or resets a wifi chip that never will reset itself unless you heat it up with a heat gun!  Its been a couple of weeks and more and more people seem to be coming to these boards to say the same thing, mainly around the 4s. The issue I have with getting a replacement is that I purchased this iphone 4s from someone who upgraded to iphone5. Which means the serial number is not matching with my apple account.

The phone worked without fail and no issues before you created your untested 7.0ios system, but again I stress  if you create a ios that ends up taking out hardware. Well Houston we have a problem.

  Its been weeks where Apple has not made any announcement on this issue let alone taking a stand on stating what the issue is and what you are doing to fix it. Remember who made APPLE a success! It’s the people who loyally support your product and just because you have become the Goliath of the tech industry does not mean you can walk all over the little 4s people!  I will be the first one inline if someone with some money or some lawyer who had this happen to them to be a part of a civil action lawsuit against you, just for the fact that you have stood quiet while people struggle with this issue!


I upgraded my iPhone (“what, you have an iPhone” — ok, you win, sin #1) to iOS 7.0.3. It killed wifi. I went to the Apple discussion site to see what the community had to say about it. Seems there are lots of people who had the same problem. I followed the recommended fixes — including reinstalling the system software and “restoring” from a back (which, in Apple-land, doesn’t really mean restoring, but means giving you the beginning of a restoration, which, with a couple more hours of tinkering, get you back to where you were) — but nothing worked. Wifi came back for an hour. It’s gone again. 

What’s striking about the comments on the Apple community site is the frustration — frustration because of Apple’s apparent policy not to respond to comments. Unlike really helpful companies which try to reward people who spend time making community boards the best source for technical support by engaging with posts, and at least acknowledging the problems, Apple’s policy seems to be a “never comment” policy. Which leads its users — and again, people who are volunteering their time to help lower Apple’s customer support cost — to express increasing exasperation at the unanswered problems. 

This link is a great example: link. As you read through it, you’ll see that’s it’s fairly clear there’s a bug which is causing significant trouble; clear that there’s been no response from Apple; and clear that the troops are getting angry.

This morning I noticed a post by LouLou71: It was as follows: 

Re: wifi greyed out after update to ios7

created by LouLou71 in Using iPhone - View the full discussion

Before I have another post removed I urge all those affected with wifi issues to exercise your rights as I have done as published on apples vet own website.

http://www.apple.com/uk/legal/statutory-warranty/

There are far too many of us affected for this to be a coincidence or consumer caused problem, I had a 16gb white 4s purchased in July 2013 and wifi was completely greyed out no matter what fixes I was advised to try.

I have been successful in my claim and am now in receipt of a brand new iPhone 5, this was provided to me by the phone shop I signed my O2 contract with last year.

Good luck and persevere

Later, I tried to post a question to the post — basically asking whether Apple indeed scrubbed comments, meaning it was worth it for them to censor the community, just not respond to it — but it wouldn’t post. 

Then I noted LouLou71’s comment had been deleted. So I reposted it — noting I had thought his comment was a bit paranoid, but anyway, his information was certainly valid. Imagine if we had the same warranty rights in America that Europeans have in Europe!

But then, to my utter(ly naive) astonishment, Apple removed my comment. Their email to me is as follows: 

Dear Lessig Lawrence (Lawrence Lessig),

Recently you posted a poll or petition in Apple Support Communities. We are including a copy of your message at the end of this email for your reference. We understand the desire to share experiences in your topic, “Re: wifi greyed out after update to ios7 ,” but because these posts are not allowed on our forums, we have removed it.

These forums are intended for technical questions that can be answered by the community. We want everyone to be able to contribute to our forums and have their issues addressed. We feel that we have a very strong community and that it is an excellent resource for users to get assistance. I encourage you to continue using the Apple Support Communities while abiding by our terms of use. The Apple Support Communities Use Agreement, which also includes helpful information about using Apple Support Communities, is located at https://discussions.apple.com/static/apple/tutorial/tou.html

If you would like to share your experiences with Apple directly, you can submit feedback here: http://www.apple.com/feedback . As part of submitting feedback, please read the Unsolicited Idea Submission Policy linked to the feedback page.

Best Regards,
Apple Support Communities Staff

A copy of your message for reference:

LouLou71 had posted this here. I had tried to ask him a followup question (does Apple really scrub comments), having thought his assertion was a bit paranoid. As apparently the comment was removed, maybe it wasn’t so paranoid: Before I have …

Ok, so what precisely is the valid objection here? Sure, the community site is intended for technical issues. That was what the thread began with — a technical issue. When there was no corporate response to that technical issue, some started to offer advice to other customers about what they could do to deal with that issue. That was LouLou71’s purpose — exercise your warranty rights.

When did it become inappropriate to inform people about legally protected rights related to technical issues? Is talking about legal rights the new porn? Apple doesn’t scrub comments that try to help people by telling them to refer complaints to the feedback page — for in the Sharing Economy that is the Internet, that’s free information donated to Apple. But when someone offers advice that tries to help people by telling them to exercise their rights, it gets purged? 

So, hey #Apple, if you want the free help given by members of your community, treat them with respect. A simple — “thanks for the comments; we’re looking into it” — would be a really cheap way to show respect. And a policy against scrubbing comments offering people completely legitimate advice for dealing with their technical problems would be one more, though admittedly, that’s less cheap. For remember, when Jobs was at the helm, many (maybe too many) of us were willing to cut the genius some slack. That willingness is, let’s say, waning. 

Best Regards,
An Apple Support Communities Customer


The shutdown — and the threat of default — cost the economy billions. (Here’s one estimate of $24 billion. The NYT has some lower (though in the billions) estimates.)

It also triggered a flood of campaign contributions to both Democrats and Republicans (Here’s a great piece by Paul Blumenthal about the GOP. Here’s another by the same Paul Blumenthal about the Dems. Here’s one by Bob Cesca about the Tea Party.)

Billions lost so that they can raise millions. 

Can we really afford privately funded campaigns anymore? Can we finally get around to thinking seriously about Citizen-Funded elections?

Because we’re obviously paying already. I say, let’s pay less. 


Thursday, at Brookline&#8217;s Lawrence School, something that should be happening at every school everywhere: a focus on healthy food. 

Thursday, at Brookline’s Lawrence School, something that should be happening at every school everywhere: a focus on healthy food. 


Twitter / matthewstoller: The reformers (@lessig) have ...

Matt Stoller, arbiter of all things lib, thinks me “intellectual[ly dis]honest” because I am quoted as saying: 

if we had a clean system for funding elections, some sort of public funding system, then I’d have no problem with earmarks

when before I have written:

Earmarks are a cancer: Not because they consume a large part of the budget — they don’t; not because we shouldn’t be spending money — we should. But because they feed the system of corruption that is the way Washington work.

Twitter, of course, is the wrong forum to be charging people with dishonesty, so who knows really what the Great Stoller really thinks. But there is neither anything “dishonest” nor even wrong in the position: earmarks would be relatively harmless in a system of publicly financed elections but in a system of privately financed elections, they are the the mother’s milk of corruption. Anyone who doubts that should (finally get around to) read(ing) Robert Kaiser’s amazingly good So Damn Much Money

Maybe my “dishonesty” comes from the fact that earmarks have been (largely) removed yet corruption still flourishes. But of course, I have never suggested that the only reform that Congress needs is the elimination of earmarks. And it is the whole thrust of everything that I argue in Lesterland that given the current rules, the corruption has only morphed to even more congressional dysfunction.

Or put more simply: the business model of corruption has shifted from the one Kaiser described (with earmarks at the center) to dysfunction (which is what Lesterland and Mann and Ornstein describe). And I still believe that that corruption won’t be eliminated till we have reform like Sarbanes’ legislation, or the American Anti-Corruption Act

Honestly, Matt. (And Matt, honestly!)


Josh Blackman has an interesting piece following up on my point about the original meaning of “corruption” as applied to McCutcheon. On these pages (pages?), I had written: 

The fundamental question for a judge is always this: What sanctions the Court in its overturning an act of Congress? The easy and obvious reply in these cases is the First Amendment — as interpreted by the Court. According to that interpretation, the regulation of “corruption” escapes the ordinary restriction against speech regulation. So the important question is what “corruption” means.

Josh replies, “I’m with Larry for the first three sentences, but he loses me with the last.” For him, the “important question” is not what “corruption” means; the important question is “what ‘freedom of speech’ means.”

Former co-clerk Mike Ramsey (aka, Miker) piles on in his own blog post. After quoting Blackman, Ramsey writes: 

 the question isn’t the eighteenth-century meaning of “corruption”; it’s the eighteenth-century meaning of “abridging the freedom of speech.”  In Buckley v. Valeo, the modern Supreme Court said that concerns over corruption might justify restrictions on speech.  But that did not purport to be an originalist holding.  To make an originalist care about the eighteenth-century meaning of corruption, you have to show that in the eighteenth century concerns about corruption justified speech restrictions.  Lessig has not done that.

It’s certainly true that Buckley isn’t an originalist opinion. But my question is how an originalist should apply the precedent s/he (ok, he) finds. 

The most conservative (small c) approach would be to embrace the test Buckley offers, but interpret its scope according to the values the Framers would have brought to the question. That’s what I did, and I’ll note that I’ve not yet seen an argument refuting the conclusion that I and Teachout and Brugman and others have advanced: That they were at least as focused on what I’ve called institutional corruption as upon the individual corruptions of a quid pro quo.

Of course, ala Crawford, it’s perfectly possible for an originalist to reject the who Buckley framework, and return to the question of how the Framers would have applied “abridging the freedom of speech” to the corruption regulations at issue in McCutcheon.

But I don’t see how that perspective supports the petitioner in McCutcheon. The Framers had a famously small conception of the restrictive scope of the First Amendment. As Robert Bork wrote about it

The framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject.

These were the guys that gave us the Alien and Sedition Act, and used government money to fund explicitly partisan newspapers (don’t tell the originalists who decided Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett).

Bork, of course, worked hard to construct a theory of free speech that might flow from a neutral view of “the freedom of speech.” He restricted that theory to political speech only — plainly triggered by the regulation in McCutcheon, at least if you embrace the Warren Court decision to protect symbolic speech (and of course, not too much). But unless one adopts a Black-ian absolutist position (“no law” means “no law”) — which Bork, who believed First Amendment “law should have been built on Justice Sanford’s majority opinions in Gitlow and Whitney,” did not — there still remains the question of what exceptions to the protection of “freedom of [political] speech [and symbolic acts like contributions]” will be allowed. 

It’s conceivable, of course, that an originalist would say “no corruption-based exception at all.” Again, given the understanding given by Teachout, that seems a plain misreading of them. But again again, in my view, if an originalist says “corruption” is a proper exception, I don’t see how an “honest originalist" avoids cabining his conception of "corruption" in light of the Framers’ values. 

Because again, if he doesn’t, then how can he justify the particular theory of “corruption” that he embraces? As Deborah Hellman nicely demonstrates, different theories imply radically different campaign finance regimes.

How does an originalist justify picking among those different theories unless he grounds it on framing values?  


Twitter / rickhasen: New @RosenJeffrey piece ...

What’s puzzling about Rick Hasen’s position on the originalist argument for why “corruption” means more than “quid pro quo” corruption is that he uses language like this — “New @RosenJeffrey piece channeling @Lessig on originalism and campaign finance is wrong” — when what he means is — “it won’t work.” He has no real response to the claim that in fact the framers used the word “corruption” in the way I (and others like Teachout) say. His only response — in fine — is that the conservatives on the court aren’t consistent enough to be moved by an originalist argument to a non-conservative end.

This feels both cynical and destructive of the ends I know Hasen and I share. I get that he wishes for a time when the Supreme Court says “it’s perfectly constitutional to pursue perfect equality in the political speech market.” I don’t support that position; I’m pretty confident Kagan won’t either; so it will be a long time till a Court could be constructed that would embrace it.

But given we both support aggregate limits, I don’t get why he’s so invested in denying an argument which at the very least would mark the originalists as both wrong and inconsistent if indeed they rejected it?

Not to mention, the possible good if at least one followed it. 


Rather than advancing the one argument that the five originalists on the Court might be able to hear, the government insists on standing with an argument that all five conservatives on the Court have already rejected.

On the argument in McCutcheon v. FEC, see this in the Atlantic. 

I’m going to release a free print/ebook version of my book, Lesterland. I’d be grateful for clever ideas for the cover design. If you’re a designer and interested in helping, I’d be grateful. Designers should be paid, but I’m hopeful gratitude and acknowledgment might be enough for this free version of the book. Email me at comments at lessig.org. And thanks in advance. 


Big thanks to Tumby for building a search engine for our "Corruption, Originally" site — remember, the Tumblr site with all the framing references to the term “corruption,” which establishes at a minimum that the Framers meant more by “corruption” than “quid pro quo” corruption. I’m grateful for the pro bono help, and excited about the technology. 


In The Daily Beast, I lamented a certain political innovation of the GOP (fearful the Dems would then copy it and it would become SOP). Some have questioned whether indeed there is any innovation here. But I was careful in crafting my essay to make the turns necessary to distinguish this example from past examples. 

In my view, the elements in the current game are first a grave threat (“the likely default on United States debt [which] could be catastrophic”) and second, the “forc[ing of] changes in existing law when it can’t with honesty say that it represents a majority”

These two parts work together: Maybe grave threats are fine in the name of an obvious or clear majority; maybe minority holdouts are fine when they don’t risk grave threats (It’s one thing to pretend to fire a handgun; it’s quite a different thing to pretend to fire a handgun on a jet 30,000 in the air.) My claim is that these two together are an “innovation.” 

That is different from saying that “non-budget items have never been attached to the debt ceiling.” And it’s obvious different from saying we’ve never had a shut down. Indeed, since 1976 those have been quite common.

The “innovation” is not the shut down, or even the demand: It is demand like this (without a claim to majority support) threatening a harm like this (default). 



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