LESSIG Blog, v2

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.