Why I Want to Run

Today I announced the formation of a committee to explore my entering the Democratic Primary for President. By Labor Day, I will decide whether a run makes sense.

I want to run. But I want to run to be a different kind of president. “Different” not in the traditional political puffery sense of that term. “Different,” quite literally. I want to run to build a mandate for the fundamental change that our democracy desperately needs. Once that is passed, I would resign, and the elected Vice President would become President.

This is the Presidency as referendum. Our constitution, unlike some states, doesn’t give us a referendum power directly. This hack adds one in. Almost never would it be necessary — in a well-functioning democracy. But when a democracy has lost the capacity to act as a democracy, a referendum president is a peaceful means to force a change that Congress is otherwise not going to make. When the system has become the problem, we need an intervention from the outside.

We are at one of those moments now. In no plausible sense do we have a representative democracy in America today. That fact shows itself in a thousand ways — from #BlackLivesMatter to billion dollar SuperPACs, and none more profound than the deep sense that most Americans have that their government is not theirs. “The system,” as Elizabeth Warren puts it, “is rigged.” And the fundamental challenge for our democracy today is to find a way to fix that rigged system.

Yet while every major candidate in the Democratic Primary has acknowledged this truth, none of them have waged a campaign that would produce a mandate powerful enough to fix it. They all offer a Chinese menu of bold ideas — from climate change legislation to tackling Wall Street, from student debt relief to equalizing the wealth in America — but not one has offered a plan for fundamental reform that could actually unite a divided America, and give us back a democracy that might work.

This is true of even the greatest candidate in this race so far, Bernie Sanders. Sanders is a rare hero among politicians. Throughout his career, he has been unwavering in his advocacy for the issues he believes in, however unpopular. There isn’t a triangulating bone in his body. And as people have come to know him and his history, they are inspired by a man who has stuck by his principles and whose principles are now more relevant and true than ever. The picture of 28,000 people showing up to a rally more than a year before an election is the picture of hope for a democracy.

Yet what should be obvious to everyone — or at least the 82% of Americans who believe “the system is rigged” — is that none of these incredible reforms is possible until we un-rig the rigged system first. We’ve lived through “change you can believe in.” What we need now is a reason to believe in change.

A referendum can be that reason. And the campaign for a referendum president could unite America behind a principle that would make democracy possible again.

That principle is a demand for equality. Not the equality of wealth, though I share Sanders’ view about the harm wealth inequality has done. And not an equality of speech. The First Amendment must mean at least this. But an equality of citizens. The right that all of us have in a representative democracy to be represented equally.

That right has been violated in America today — and brazenly so. In the way campaigns are funded, in the way the poor and overworked are denied an equal freedom to vote, and in the way whole sections of American voters get written into oblivion by politically gerrymandered districts that assure their views are not represented, we have allowed the politicians to cheat us of the most fundamental commitment of a democracy: equal citizens. And until we find a way to create a mandate to demand equality for citizens, we will never find a way to make real change possible.

A regular candidate for president — even an extraordinary one, as Sanders is — cannot achieve that mandate. His or her mandate is always divided among the 8 or 10 issues at the core of their campaign. The lobbyists and politicians will always have an excuse to defeat their call for reform in the wake of a campaign in which reform is literally the last issue on the list.

A referendum president is a chance to achieve a mandate to restore this principle of political equality. It is a chance to create the political power that would be necessary to force a reluctant Congress to make the changes that equality demands. And if the movement to support this referendum grew powerful enough, as candidates for Congress get called upon to support the Citizen Equality Referendum, then conceivably, the term of the referendum president could be quite short. And once the reform is passed, the elected Vice President, whether Hillary, or Bernie, or Joe, or someone else, would become President — with a chance to actually do something in a Washington that has been remade.

I recognize, of course, how implausible this idea seems — even though every step in the argument is almost certain. The system is rigged. Sensible change cannot happen until it is unrigged. Any campaign that makes un-rigging just one issue among many cannot achieve the mandate fundamental reform will require. Yes, the idea may seem implausible. Yet the idea is right. And as I have come to recognize this simple fact, I have struggled with whether I could act on what I honestly believe.

I have tried to recruit others more plausible than yet another middle aged white guy (without a billion dollars). And I would gladly step aside if someone better known credibly committed to the run. But until someone does, I want a chance to press the easiest case possible: something we all already believe, with a plan that at least most might imagine could work.

So today we’ve launched a kickstarter-like campaign, to raise the funds necessary to make a run plausible. If we hit our target of $1 million by Labor Day, then I will give this run every ounce of my energy. If we don’t hit our target, we will return the money contingently pledged. I won’t take anyone’s money unless there’s a campaign to be waged. But I passionately want a chance to wage that campaign.

Because in the end, this fight is not either/or. At most, if this works, it would delay the start of the next extraordinary president’s administration — whether Bernie, or Hillary, or someone else.

Our goal is to place at the center of this primary the most important moral issue of our time — achieving the equality that a democracy demands — so we can finally build the society that we were promised: one where citizens are equal, and where none could imagine the need to assert the most basic truth of any society — that their lives mattered any less than any one else.

We are better than this. And if we muster the strength to undo the corruption that the politicians have allowed, the greatness of America will be reflected in its government too. It once was. When we are finally equal citizens, it will again.

(Original post on HuffPo)

Something Is Going Right: Net Neutrality and the FCC

Imagine that when you plugged something into an electrical outlet, the outlet queried the device and demanded identification. Was it a Sony TV or Panasonic? Was it a Dell or an Apple? And then based on that identification, different levels of quality or reliability of electricity were served at different prices. No doubt such a regime would benefit utility companies. I’ve not yet met anyone who thinks it would benefit innovation. Thus, it would be something possibly good for network providers, but plainly bad for the market generally.

As I’ve watched the amazing progress that proponents of “network neutrality” have made, I’ve been astonished both by their success, and by how long this debate has been going on. I first drew the analogy to the electrical grid in testimony before John McCain’s subcommittee more than a dozen years ago. Mark Lemley and I tried to lay the issue out, as it applied to the then-raging battle over “open access,” almost 15 years ago. But now, thanks to the incredible work of many, including especially Marvin Ammori, Susan Crawford, Harold Feld (even from the old days), Barbara van Schewick, Kevin Werbach, and Tim Wu, the FCC has come around to recognize its crucial role in preserving the environment for innovation. If the order is as the order seems it will be, it will mark an extraordinary conversion by the chairman, and former industry lobbyist, of the FCC. Nixon went to China, Johnson passed the Civil Rights Acts, and Chairman Wheeler got us network neutrality.

Defenders of the status quo are now frantically filling the tubes with FUD about the FCC’s decision. But as you work through this FUD, keep one basic fact clear. Relative to practically every other comparable nation, America’s broadband sucks. Seriously, sucks. Even France beats us in cost and quality. And as the genius Yochai Benkler established in the monumental report by the Berkman Center commissioned by the FCC after Obama was elected, the single most important reason our broadband sucks is the sell-out regulatory strategy of the prior decade at least. Nations that imposed neutrality-like rules beat us, in cost and quality. They have more competition, faster growth, and better access. So for anyone remotely connected to reality-based policy making, it has been clear forever that America made a wrong turn in its regulatory strategy, and that we needed an about face.

The FCC’s likely action here is that about face. I’ve not seen the details. Those that have worry rightly that there are improvements that still need to be made. (Barbara van Schewick’s ex parte filing of yesterday raises some really important concerns.) But we’re in a place where the FCC has no incentives except to get it right. And if the community that has done the incredible work to carry this issue this far can focus on these final critical steps, we could well see a real victory here. Finally. (Though I still worry about the next step, as Susan Crawford has so terrifyingly described.)

The president deserves credit for pressing this issue again. Chairman Wheeler deserves real credit for looking carefully at the facts, and recognizing the truth in what the president was pressing. Title-II-light is the right regulatory home. Unlike the old days with utility regulation, the FCC will not regulate rates, or impose tariffs, or undue administrative burdens. A clear regulatory commitment will set the direction for investment and innovation — in fast, cheap broadband (something much of the world has had, but the U.S., not so much), and continued and renewed permission-free innovation.

For if the telephone companies that built the first broadband network (DSL) could discriminate, would Skype have happened? And if the cable companies that have built the second broadband network could discriminate, would YouTube have happened? The history in Internet innovation is the story of outsiders building a better mouse trap — kids, dropouts, and non-Americans, given a neutral platform to prove their ideas. It was neutral because it was built that way. If we’re to preserve that platform for innovation, we have to keep it that way, through whatever means possible.

Cross-posted from Lessig Blog.

(Original post on HuffPo)

We Should Be Protesting, Too

This week, tens of thousands of Hong Kong residents turned out to protest China’s plan for bringing democracy to that city. Rather than letting voters pick the candidates that get to run for chief executive, Beijing wants the candidates selected by a 1,200 person “nominating committee.” Critics charge the committee will be “dominated by a pro-Beijing business and political elite.” “We want genuine universal suffrage,” Martin Lee, founding chairman of Hong Kong’s Democratic Party demanded, “not democracy with Chinese characteristics.”

But there’s not much particularly Chinese in the Hong Kong design, unless Boss Tweed was an ancient Chinese prophet. Tweed famously quipped, “I don’t care who does the electing, so long as I get to do the nominating.” Beijing’s proposal is just Tweedism updated: a multi-stage election, with a biased filter at the first stage.

The pattern has been common in America’s democracy too. Across the Old South, the Democratic Primary was limited to “whites only.” That bias produced a democracy responsive to whites — only. The battle for equal rights was a fight to remove that illegitimate bias, and give African Americans an equal say in their government.

Today there’s no “white primary.” Today, there’s a “green primary.” To run in any election, primary or general, candidates must raise extraordinary sums, privately. Yet they raise that money not from all of us. They raise it from a tiny, tiny few. In the last non-presidential election, only about .05 percent of America gave the maximum contribution to even one congressional candidate in either the primary or general election; .01 percent gave $10,000 or more; and in 2012, 132 Americans gave 60 percent of the superPAC money spent. This is the biased filter in the first stage of our American democracy.

This bias has consequences. Of course, we don’t have a democracy “dominated by a pro-Beijing business and political elite.” But as a massive empirical study by Princeton’s Martin Gilens and Benjamin I. Page published just last month shows, remove the word “pro-Beijing,” and the charge translates pretty well.

America’s government is demonstrably responsive to the “economic elite and organized business interests,” Gilens and Page found, while “the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.” Boss Tweed would have been impressed.
The “green primary” isn’t a formal bar to election. But it is certainly an effective bar. There isn’t a single political analyst in America today who doesn’t look first to whether a candidate for Congress has the necessary financial support of the relevant funders. That money isn’t enough, and it certainly doesn’t guarantee victory. (Only 94 percent of candidates with more money win.) But no candidate ignores the money, or is ignorant of the views of the tiny fraction of the 1 percent that provides it. That’s not perfect control, but it turns out to be control enough to weaken the ability of ordinary Americans to have something other than a “non-significant impact upon public policy.”

The surprise in the Hong Kong plan is not that it fits Boss Tweed’s mold. The surprise is the reaction of her students, and now people. To imagine a proportionate number of Americans — 5 million — striking against our own version of Tweedism is to imagine the first steps of a revolution. But in America, we don’t protest our “democracy with Chinese characteristics.” In America, we have accepted it as as American as apple pie.

At least for now. There is no doubt that because of the way we fund campaigns, the “economic elite” — what conservatives call “the cronies” and progressives “corporate power” — have hijacked American democracy. And as frustration and anger about that truth grows, that elite will become as the whites of an apartheid regime: identified as the cause of a dying democracy, and the target of angry demands for reform.

It is hard to see this just now, since so much of popular culture idolizes extraordinary wealth. But as economic growth in the middle class stalls, and as inequality soars, an enemy will be found. At least unless the more enlightened of that elite, from both the Left and the Right, stop screaming at voters through their superPACs, and step up to support the change that might weaken their power, but walk us back to a democracy.

Hong Kong’s students have started that struggle — for them, there. But their ideals are ours too, as is the flaw in the system they attack. We should be demanding the reform for which they are now fighting: an unbiased election, at every important stage. Or more simply: #EndTweedismEverywhere.

Lawrence Lessig is a professor of law at Harvard, and co-founder of Mayday.US.

(Original post on HuffPo)

What New Yorkers Can Do About Money in Politics

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:

So Cuomo won't debate Zephyr Teachout in NY and Abbott won't debate Wendy Davis in TX? Yeah, women have come a long way. #uppers

— Tam Luntz (@TammaraMaiden1) September 6, 2014

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 percent national name recognition to be allowed to debate. When he got that, he was told he needed 2 percent. When he got that, he was told he had to have raised $500k in the prior six 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 10 others, and they 10 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.

Follow Lawrence Lessig on Tumblr, where this post first appeared.

(Original post on HuffPo)

Aaron's Walk: The New Hampshire Rebellion

A friend of Social and Internet Activist Aaron Swartz describes the movement his life has inspired:

A year ago tomorrow, Aaron Swartz left. He had wound us all up, pointed us in a million directions, we were all working as hard as we could, moving things forward. And then he was gone.

Forever, all of us close to him will wonder whether there was more we could have done to keep him. We hadn’t worked hard enough to help him. He was alone, surrounded by a million friends. And now, even now, forever it will be this now, a million friends are forever alone, having lost him.

I wanted to find a way to mark this day. I wanted to feel it, as physically painful as it was emotionally painful one year ago, and every moment since. So I am marking it with the cause that he convinced me to take up seven years ago and which I am certain he wanted to make his legacy too.

On Saturday, we begin a walk across the state of New Hampshire, to launch a campaign to bring about an end to the system of corruption that we believe infects DC. This is the New Hampshire Rebellion.

Fifteen years after New Hampshire’s Doris Haddock (aka, “Granny D”), at 88, began her famous walk from LA to DC with the sign “CAMPAIGN FINANCE REFORM” on her chest, a dozen or so of us will start to walk in Dixville Notch, NH, the place the first 2016 presidential ballots will be cast. For two weeks, with more than 100 joining us along the way, we will walk south across New Hampshire, ending up in Nashua, NH, on the day Granny D was born.

Along the way, we will recruit everyone we can to do one thing: We want them to ask every presidential candidate at every event between now and January 2016, this one question: “How will YOU end the system of corruption in DC?”

A system of corruption, not particular crimes. Our focus is not Rod Blagojevich; it is the system of campaign funding in which fundraising is key, and the funders represent the tiniest fraction of the 1%. That system, we believe, corrupts this democracy. (We, and 71% of Americans according to a recent poll.) And until that system changes, no sensible reform on the right or the left is possible. Politicians may continue to play this fundraising game. We believe that New Hampshire can change it.

As this question gets asked, we will record the responses. Literally. And post them. And through allied campaigns, we will put pressure on the candidates to surface this issue — and if we’re lucky — make it central to their campaigns.

This campaign will only work if the citizens of New Hampshire care about this issue. Really care. And the citizens of New Hampshire will really care only if we can find a way to convince them that there’s something that can be done about it.

Because here’s the really incredible fact about we, the People:

Ninety-six percent of America believe it is “important” “that the influence of money in politics be reduced” — 68 percent believing it “very important,” 28 percent, just “important.”


91 percent of America believes it is “not likely” that the influence will be reduced.

This gap is an incredibly opportunity. If we can, as Harvey Milk used to say, “give’m hope” — hope that that there’s a real chance this system of corruption might change — then this latent energy for reform might be released. And then this, the only real hope for real reform, might be realized: an end to this system of corruption.

Since Aaron convinced me to take up this cause, I’ve written three books and given more than three hundred lectures about the problem. But the walk across New Hampshire is not a lecture tour. It is a chance for all of us to talk about this issue, person to person, one citizen at a time. Most politicos believe it is not possible to convince ordinary voters to care about this issue. I believe these experts are wrong. Over the next two weeks, and twice more before the 2016 primary, as we walk across the state, we’ll see. And I will report back.

You can help. Please help. You can still join the walk. You can spread the word of the walk (tweet #NHRWalk linked to nhrebellion.org). You can sign a petition from wherever you are to push the candidates to answer this one question. Or, with just a few clicks, you can send support that will help this movement grow.

It will always be my penance to believe that I didn’t do enough for my friend. I will do more. This is the start. If we’re lucky, we’ll mark the third anniversary of that terrible day with the real hope that the New Hampshire primary will turn upon this issue. And if we’re super lucky, we’ll mark the fourth with the anticipation of a president who made it her or his is-sue. And won.
(Original post on HuffPo)

"They Know We Know It." Get Politicians On The Record About Corruption

“There’s another challenge that we must address and it is the corrupting force of the vast sums of money necessary to run for office. The unending chase for money I believe threatens to steal our democracy itself.”

No, that’s not a quote from the President Obama’s State of the Union address. But it is from a recent speech by the newest member of his cabinet: John Kerry.

We both were struck by Kerry’s candidness and eloquence on the matter of money in politics as he gave his farewell address to the Senate, where he has spent the last 28 years of his life.

We were so struck, in fact, that we – and our good friends at HuffPost, including Arianna – need your help.

We’re calling it the On the Record Project.

We need to get every member of the House and Senate on the record about the force “that threatens to steal our democracy itself.”

We can no longer afford to have our public officials remain silent on this crucial issue. They should no longer be allowed to duck it, or to act is if there is no mandate to fix the problem.

In fact, the mandate couldn’t be clearer. Year after year, poll after poll has shown that we, the people, are sickened by the way in which money corrodes and corrupts our democracy. In a Gallup poll last July, 87% of us said that reducing government corruption should be an “extremely important” or “very important” priority for the president. It ranked second on a list a dozen – from improving education to strengthening national security — just below job creation (which came in #1, at 92%).

Corruption. It’s a strong word. But that’s how vast majorities of us see it, and now Secretary o State John Kerry confirmed that we’re not nuts: “I’ve used the word ‘corrupting’ and I want to be very clear about it. I mean by it not the corruption of individuals but a corruption of a system itself that all of us are forced to participate in against our will: The alliance of money and the interests that it represents, the access that it affords to those who have it at the expense of those who don’t, the agenda that it changes or sets by virtue of its power is steadily silencing the voice of the vast majority of Americans who have a much harder time competing or who can’t compete at all.”

We Americans are not the type of people who have ever allowed our collective voice to be steadily silenced. Other countries may have a higher tolerance for such muting of the masses, but not us. And it’s time to speak up, and to get every one of our elected representatives to speak up, too. Do they agree or disagree with 87% of us? Do they think John Kerry’s reflections, informed by three decades of service on Capitol Hill, are accurate or not?

To help manage the On the Record Project, HuffPost has set up a system for all of us to help get every member of Congress on the record.

It’s simple enough, but will require some guts and persistence to pull it off.

Here’s what we need you to do:

Go to a gathering that your representative or senator is attending and ask him/her:

What is your view on campaign finance?

Do you believe that the “unending chase for money” has corrupted politics?

Record their answers to both questions on video. Use your cell phone or whatever device you want and then post it with the other videos so that we have an exact record of what they said.

Upload your audio to SoundCloud and tag it #campaignmoney

Or, send us video clips through SendSpace.

Or, send files to us directly at [email protected]

The goal of this project is not merely to get every one of them on the record, but then to use what they say to help propel them to act – to reform the system — or to hold them accountable when they either fail to act or fail to acknowledge the crisis of corruption.

Acknowledgement of an illness is the gateway to wellness. As it is with alcoholics, the first step to sobriety is publicly admitting the addiction.

And on that front, once again John Kerry was very clear: “We should not resign ourselves, Mr. President, to a distorted system that corrodes our democracy, and this is what is contributing to the justifiable anger of the American people. They know it. They know we know it. And yet nothing happens. The truth requires that we call the corrosion of money in politics what it is – it is a form of corruption and it muzzles more Americans than

it empowers, and it is an imbalance that the world has taught us can only sow the seeds of unrest.”

Indeed, they do know it. And they do know that we know it. And, yet, nothing is happening in Washington.

At least, until now.

Let’s get every politician to take a stand – either for the status quo or against it — so that we know who’s on what side. Doing so will help all 87% of us democracy-loving Americans draw the battle lines for the future.

Please, join the cause. Become a part of the On The Record Project now.

Questions on this project? Let us know in the comments below. We will update this scorecard with your responses.

(Original post on HuffPo)

Prosecutor as Bully

(Some will say this is not the time. I disagree. This is the time when every mixed emotion needs to find voice.)

Since Aaron Swartz’s arrest in January, 2011, I have known more about the events that began this spiral than I have wanted to know. Aaron consulted me as a friend and lawyer. He shared with me what went down and why, and I worked with him to get help. When my obligations to Harvard created a conflict that made it impossible for me to continue as a lawyer, I continued as a friend. Not a good enough friend, no doubt, but nothing was going to draw that friendship into doubt.

The billions of snippets of sadness and bewilderment spinning across the Net confirm who this amazing boy was to all of us. But as I’ve read these aches, there’s one strain I wish we could resist:

Please don’t pathologize this story.

No doubt it is a certain crazy that brings a person as loved as Aaron was loved (and he was surrounded in NY by people who loved him) to do what Aaron did. It angers me that he did what he did. But if we’re going to learn from this, we can’t let slide what brought him here.

First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good. He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million-dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: shame.

One word, and endless tears.

This piece first appeared on Lawrence Lessig’s blog.

(Original post on HuffPo)

What the Hell Is Being a Moderator For?

For the first time in as long as we can tell, neither candidate for president is addressing one of the top 10 issues that Americans believe should be a priority for the next president. Indeed, not just one issue, but two.

Since 2000, Gallup has been asking Americans to identify “how important a priority each of the following issues should be for the next President of the United States.” Every year before this one, those issues at the top are exactly the issues the candidates addressed on their websites. (Click here to see the research.) The order maybe different. There may be other issues addressed that are not on that top 10 list. But in every election since 2000, every one of the top 10 gets at least some serious consideration.

Until this year. Of the top 10 issues that Gallup identified, two are not even mentioned on either candidate’s website: number two on the list (with 87% of Americans believing it “extremely or very important”) — “reducing corruption in the federal government,” and number nine (with 76%) — “overcoming political gridlock.”

Ranked more highly than terrorism, the deficit, schools or social security, Americans want “corruption” to end. More than tax reform, or affordable access to college, Americans want “gridlock” to end. Yet neither campaign thinks it necessary to even mention these top priorities.


Let’s focus on issue number two: “reducing corruption in the federal government.” It’s clear that by “corruption,” Americans don’t mean the crimes of Rod Blagojevich or Jack Abramoff. Those scandals were long ago, and our memory is short. Instead, the only sort of “corruption” that has had the focus of the news media is the endless campaign cash that every candidate for any office is now seen obsessively to seek. Super PACs and Citizens United: these are the triggers to what we mean today by “corruption.” In response to that corruption, Americans are looking for a democracy that doesn’t seem so slimy.

Yet neither Romney nor Obama wants to talk about this corruption, though no doubt for very different reasons. Though Americans hate the system, beltway Republicans (and Romney) apparently love it. Some think it’s the only way for Republicans to remain competitive. So it’s obviously best for them to keep silent about an issue not likely to win them support. And while Obama no doubt hates the system as much as anyone, to raise it now would be to remind us that he promised to “take up that fight” to change the system, but has not yet gotten around to it. Worse, there’s something seemingly hypocritical about attacking SuperPACs while encouraging friends to send support to your own.

So it’s no surprise that the candidates won’t volunteer a plan to address this “corruption.” But why is it that they are not asked anyway? Why isn’t it the core of journalistic ethics to get the candidates to address the issues America wants addressed, especially when it is clear that candidates themselves don’t want that issue addressed?

This is a question not easily answered, because it’s not clear anymore just what a political journalist is. Candidates appear on news programs on their terms, not terms set by the show. They agree to debate only if their lawyers are permitted to set the rules and scope — which was precisely why the League of Women Voters could no longer agree to host debates. In the endless competition for access, politicians set the terms for access. And even if they don’t explicitly put issues off the table, everyone understands the consequences of making a candidate uncomfortable. There’s always a next time, unless, of course, you make things really bad for the candidate this time.

But there is one political journalist who is free of these constraints: the moderator of a presidential debate. Candidates have no choice but to show up to the debates. They have no way to hide from a question directly put. So if there’s one person the system should count on to ask the questions America wants answered but the candidates want avoided, it is the moderator of a presidential debate.

Yet no moderator to date has accepted this responsibility. Candy Crowley moderated the questions of randomly selected undecided voters — as if that would capture anything about the issues most of America wants answered. And Jim Lehrer let the rules get smothered by his need to be kind to important people — with the consequence that he never even got to the part of the debate where “corruption” might have been an issue.

In Robert Caro’s latest Johnson biography, he recounts a famous story about Johnson’s decision to take up the cause of civil rights. Kennedy had just been murdered. The nation was looking for a new leader. But Johnson was being counseled as strongly as his advisers could counsel not to bring up a civil rights bill. As Caro retells it:

[I]n the early hours of the morning… “one of the wise, practical people around the table” told [Johnson] to his face that a president shouldn’t spend his time and power on lost causes, no matter how worthy those causes might be.

“Well, what the hell’s the presidency for?” Lyndon Johnson replied.

The rest, as they say, is history.

It may be too much to wish for a president with Johnson’s strength of character. But is it too much to wish for moderator who is Johnson-like? Too much to wish for a moderator who wonders, what is being a moderator for?

It’s not the job of the moderator to be liked. It’s not the job to seem agreeable. The job is to make sure that America understands what the candidates believe about the issues that America cares about. Moderator laissez faire won’t get us there. A real political journalist just might.

The No Lobbying Pledge

There are campaigns that attack the enemy directly — think the British, in formation, Redcoats smartly cleaned. And then there are campaigns that attack indirectly — think of a virus, passing on a handshake, entering the body at the next sneeze. Rootstrikers has launched a campaign of the latter sort, intended to infect the system of corruption that our Congress has become.

Here’s some background to make this campaign understandable:

The most chilling passage in Jack Abramoff’s incredible book, Capitol Punishment (2011) comes about a third of the way in. As Abramoff writes:

After a number of meetings with [the chief of staff], possibly including meals or rounds of golf, I would say a few magic words: “When you are done working for the Congressman, you should come work for me at my firm.” With that, assuming the staffer had any interest in leaving Capitol Hill for K Street — and almost 90 percent of them do — I would own him and, consequently, that entire office. No rules had been broken, at least not yet.

Abramoff is describing perhaps the core of the corrupting influence that has evolved within our Congress — that too many, including Members and their staff, view Capitol Hill as a “farm league for K St.” No one wants to be a congressman forever (anymore). And with a potential salary increase of 1,452 percent (as calculated by United Republic), it’s easy to see why so many would keep their eyes on the real prize — a job as a lobbyist.

This fact is devastating for the prospects of reform. Any meaningful change of the corruption that is this system will certainly radically reduce the financial benefits of being a lobbyist. Lobbyists will never be eliminated, and neither should they be: they serve an essential role in advising the government about the effect of the government’s actions, or inactions. But the value of lobbying services would fall dramatically if Congress were to adopt a system for funding elections that would remove the lobbyists from the center.

And thus the inherent conflict of interest that any reform would face: The very Congress that would be asked to vote for reform would be filled with people who have an interest against reform. To vote for reform would be to vote against a 1,452 percent pay increase. Who among us could do that?

What reformers thus need is a Congress without that conflict: Members who could not benefit from the bonus of being a lobbyist, and thus who could vote honestly and fairly about any proposals for reform.

Enter the No Lobbying Pledge.

The “No Lobbying Pledge” is a promise by a candidate that if he or she is elected then, for 10 years after serving in Congress, he or she will not profit from providing any “lobbying services.” The pledge doesn’t try to restrict what ex-Members can do. It simply blocks them from earning money from the provision of “lobbying services.” It is a pledge that a candidate openly and formally makes, by signing a document that makes clear his or her commitment, and posting that signed pledge for the world to see.

This pledge is not like the ordinary pledge that candidates are now routinely asked to make. Many good souls — No Labels, in particular — are rightly opposed to pledges that purport to limit the freedom of legislators to make legislative judgments based upon their view at the time of what makes sense. But that is not what the No Lobbying Pledge does. It does not constrain any decision by a legislator while she is a legislator. It is a pledge about what she will do after she has served in Congress. And it is motivated by the concern that — like Abramoff’s chiefs-of-staff — farm league congressman won’t keep their eye on the ball.

Our challenge now is to build a movement to get candidates to take the pledge. Today, we announce the first: Representative Jim Cooper, a Blue Dog Democrat from Tennessee, who has been elected to Congress eleven times, and who coined the phrase, “a farm league for K St.” A committed reformer of Congress, we could imagine no better member to be the first to take the pledge.

Now we just need 800 more. At our site, we have provided the infrastructure for fueling twitter campaigns to get members to sign.

But what’s really needed are citizens to show up to a candidate event and ask the candidate directly: “Will you promise to work just for us, by taking the No Lobbying Pledge?” This is an uncomfortable question to ask, because everyone understands that it is an uncomfortable question for candidates to answer. But if we’re to end this corruption, and restore this Republic, this is the courage of citizens that it will take.

So join us. Go to the site and download the pledge. Launch a twitter campaign to ask candidates in your district to take the pledge by uploading a challenge. Go to a candidate event and ask the question. Indeed, have a friend video you asking the question, and we’ll post it and promote it. Do everything you can do to get both candidates in your district to take a position. And after you do, let us know, and we’ll take it from there.

It is a long road to reform. We will get there, I am convinced. But we must first destroy the resistance to reform that now lives within this Congress. The No Lobbying Pledge is the virus to achieve that destruction.
(Original post on HuffPo)

The Great Promise of Super-PACs

There’s a certain terror to the life of a Member of Congress that, with all their pomp and pretense, it’s easy to miss. This terror is new. No one yet knows precisely how to tame it. And it may ultimately prove to be the single most important motivator to real campaign finance reform.

The terror runs something like this: An incumbent goes into an election, fairly confident about her prospects. Money in the bank, polling in the low sixties, an opponent with little chance to close the gap. Then 30 days out, a super-PAC drops half a million dollars in the district, funding attack ads, and ads that support the challenger. Very quickly, an easy reelection is thrown into doubt.

Incumbents are beginning to recognize this pattern. The most terrifying bit — in the short term, at least — is how they are reacting. They can’t hope to hold in reserve enough money to respond to such an attack — funders don’t contribute to million dollar surpluses; they send their money to candidates on the edge. Nor can they turn to their largest contributors after the attack begins — by definition, those contributors have maxed out. There’s nothing more they can do.

So the incumbent has but one obvious insurance policy: super-PACs on her own side. To secure the protection the incumbent needs, the incumbent cozies up to the large but independent funders on his or her side, so that if a bomb gets dropped, there’s a ready supply of bombs to support the incumbent.

And how do you cozy up to a super-PAC, to guarantee they’ll defend you — “independently,” of course — if terror raises its ugly head? By behaving in the way that super-PAC demands. “We’d love to be able to help you, Senator, but our charter requires that we only support candidates who get 80% or better on our score card.” Incumbents thus work hard for good (super-PAC) grades. And like superpowers in a cold war, allegiance is secured with a simple understanding of defense.

This dynamic was first explained to me by former Senator Evan Bayh (D-IN). Bayh was on a panel about campaign finance reform; he was responding to a skeptic’s claim that there was no real evidence that money mattered to a Senator’s decisions. I left that panel convinced that there was little an incumbent could do to maintain her independence.

Then I met Congressman John Sarbanes.

Sarbanes is a three-term Democrat from Maryland. He is the son of the former Senator, who began his career in the same district. Over a glass of water at a local restaurant, Sarbanes explained to me his idea for super-PAC insurance — an idea that required no compromise of principle, and indeed, one that would only strengthen the incumbent’s support.

The key is small dollar contributors. If Sarbanes had an army of small dollar supporters, then he’d have someone to turn to if he were attacked. Someone who has given $50 in the past is likely to be able to give $50 again, especially in an emergency, especially to protect “her congressman” against an “outsider’s attack.”

But it’s not easy to gather small dollar contributors. Indeed, for congressional races, it almost never makes sense. A single large contributor is worth 100 $50 contributors. Most incumbents thus find it easier to raise from the top down. It takes real discipline to raise from the bottom up.

So Sarbanes has done something that possibly no one else in the history of politics has ever done: He has formally and voluntarily tied himself to a funding structure that forces him to raise small dollar contributions. Sarbanes has established two “challenge funds,” both now fully funded. The first fund (worth $500,000) can be drawn upon only when Sarbanes recruits 1,000 small contributors. The second (with $250,000) can be drawn upon only when those contributors have given at least $50,000. Until he hits the 1,000 contributor, and $50,0000 in contributions mark, he can’t touch the $750,000 in the funds. But once he does, his campaign will be fully funded — with super-PAC insurance bundled in for free.

Not many in Congress are likely to follow Sarbanes’ lead. His ingenious idea takes real work. But if envy for his independence among Members grows, there is an obviously easier way to get the same protection: proposals like the Fair Elections Now Act, that would amplify the value of small contributions, or as I’ve proposed, a simple tax rebate in the form of a democracy voucher of $50 per voter, that would flood the field with small dollar contributions. Or even better, a constitutional amendment that limited the ability of super-PACs to drop bombs in the first place. Or even better still, a mix of both small dollar funding legislation and a limit on super-PAC power. Any of these reforms would give Members for free what Sarbanes is working overtime to earn: the independence necessary to be free to lead.

And thus may this innovation turn out to be a story with hope. For the current system is not stable. Until the rise of super-PACs, the system favored the incumbents. Now the incumbents work for the super-PACs. It is a demeaning and demoralizing life for people who like to think highly of themselves and the institution they serve. At some point they will get that they can fix this. Soon after that point, they just might.

Meanwhile, you could support this movement for a Congress “Free to Lead” (as Buddy Roemer puts it) by joining Sarbanes’ army. Or at least by thanking him for his idea.