As with many of my friends, the last couple weeks have brought decisions I would wish went the other way. Whether or not Obama can raise all the money he needs from small contributions, candidates for the House and Senate can’t. So I am worried about a decision that makes public funding for them less likely. I understand it. But I worry about it. Likewise, with the FISA compromise. Or at least, likewise in the sense that I don’t like the FISA compromise. Or at least, the telco immunity in the FISA compromise. I can’t begin to understand why in a war where soldiers go to jail for breaking the law, the US Congress is so keen to make sure telecom companies don’t have to fight a law suit about violating civil rights. Obama doesn’t support that immunity. He promises to get it removed. But he has signaled agreement with the compromise, which I assume means he will not filibuster immunity as he had indicated before he would. I wish he had decided differently.

But the key thing we need to keep in focus is what the objective here is. This is a hugely complex chess game. (Or I’m assuming it’s complex, since how else can you explain losing twice (ok once) to this President.) The objective of this chess game is to keep focus on the issues that show America why your candidate should win. Keeping focus (in this media environment, at least) is an insanely difficult task. But one tool in that game is picking the fights that resonate in ways that keep focus on the issues that show America why your candidate should win.

That doesn’t mean you (as a candidate) should change what you would do as President. Or change what you would fight for. But it does me that we (as strong supporters of a candidate) need to chill out a bit for about five months.

We (and I think that means all of us) can’t afford to lose this election. When we win, we will have elected a President who will deliver policy initiatives I remain certain will make us proud. If he doesn’t, then loud and clear opposition is our duty.

But that is then. This is now. And we need to remember now: you don’t sacrifice a pawn because you want to kill pawns.

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45 Responses to focus

  1. Richard says:

    Of course, politics is about the art of compromise, but running for president is also about a person’s character and ethical core: how far they will go to defend what is right.

    Obama loses points for both of these decisions in my book. I’m working hard for him, donating money, and of course will vote for him but this makes it harder to sell him as “Mr. Change Washington.

  2. Dan Collier says:

    I wish I could agree with you. However, a candidate that will go along to get along and thereby substantially diminish something as fundamental as our Fourth Amendment rights is no longer on the same side as Americans who wish to return this country to our proud ideals.

    The issue left unstated in the FISA bill is that POTS telephony is inherently insecure. However, there are many alternatives which eliminate the government’s ability to eavesdrop on conversations. Voice over IP can be encrypted, decentralized, and virtually impossible to hack. So folks that intend their communication to be undetectable will not be thwarted by this bill, they already have numerous work-arounds. FISA is not about terrorism, it is about government’s attempt to control the population and instill fear. Obama knows as much if he has any worthy technical advisers.

    And so I still prefer Obama, but I can no longer support him financially or in spirit. My focus is realizing the American ideal, not winning any one chess match or election. By supporting the FISA “compromise”, Obama has shown he does not share my ideals, nor those of our founders.

  3. Blake says:

    I agree in principle here, but I think you’re mischaracterizing a couple of key points about these events that are really what make this whole thing so infuriating.

    First, I see nowhere in his public statement where Obama has “promised” to get telco immunity removed. To me, “promise” sort of implies doing everything possible to kill the provision, so if a filibuster is off the table then it’s not a promise.

    Beyond that, I find it very hard to believe that he couldn’t have simply and quietly killed this bill in the house before it ever came up for the vote. WE (Democrats) control the House, so if it came up for a vote it’s because WE let it. This is what rankles me most about the caucus in general – they gripe constantly about not having the votes in the Senate to pass anything, and I understand that, but saying “no” to something, i.e. killing legislation we don’t like, is trivial with a majority in both houses of congress, yet they steadfastly refuse to do so. The other side has no such compunction.

    I certainly hope you’re right about Obama’s bona fides with respect to technology policy, civil liberties, etc. You’ve met the man, and I haven’t, so I have to trust your judgement and that of others in your position. From where I stand, however, I have seen nothing at all in his behavior as a senator or his voting record which indicates a strong commitment to any principle.

  4. Nick says:

    But how about the all important independent voters, voters that aren’t as smug in their convictions is assuming that “(all of us) can’t afford to lose this election.” For us, being disappointed that Obama broke his promise of campaign finance almost purely because it was to his self interest, and expressing disappointment that his rhetoric doesn’t match his actions is a major issue, indeed maybe the major issue.

    This decision should resonate more than the FISA compromise for independent voters, and if you care about shoring up Obama’s demonstrated preferences, instead of his lofty rhetoric, then I would expect someone so dedicated to getting money out of politics to be a bit more upset and a little less “understanding” about campaign finance issue, especially since Obama kept throwing out red herrings about PACs etc and McCain funding. Obama, like yourself, are takes the easy way out, the political way out, and it is causing independent voters like myself to become even more skeptical.

  5. If you remember back to the conference call when you announced Change Congress, I asked you what would stop a politician from following the program to get elected, then dumping it as soon as expedient. If I recall correctly, you answered there would be a political cost. Well, in Obama’s rejecting public financing, you’re seeing a very blatant example of those incentives, and I’d say how little anything else matters. Sure, the die-hard reformers will scream, but everyone else knows those people matter a lot less than they think they do.

    I hate to dump my bitterness and cynicism on you – but isn’t Barack Obama’s rejection of public financing a VERY bad omen? After all, a key point of Change Congress was supporting public financing. If the supposed avatar of new politics drops public financing the moment it’s no longer an advantage, isn’t that significant as to how effective Change Congress will be?

    [Note – I know the trivial answer, we have to keep trying, etc. etc. But doesn’t Obama’s action have meaning in terms of likelihood of (lack of) success?]

    Remember also what I’ve been saying all along – Barack Obama only looks so wonderful because he hasn’t been subjected to years and year of swift-boating on the one side, and making political choices that put politics over principle on the other side. I don’t think you would have cut Clinton the same sort of slack here – and that goes for either Bill or Hilary.

    Of course he’s better than John McCain, by far. But Obama’s not changing the game anywhere as much as people think.

    While Change Congress is by no means a bad thing _per se_, I’ve long thought it was a mismatch between your particular social capital and the goals you’re trying to achieve. That is, a good-government lobby group is a reasonable concept, but there’s a lot of those, and having such a group run by a Public Intellectual is not going to be a big, err, change – it might even be worse than average due to being out of the area of expertise, and falling prey to rookie errors.

  6. Harry says:

    I agree with LL on the FISA issue as well as the need to chill a bit. I disagree on the campaign finance issue, but I do think the decision was poorly presented. First, by having the funds to organize in all 50 states, Obama not only will increase his chances to get elected but also assist, directly and indirectly, many other democrats on the ballot. He also, failed to emphasize in the rationale for the decision,that both his campaign AND the DNC no longer take PAC or DC lobbyist money. The RNC is way ahead in cash on hand vs the DNC and the decision to opt out of the public financing is a way to level that field. I prefer to publically support candidates by small donations and I do not check the $3 box on my 1040, because I don’t think that system works all that well. For example, the party with the later convention has an obvious cash advantage in $/week to spend.

  7. joe says:

    Trust Obama. Trust the Dear Leader. His intentions are Right and Good. Shame on those who dare criticize Him.

    What rubbish. Obama isn’t the devil, and he’s not a saint, but he’s clearly a politician, and if the people he purportedly works for–us–put enough pressure on him to represent what’s right, he will do so. If we don’t, he’ll take and take and take.

    The watered-down response from Obama’s supporters to Obama’s shockingly un-contstitutional stance on changing a perfectly good FISA law sounds a lot like the “30-percenters” who still loyally worship Bush.

  8. Luke says:

    And we need to remember now: you don’t sacrifice a pawn because you
    want to kill pawns.

    And you need to remember that if you compromise your principles then
    you have none.

  9. Pete Tiarks says:

    It’s not so much that he’s being cynical – he is after all, running for POTUS – more that he seems to have gone from cynically thinking Americans want a change to cynically thinking that they want more of the same.

    Obama was having real success by questioning the whole Republican “perpetual war and screw the constitution” approach to terrorism. The fact that he caved this easily on FISA suggests that he’s getting a lot more conservative in his political calculations, and that, for me, is the depressing part – in a more perfect world, you could imagine him making this an explicit talking point of his campaign and hammering the Republicans for disguising their favours for lobbyists as a national security concern. It would have been a gamble, but a man convinced of both his own powers as an orator and the general feeling of disillusionment about Washington could have played for a win and tried to make that case.

    Instead, I’ve got a sinking feeling that we’re going to see Obama tacking furiously towards the centre on these sorts of issues until, come election time, his position is going to be indistinguishable from the sort of “Republicans-lite” idiocy that Hillary was pushing. Given all that, I think Lessig’s hitting exactly the wrong note here. Obama’s way ahead in the pols, November’s a little way off – his principled supporters can surely afford to let him know that, now that he’s got everyone all excited about “change”, there’s also some political risk attached to taking the easy choices.

  10. Mark Murphy says:

    I agree with the other commenters’ general assessment of “boo! hiss!” on Mr. Obama’s recent decisions, more so on FISA. I’m actually more concerned, though, about how he delivered and described those decisions.

    In the case of eschewing public financing, he spent 2-3 minutes on video explaining why he thought the current system was broken and what he wants the viewers to do about it…any nary a second on why he changed his mind. It’s not like the system changed since his earlier declarations. It’s not like the opposition changed tactics. The answer could be as simple as “This goes against what I said earlier…but that’s before I saw what you, the people, were capable of doing independently from Washington. So, yes, I’ve changed my mind, but when I’m elected, I intend to overhaul this broken system — here’s how…”. Instead, by effectively ignoring that he did change his mind, he not only puts questions in the heads of supporters but gives a truckload of ammo for his opponent.

    On FISA, he offered even less explanation for his change of mind, other than suggesting that this bill was “good enough”. I suspect that this decision was even more of a political contrivance. But, if he has good reasons for changing his mind, he needs to spell those out. In this case, the opposition won’t be able to leverage his “flip-flop” — they can’t very well complain that he came around to their side. But for those in America who think we need more transparency in government, Mr. Obama owes explanations not only for his change of mind, but why he’s hiding his reasons.

    His decision on FISA was simply appalling…but politicians make lots of appalling decisions. However, as an independent, I’m leaning in Mr. Obama’s way simply due to the hope of a more transparent and a more citizen-driven democracy with him in charge. The way he made, announced, and didn’t explain his decisions makes me just that more disillusioned.

  11. The simplest political model:

    In the Democratic primaries, Obama ran to the “left”, to appeal to the more activist base.

    Now that the primaries are over, he is positioning himself to the “right”, since the activist base is presumably his, and he needs to appeal to the more right-wing part of the electoriate.

    Hence, no big show of opposition, no filibuster.

    Let me point out that citizen-blather Internet-bibble you-Yes-YOU cyber-yadda actually gives an answer people here won’t like – remember, civil-liberties is almost by definition a minority position.

  12. Michael A. Cleverly says:

    Jack Balkin’s analysis cross-posted on Slate’s Slate’s Convictions blog and Balkinization was spot on IMHO:

    Barrack Obama plans to be the next President of the United States. Once he becomes President, he will be in the same position as George W. Bush: he wants all the power he needs to protect the country. Moreover, he will be the beneficiary of a Democratic-controlled Congress, and he wants to get some important legislation passed in his first two years in office.

    Given these facts, why in the world would Obama oppose the current FISA compromise bill? If it’s done on Bush’s watch, he doesn’t have to worry about wasting political capital on it in the next year. Perhaps it gives a bit too much power to the executive. But he plans to be the executive, and he can institute internal checks within the Executive Branch that can keep it from violating civil liberties as he understands them. And not to put too fine a point on it, once he becomes president, he will likely see civil liberties issues from a different perspective anyway.

    So, in short, from Obama’s perspective, what’s not to like?

    (Emphasis in the original.)

    Jack’s whole post is worth reading.

  13. me says:

    I agree with Richard: this is a display of Obama’s “character”.

    Those of us who’ve had the misfortune of being “represented” (word used in the loosest sense) aren’t suprised by Obama’s lack of spine. Some of us have been trying to warn about this since shortly after Obama got his free ride into the Senate.

    It’s not over. If the candidate doesn’t have a spine we voters must insert one by phone, fax, email, and withdrawal of contributions. Does everyone have his Senate info and campaign info? It’s here and here

    We admire the man who stood in front of the Chinese tanks in Tianaman Square not because he compromised but because he said No you can run me over but I won’t let you go unchallenged.

    Obama would offer to fill the tank with gas.

  14. Dan says:

    I’m disappointed by Obama’s weak/conditional/reluctant acceptance of the FISA bill. But one cannot fight every battle all at once. I’m sure there is tremendous pressure among fellow legislators regarding telco immunity, and it’s a quagmire that may distract from other issues in the campaign, especially when relatively few voters are engaged in this issue at present.

    I accept that he would right things if elected, and if he isn’t elected we have a huge number of problems to contend with above and beyond this one.

    As for rejecting public financing, I take him at his word that the system is broken beyond repair at least through this election. It’s not like this is such surprising news — we’ve pretty much known this for a long time now. If we were dealing with a system that really worked, then his decision would be appalling, but under current circumstances I basically approve. I want him to win, and the fact that he’s getting such a huge chunk of his money in small amounts from a broad range of voters is, I agree, totally in the spirit of public financing: the main goal is to reduce the disproportionate influence of large donors. Limiting private financing was merely a tool to approach that goal of “one dollar one vote” dynamics in electioneering, but other tools are acceptable as long as they have a similar effect. (Sure, it would be nice to keep all that money from going to commercial broadcasters, but that is a bigger fish to fry later on.)

    I don’t quite understand what decision here might make public funding for House/Senate races less likely, though, at least in this election itself. And then, if Obama is elected, wouldn’t he take steps to fix the public financing system, to the point where he could abide by it himself?

    And yes, of course he is a politician. You can’t play the game at all unless you are, and you shouldn’t expect that will ever change under any realistic circumstances. Making positive, meaningful change doesn’t mean you can square the circle, but maybe you can at least design the rules so that it all fits into the circle properly.

    The difference between Obama and McCain is night and day in terms of many critically important practical outcomes, so nothing here changes my opinion or dampens my enthusiasm in the slightest. I am ideological about many things, but when it comes to choosing a president I am highly pragmatic and never expect perfection.

    Obama will do many things that improve our country, but we’ll certainly have to continue to generate grass-roots force to both push him forward and protect his back in the process. It will be a collaboration, and we will continue to have an ineliminable bottom-up role in the process.

    That in itself is the most profound change in political dynamics, the beginning of real participatory citizen voice in policy-making at the federal level. I believe Obama will do what he can to pull from the top as we push from the bottom.

    Perfectionism is a defunct philosophy in any real political context, and anyone who sulks and takes their ball home is being selfish and self-defeating. Grow up and get real. Larry is right.

    Don’t let the perfect become the enemy of the good, especially when the good is the best you’re going to get this time (and in all likelihood any time in the future).

    It would be dumb for Obama to shoot himself in the foot for no good practical reason. He has to get through this election with the terms of engagement as they stand to day, not in our dreams. Only then can he work to reach that dream, because I don’t believe McCain has anything like that dream in mind himself.

    McCain’s decision is all about getting whatever financial and/or rhetorical advantage he can over Obama, or at least reducing Obama’s over him. There is nothing honorable about McCain’s acceptance of public funding: it’s his best chance to compete on resources, and if the reality went against him then he’d make the same durn decision as Obama, you can bet your sweet bippie.

    If you need to re-engage your enthusiasm, just think about SCOTUS, tax policy, war policy, health insurance policy, tech policy, governance transparency policy, etc., etc.

    And as one parting touch: We don’t live in a “trickle-down” economy, just the opposite. Wealth is created at the bottom of the ladder, by productive labor, and trickles up to collect at the top. On some occasions, resources from the top are injected downward, whether privately by investors or publicly by subsidies, but in the end the “natural” movement is upwards (due to the effect of interest and other forms of ROI, especially the point of self-generating “independent” wealth), not downwards.

    That’s why the recent stimulus was injected directly to consumers, not to the investors, because even the economists advising this jingoist administration know full well the investors or the market would never pass it on downwards, and it would never help the economy recover from recessionary trends. It’s not just the supposed time-lag of the multiplier effect, it’s that the wealth never gets there at all.

    This is one of the key differences between the two candidates, and one of the critical reasons we can’t afford McCain to continue the taxation policies of the Bush admin.

  15. Thomas says:

    No, no, no. It’s the second term that matters. You can write off the first term–of course he’s going to do some things we disagree with. But that next election, that’s the crucial one. With the freedom of a second term, I’m confident he’ll be the president we need.

  16. B.Dewhirst says:

    I am not your pawn.

    I’m with Luke above… and would add that ‘compromise’ is only possible when both sides change their position.

    The Democrats seem to think compromise means moving closer to the Republican Party… which is a lovely excuse for them doing what they’ve been bribed to do anyway.

    You’ve nothing to lose, so I had hoped you’d be showing more character.

  17. B.Dewhirst says:

    No, Thomas… surely it isn’t the second election. Obama will need to think of his Democratic successor in 2012, so he can’t make big waves, and of course they need to try to preserve their majority in the House…

    On and on, down the tubes, one step to hell at a time.

  18. I am not convinced that opting out of public financing makes a future public financing system of House and Senate races less likely. I guess the argument is that if candidates voluntarily opt into a public financing system, then they can help to prove that “public financing works”? On the other hand, I would argue that if the system only “works” when candidates opt into it against their own interests, then it’s not really “working”. A workable public finance system has to actually reward candidates for opting in, not penalize them.

  19. Publius says:

    Lawrence Lessig –

    What gaineth a man who winneth the world but loseth his soul? I will never vote for Obama – He just LOST my vote. To hell with Obama and anyone who voted for the FISA bill. It isn’t “A FISA compromise” – and to speak of it in those weasely terms is to be co-opted by Big Telecom and Big Government Doublespeak. This bill just retroactively gave immunity for the criminal activities of the Bush White house, and in fact was about as full a sell-out and suck-up to the White house as could ever be imagined. It’s not a “compromise” – it’s a wholesale coverup – it ensures that Bushco will never be exposed for criminal acts, while it expands eavesdropping and no accountability to new lows. And to hear Mr. Lessig’s knees knocking in fear that we could lose the vote on dear Mr. Obama and his “New Congress” – what a laugh – What we’ve just seen is the democrats acting as the official lap dogs of the elite – THIS IS THE NEW CONGRESS – SAME AS THE OLD CONGRESS. The democrats are no different from the republicans – they are all corporate shills who sold the citizens out for Big Business – they are bought and paid for and don’t represent the common man – they represent big business, and as such, are corporatists (aka fascists) pure and simple. The Obama campaign is just a another goddamn soap brand – only Obama, and his new congress are just “new and improved Republicans”.

    If you think there are two parties in this country then you are already blinded by accepting the premise – think outside the box, Larry – no matter what side you root for you are rooting for endless war, the Patriot Act and the loss of civil liberties, a “unitary Executive” dictator in the White house, and the takeover of congress by multinational corporations. All roads lead to Rome. Change = no Change. It’s the difference between buying a Buick and a Chevy. Or actually more like the difference between robbed by Bugsy Siegel or Al Capone.

    Complex Chess game? Bullshit. Its a simple as tic tac toe. The democrats just did the heavy lifting for the white house by voting in war funding, voting away net neutrality and voting for the FISA bill. That’s absolute proof beyond question that Congress isn’t representing you or me. Now, put “.Inc.” behind my name and let me buy off a Senator or two with a ridiculously small (relative to my profits) campaign contribution, and then Larry Boy, well then YOU’VE GOT A CONSTITUENT!

    Compromise! Ha! Sweet Lorda Jesus. Lawrence – get out of your ivory tower – for the past ten yours everything you’ve preached for – all your idealistic dreams – have dissolved like smoke in the face of outright criminal corporate power grabs – I’ve got your books on my shelf – and they are all out of date, all completely useless because you always thought that capitalism would see the value in your ideas, when in reality, 1984 by Orwell is a much better book about the future than your “Future of Ideas” will ever be. You think Capitalist Elites, who are really just Oligarchs and Feudal Lords, will buy your ideas and share power – when you really should be attacking the elites’ illegitimate right to build trusts and to abscond with the public commons. We no longer live in a representative democracy – until you wake up and see that what just happened is a huge victory for corporatism, you will forever be fighting the wrong battle – like showing up for the basketball game wearing your catcher’s mitt and mask.

    And now, here you sit, quietly saying “Don’t make waves, don’t make waves…. just sit quiet and not point out what a hypocrite Obama is. IGNORE HIS IMMEDIATE SELL OUT to monied interests (AIPAC, FISA, etc). Let’s not lose!… Obama will represent us, maybe, when he gets into the White House, he’ll stop acting like an opportunistic corporate ass-kisser and just be our bestest pal ever!” Spare me. New overseer, same Master in the plantation house.

    And the recently immunized Telecoms – these huge corporate criminals – just got the Internet handed to them with the loss of the Net Neutrality vote.. it’s their reward for selling us all out to the NSC. When the Telecoms finish turning in everyone who opposes them to the NSC. When the Telecoms start censoring content and scrubbing the angry voices off the internet, my voice will be gone, and the internet will be controlled by 4-5 major corporations and look just television: free internet will be slow and have crappy re-runs, Pay TV will have good stuff, and a bit of the really expensive TV shows will have liberal and open information – which nobody can afford to see, or will be offered so the right wing can locate their enemies. The rabble-rousers, the 9-11 truth movement, the black box voting people, and anti-establishment voices will be filtered out (or marginalized, hidden on search engines, or their website fees increased so they can’t afford to stay open), just like in China.

    But you Lawrence… you will remain, as the official handmaiden of the big Telecoms – you might be on one of those expensive channels where nobody can see you – and you can continue to preach to your little choir of believers… or you’ll be open to all, as an “official liberal voice for freedom” on Fox News – like the “Colmes” of “Hannity and Colmes” – harmless, and a useful tool for the elites. The game is up Larry, wake up. The war is over. Democracy is dead. The constitution is “just a piece of paper”, as George W. Bush said. The United States is dead (as to the ideals – the “Brand” is still alive and well – Flag sales are up – our soldiers still don’t have “Nike and “Shell Oil” logos on their uniforms… maybe the Blackwater guys do, but not the enlisted servicemen…yet). The People lost. The Corporations won. Hail Exxon! Hail Chevron! Hail Haliburton! They are the new government. The rest.. the stuff you talk about… is just a kabuki show. It’s time Larry, to start to really explore what “government by corporation” means. It means “Consumer Feudalism”. Great title for you next book, huh?

    Finally, your whole argument makes one huge false assumption – that elections in America are fair and not rigged. It amazes me to see people construct arguments about voters and winning elections, when voting in this country has been a corporate shell game for the past 15 years. Voting has been privatized – its authenticity is concealed behind corporate privacy and trade secrets – the computer programs used to tabulate votes are ludicrously “hackable”. Basically, corporate vote counts = corporate state. Until computers are entirely purged from vote tabulation, these companies (many of which started out as Republican enterprises), will determine who wins, NOT THE PEOPLE: DIEBOLD, ES&S, Sequoia, Hartin INtercivic, Inc. Authomarc, Microvote, Danaher / Guardian / Shouptronic, INkavote, Advanced Voting Solutions, Voting Technologies International, Populex, Accupoll, Avante, etc.

  20. Mike says:

    For me the FISA compromise goes hand in hand with Pelosi’s unwillingness to impeach. Leaving this president unimpeached after what he’s done is scandalous enough on its own.

    If democrats become ineffectual because of “political realities” what’s the reason again not to vote for a third party?

    I hope Obama beats McCain but it’s better for me to work towards social movements and actually giving money to people who represent me.

    If we aren’t preserving our liberties at home we can never bring “freedom to the rest of the world”. We could only, then, be spreading tyranny.

  21. Sina Kay says:

    I agree with Prof. Lessig’s argument, though I would be more comfortable couching it in terms of political capital. Sen. Obama, as someone running for president, has a certain amount of political capital to spend. He chose, as a matter of political expediency, not to fight FISA (and not get bloodied up in the process). Maybe getting bloodied up would have earned him the respect of “Publius” et al. At the same time, it loses him the respect of people who counted on him to be realistic, people who counted on him not to recklessly fight every fight that comes his way. These people have donated time and money to his campaign, largely because they believe in him, and largely because they believe he has what it takes to win in November. The former reason is wonderful. The latter reason is critical. Many people can’t and won’t support a Dennic Kucinich or a Ted Kennedy. Their reason? These people are unelectable.
    So when people give dollars/hours to Obama, they do it for two reasons: he has good ideas, and he can win. If Obama in turn spends their dollars/hours on a tough fight with relatively little reward, that’s reckless. You may dispute that this fight had “little reward” and I agree. I care deeply about the civil liberties that are being violated here, and I think FISA is a mistake. But most people frankly don’t care. Maybe they should, but if that’s the case, it’s up to Publius et al to convince them. To chastise Obama is to fundamentally and naively misunderstand our democracy.
    These points made, I think Obama is wisely spending his political capital. I would have liked to see a better outcome in FISA, and public finance. I’d also like the end of the war, affordable healthcare, better public education, a patched up social security, a simplified progressive tax system, a government tort compensation program, and so on. I don’t expect Obama to fight every dollar/hour for these goals. I like his values, I think he can win, and most of all, I hope and expect that he can pick fights in a way that maximizes real outcome. When I donate my $10 or $20 to the Obama campaign, I’m donating with the expectation that he will use it wisely. Compromise may leave a bitter taste, but it is no vice in a democratic system.

  22. Pete Tiarks says:

    I think you’re looking at this the wrong way. When you use phrases like “spending his political capital” there’s an implicit assumption that granting FISA imunity is a big political winner, and that, had Obama decided to go the other way on it, he’d have taken huge damage from the Republicans making him look soft on national security.

    That’s a very pessimistic view. The objective reality is that telecoms immunity ain’t gonna do shit to help fight terrorism, but will help a lot of lobbying groups, and that doesn’t look like a bad issue to take a stance on to me. And he doesn’t have to make a big deal out of it. Just voice your opposition, make a statement about how this bill does nothing to help fight terrorism and everything to hurt the constitution, and the job’s a good ‘un. And he can dare the Republicans to come after him, because a braver man would have enough faith in his own powers of explanation to know that every time they tried to burn them with this, they’d be handing him a golden opportunity to expose some of the worst aspects of the Republican approach to the War on Terror. Then he sets out his own stall about how to fight terrorism the Obama way, and hurts MCCain where it matters.

    Instead, he lets the Republicans frame the debate in their terms, and loses the National Security debate slowly.

  23. @Pete Tiarks: Obama doesn’t say “this bill does nothing to fight terrorism” because he doesn’t believe that. Isn’t that a good reason for him not to say it?

    What he’s said (consistently for many months) is that he’s against telecom immunity, and he’s against the lack of judicial oversight in the Bush/Rockefeller bill that passed the Senate in February, but he favors the main elements of the current FISA compromise, the expanded powers together with judicial oversight.

    You can argue that he should oppose the bill because the opposition to telecom immunity should overcome his approval of the other elements of the bill. But that’s a very different argument than to say there is nothing good in the bill. And, in my mind, the provisions of the bill that apply to future activities are way more important than the immunity element. I was much more concerned about the lack of oversight in the Rockefeller bill, than I was by retroactive immunity. And we got big improvements on that.

  24. Pete Tiarks says:


    Fair enough, I badly over-stated the simplicity of the argument he’d have to make, and you’ve got me on that.

    But does that automatically mean that holding out on immunity would have been the political loser that everyone seems to think it would have been?

    As I see it, he question isn’t whether his approval of the other elements overcomes his worries about retroactive immunity, it’s whether, by holding out, he ends up with a better bill down the line and an issue where he can make the Republicans look corrupt and incompetent, or the same bill and a bloody nose from a fight that makes him look weak on national security.

    You and Lessig seem to be saying that the second scenario is more likely – if he takes them on about telecoms immunity, he’ll lose. I want to know why you both think that’s the case.

  25. Sina Kay says:

    Great points, and I largely agree. But it is also a matter of calculation. Right now Obama is working to create an image of himself as a post-partisan uniter. Senate fillibusters of a bill unfortunately passed by both parties would open him up to a lot of shots. He’s also facing rough and tough allegations of being “naive” about foreign policy — opposing FISA would be fodder for the McCain.
    But let’s say I concede those points, and we agree that it was a miscalculation. I hope you would still agree that “now I’m not voting for him” is a non sequitur. Abstaining, or voting for McCain, signals to the country that center or left-leaning policies are not in fashion. It hints to the next Dem that supporting FISA is not enough — maybe the next Dem will feel like she has to support even the Patriot Act before becoming viable. That’s not a message I’d like to send and so I’m voting for Obama, even though I disagreed with FISA, not public financing, and especially his support for corn subsidies.

  26. Pete Tiarks says:


    “I hope you would still agree that “now I’m not voting for him” is a non sequitur. Abstaining, or voting for McCain, signals to the country that center or left-leaning policies are not in fashion.”

    Obama’s made his move, and I think it’s the wrong one and that’s sad, but what’s done is done. Sadly, I’m English/Australian and so don’t have a vote, but I get the point. Voting for McCain on this basis would be like all those Hillary supporters who were supposedly going to vote McCain so that he could… get Roe vs. Wade overturned? There’s no point in cutting off your nose to spite your face.

    My argument is more addressed towards Lessig’s “chill out” strategy, or his reasons for recommending it. The idea seems to be that you let the Republicans have their way on National Security, which hopefully keeps that quiet, and argue about other things. I think Obama can do better than that. In a weird sort of way, it’s the lack of political ambition that bothers me here.

    Also, do we really need to feed John McCain’s sense of his own importance by calling him “the McCain”? 🙂

  27. Sina Kay says:

    Thanks for the response Pete. First and most importantly, I meant “the McCain camp.” That aside, I see what you’re saying, but I’d challenge you to be more precise. It’s not that Obama is or would “let Republicans have their way on National Security.” That’s a pretty broad and sweeping statement. We’re talking about tort immunity against telecom companies. This undoubtedly violated people’s rights, but the ultimate remedy is not damages — dollars don’t compensate people for having a government that makes them feel insecure in their homes and communications. The best remedy is to have an administration more committed to civil rights and liberties, an administration led by someone who praised Boumediene, not its dissenters.
    So yeah, he didn’t take the hours or days to filibuster tort immunity for the telecom industry. But I’m not convinced doing so would have been time well spent for someone who is running for president. There is money to be raised, policies to be planned, speeches to be made, strategies to be devised. We’re criticizing Obama’s actions as a senator, with little sensitivity to the fact that he is a presidential candidate. Like you, I disagree with the tort immunity freely afforded to the telecom industry. However, I don’t think it follows that Obama had to be the champion of this cause. In fact, as I said before, doing so would have been recklessly endangering the Queen for a pawn (to borrow from Prof. Lessig’s analogy).

  28. Pete Tiarks says:

    You’re right: I am being very sweeping in lumping this into a bigger “national security” narrative, but I’m not sure that’s illegitimate. When Lessig says “the objective of this chess game is to keep focus on the issues that show America why your candidate should win”, or when you say “he’s also facing rough and tough allegations of being “naive” about foreign policy — opposing FISA would be fodder for the McCain”, I get the sinking feeling that challenging the current administration’s thinking on foreign policy and civil liberties is still seen as something you have to pay a price for doing in terms of “political capital”, rather than just the opportunity cost of the hours spent.

    I also think you can probably find a happy medium between supporting the bill in the Senate and being the “champion of the cause” against it. I’m not saying that this is the platform that Obama should run on, but he could still vote against it, state his reasons for doing so and get a few staff to stockpile arguments for why it was the right move if the McCain campaign tries to come after him on it. I just have trouble with the idea that the details of exactly what the telcos were doing for the executive branch is something that a guy running on a platform of “The War on Terror is Great” (and not a lot else) wants to bring into the light for twelve rounds of bruising political combat, but I’m outside the fishbowl looking in, and so maybe that’s just me being naive.

  29. Ben Curtis says:

    It occurs to me that the FISA bill may solidify any legal action directly against this government (or the persons responsible within it), while preventing the substantial cost of litigation against the telcos from being passed on to the consumer. Telcos do not get a free ride, unless the government gives them a piece of paper that says “It was our idea,” and signed by the various government officials who actually ordered the spying.

    Yes, the telcos went along. I wish we had good solid laws that made it clearer for corporations to more consistently do the right thing, because they are a faceless, amoral bunch driven only by their legal obligation to seek profit for their shareholders. But keep in mind that if the warrantless wiretaps were legal, then suing the telcos would achieve nothing; if, on the other hand, the program was illegal, then now we (the People) have signed confessions from the government officials in charge.

    In this program, the telcos were pawns. They certainly didn’t do it for the money, since the government is far overdue in paying them for these services. I like the idea of leaving the telcos alone, and going after the true root of the issue. I think the compromise, possibly, might turn out to be entirely in our favor.

    Unless, of course, I know nothing of some immunity that the government has when it acts against its own citizens…

  30. Pete, Sina,

    You both are confusing a vote against Barack Obama with a vote for John McCain. Progressive voters can actually send a message loud and clear to the Democrats that leaning -right- is not in fashion by voting for a more progressive alternative like (in the primary) Dennis Kucinich or John Edwards; or in the general election, for Ralph Nader or Cynthia McKinney. If Obama loses because these candidate received a large number of votes in important states, maybe then the Democratic party will learn to court progressive voters in the general election instead of fishing for votes from the putative (and arguably non-existent) “center”.

  31. Sina Kay says:

    The federal government does enjoy immunity from suits brought against it by her citizens. This derives from English common law (“the king can do no wrong”). Therefore, to sue the federal government, the U.S. has to waive its immunity. I don’t know much about federal sovereign immunity, but the two major waivers that I’m aware of are the Federal Tort Claims Act and the Tucker Act.
    The Federal Tort Claims Act is packed with important exceptions including but not limited to the discretionary function exemption and exceptions for any claim arising out of the “combatant activities of the military or naval forces, or the coast guard, during times of war.” Again, my knowledge is limited, but I remember hearing that the discretionary function test is pretty broad, and comes down to a basic two part test. First, there has to be an element of choice or judgment and second, that judgment has to involve considerations of policy designed to be shielded from tort action.
    Assuming all that is accurately stated, that does not set up a pretty picture for someone looking to sue the federal government.
    Also, your argument about the telcom companies is slightly circular. If they are to act in profit-maximizing ways, then providing tort liability incentivizes a system in which the telecom companies can profit maximize by protecting privacy. Otherwise, their incentive to protect privacy is limited to customer satisfaction. But if the federal government successfully convinces/coerces most of the telecom companies to give up customer info, then this incentive is limited (because customers can’t switch to a better, privacy protecting company). Given the high costs of entry into the highly regulated telecom industry, I wouldn’t place any bets on newcomers who promise to protect privacy. Consequently, tort liability seems like a solid way to incentivize privacy-protecting behavior.
    Corporations are a crucial and necessary part of modern society. They do well what they’re designed to do: profit-maximize. But they maximize these profits within the legal parameters set up by the law. If these parameters create sub-optimal outcomes (privacy violations), then it’s up to the government to structure incentives and legal parameters that encourage optimal outcomes.

  32. Percy says:

    Being one of Senator Obama’s constituents in Illinois, I sent him an e-mail expressing my disappointment in the recent turn of events regarding FISA. He had this to say in reply:

    Thank you for contacting me concerning the President’s domestic surveillance program. I appreciate hearing from you.

    Providing any President with the flexibility necessary to fight terrorism without compromising our constitutional rights can be a delicate balance. I agree that technological advances and changes in the nature of the threat our nation faces may require that the Foreign Intelligence Surveillance Act (FISA), enacted in 1978, be updated to reflect the reality of the post 9/11 world. But that does not absolve the President of the responsibility to fully brief Congress on the new security challenge and to work cooperatively with Congress to address it.

    As you know, Congress has been considering the issue of domestic surveillance since last year. Just before the August recess in 2007, Congress passed hastily crafted legislation to expand the authority of the Attorney General and the Director of National Intelligence to conduct surveillance of suspected foreign terrorists without a warrant or real oversight, even if the targets are communicating with someone in the United States. This legislation was signed into law by the President on August 5, 2007.

    As you are aware, Congress has been working on reforms to FISA. On November 15, 2007, the House of Representatives passed H.R. 3773, the “Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007” (RESTORE Act) by a vote of 227-189. The House bill did not provide retroactive immunity for private companies that may have participated in the illegal collection of personal information, nor does it provide immunity for Administration officials who may have acted illegally.

    On February 12, 2008, the Senate passed S. 2248, making its own reforms to FISA. During consideration of this bill, I was proud to cosponsor several amendments, including the Dodd-Feingold amendment to strike the immunity provision, which would have enhanced privacy protections while maintaining the tools to fight terrorism. However, with the defeat of this amendment, the bill did not provide for a mechanism that would allow the American people to learn exactly what the Bush Administration did with its warrantless wiretapping program and provided for no accountability.

    The House and Senate worked out a compromise, reconciling differences between the two versions of the bill before it can be signed into law. While I recognize that this compromise is imperfect, I will support this legislation, which provides an important tool to fight the war on terrorism and provides for an Inspectors General report so that we can finally get to the bottom of the warrantless wiretapping program and how it undermined our civil liberties. However, I am disappointed that this bill, if signed into law, will grant an unprecedented level of immunity for telecommunications companies that cooperated with the President’s warrantless wiretapping program, and I will work with my colleagues to remove this provision.

    The American people understand that new threats require flexible responses to keep them safe, and that our intelligence gathering capability needs to be improved. What they do not want is for the President or the Congress to use these imperatives as a pretext for promoting policies that not only go further than necessary to meet a real threat, but also violate some of the most basic tenets of our democracy. Like most members of Congress, I continue to believe that the essential objective of conducting effective domestic surveillance in the War on Terror can be achieved without discarding our constitutionally protected civil liberties.

    Thank you again for writing. Please stay in touch as this debate continues.


    Barack Obama
    United States Senator

  33. Dan says:

    To Non Auth:

    One can send messages without necessarily shooting oneself in the foot. Voting is a crude way to do it, because no one can ultimately tease apart the various reasons people vote for one candidate or another (note: specific issues often have little to do with it, in the real world of real voters’ brains). We don’t get to attach “signing statements” to our votes to help others interpret them. There’s no way to indicate that the reason one voted for X was that “Y betrayed us on issue-Q”. The message will not get through, realistically.

    A single email or phone call might actually have more focused effect than a single vote. A bulk of constituent communications might have more focused impact than a bulk of undifferentiated votes.

    In any case, until this FISA bill comes up in the Senate, statements by a senator about a House bill are suggestive at best. The real test will come when the senate considers it (and if there are any changes to it at the outset, depending on who introduces it), and how strongly Obama fights the disgusting telco immunity provisions.

    The idea of “sending messages” with one’s vote has always seemed peculiar, especially as return-channel communications begin to open up in the policy-making realm. The vote is about one’s preferences, no more, no less. Do you prefer Nader to Obama? Then vote for Nader. But be aware that in the current voting structure the only votes that will really count this time around will be votes for Obama or McCain.

    If you really think that abstaining from *that* choice is useful, in order to “make a statement” with your vote, then you are missing profound differences between the two major candidates, differences that make a tremendous difference to the future of the country.

    If we had instant-runoff-voting (voters indicate a full preference order for all candidates on the ballot, with elimination rounds until the final two candidates left receive full representation of preferences by all voters who choose to indicate a preference), then I might well vote for Nader and then Obama. So if Nader is eliminated early on, I still get a vote in the final matchup between O and M.

    But we don’t (yet?) live in such a system, and so we must choose based on the exp[ected outcome of the process before us now.

    For my part, the price of opting out of the O/M decision simply to “make a statement” is way too steep. There are other ways of making statements, and we can mobilize grass roots groundswells after Obama is elected, but doing so under a McCain administration puts the wind too strongly against us.

    Until Obama is elected, he still has limited executive power (i.e., Bush still runs the administration and can still veto bills he doesn’t like), and even as a senator he is still just one of 100 no matter how much informal influence he might begin to wield (what levers does he really have to impact other senators’ votes?).

    Politics is a dirty business, and one where in our society there is still a complicated distribution of power. Don’t expect too much from Obama while he is not yet in the executive role itself. He is *not* yet in the bully pulpit, so don’t start expecting him to already be acting as if he were.

  34. Tmack says:

    “(Or I’m assuming it’s complex, since how else can you explain losing twice (ok once) to this President.) “

    Why do you think your so smart Lessing? Your still in school, dealing with a bunch of students who you lwill decide what grade they get, given them an incentive to tell you how “smart” you are. Your arogance in writing that, like Gore’s sighs in the debates, reveals what arrogant schmucks you really are, and you don’t have clue one about it.
    I don’t like Bush, but I can’t stand you, and by extension, Obama.
    My vote will be for McCain or Barr, never Obama.

  35. Tmack says:

    “(Or I’m assuming it’s complex, since how else can you explain losing twice (ok once) to this President.) “

    Why do you think your so smart Lessing? Your still in school, dealing with a bunch of students who you lwill decide what grade they get, given them an incentive to tell you how “smart” you are. Your arogance in writing that, like Gore’s sighs in the debates, reveals what arrogant schmucks you really are, and you don’t have clue one about it.
    I don’t like Bush, but I can’t stand you, and by extension, Obama.
    My vote will be for McCain or Barr, never Obama.

  36. Dan,

    I hear your message loud and clear, and ask you to consider the following:

    1. If elected President, Barack Obama would have direct control over the Executive branch, and only indirect influence over the Legislative. This means that his policies and positions on issues like health care, education, the environment, etc. are nice to know but less important than his example, voting record, etc on matters under the control of the DOJ, foreign affairs, military, etc. Remember, the Clintons couldn’t get health care through Congress so I don’t put a lot of weight on Obama’s views on the matter either. And please pay attention to Obama’s votes on placing justices on benches and in courts.

    2. Germane to the above: in order to accomplish even a modicum of his platform, Obama will need a sympathetic Congress. The work he does to get progressives elected will reflect well upon him. On the other hand, stumping for conservative incumbents like Barrow-GA over progressive challengers (remember his support for Lieberman over Lamont?) will reflect negatively.

    I’d love to live in an IRV system – wow, how much subtle information you would glean from voting records. But we don’t. And I’d hate to help elect Barack Obama, giving him the impression that i agree with his policies. If Obama loses because he can’t energize the voters (Democrats, progressives, etc.), it’s not /our/ fault for not voting for him. The responsibility lies with him and his campaign, which may (in the general campaign) be making it clear progressives may be shut out of an Obama administration. Organizing to put pressure on a sitting President is /way/ too late in the game.

    Prof. Lessig asks us to “focus” on the goal of electing Barack Obama. I don’t agree. We’ve too often put short term goals (a single election) ahead of the need to make it clear to the Democratic candidates that they cannot win elections without progressive voters. Trolling for votes among “conservative independents” or the non-existent “center” was a losing strategy for Gore and Kerry, and will lose Obama the election as well. If that means we get McCain as president, well … to quote LL above, “loud and clear opposition [will be] our duty”. No less than under an Obama administration.

  37. One can not fight every battle.

    But one can not use “one can not fight every battle” as an excuse to not fight the core battles, defending the constitution, like officials swear an oath to do. This is the 4th amendment requirement for warrants they are tearing up, this is the checks and balances that allow judges to oversee when the executive branch wants to trample on rights which will be abandoned.

    One can fight every battle over the core parts of the bill of rights. One should.

  38. Brian Greer says:

    I have tended to vote in line with the Libertarian party for the past 12 years and had been compelled to give Obama my vote in November due to the way he has carried himself, conducted his campaign, and the general sense of conducting government business in a new way. If he does not do everything he can to stop this FISA bill from clearing the Senate (meaning it is ok for him to fail, but I need to feel like he has done everything he possibly could), you can bet that I won’t vote for him in November. Not that I would vote for McCain, because that will never happen, but I won’t leave my Libertarian values for someone who talks a good fight but isn’t prepared to actually take that stand.

  39. Tmack says:

    What is wrong with most of the commentors here?
    If you have libertarian values, like Brian Greer thinks he does, under no circumstances can you even think of voting for Obama.
    It is Bob Barr, or John McCain or out.
    Brian if you think you are a libertarian or have libertarian values while plan on voting for Obama, under any circumstances, you need to, seriously, get your head checked. That or stop taking whatever drugs your taking.

  40. Continuing the fight on the FISA issue represents a perfect opportunity to show Obama plans to Change Congress. Rolling over means nothing has changed and Barack loses my very enthusiastic support.

  41. Dan says:

    Final reply to Non Auth:

    The ultimate point here is, do you believe there is a significant difference between Obama and McCain? There is no question in my mind that the difference is profound, and that McCain would be a disaster while Obama would be an improvement, if perhaps imperfect. No doubt whatsoever.

    That is the sole criterion behind my vote for Obama. It’s enough to make a clear determination in my mind.

    All the rest is just nuance below the resolution of my vote, and does not enter into my vote.

    All the messaging you are talking about in your vote is not going to get through to anyone. What I suggest is that if you have messages to send, them them to Obama’s administration after he’s elected by phone and/or email or whatever other communication methods you prefer (but it’ll be more effective if you choose the communication methods that the admin prefers). I’m sure we’ll all have a lot to say then, and I expect that the Obama admin will be much more amenable to listening to the little guy than a McCain admin.

    Keep the messaging and the voting separate. They are meant for different purposes. Voting is a crude system of preferences, and trying to use this bludgeon to communicate nuanced messages is futile.

    If you really don’t want Obama to be president (and really prefer McCain to be elected), then don’t vote for him, but I have a hard time identifying with that sentiment, and a non-vote for Obama is half a vote for McCain (i.e., one McCain vote not neutralized that could have been neutralized). All you will accomplish by not voting for Obama is to make it that much more likely that McCain will be elected.

    It’s marginal, to be sure, but every other vote is equally marginal, and margins add up. Drops of water add up to oceans. Don’t be under the illusion that your vote doesn’t count. It counts as much as any other, and only collective action can make a difference.

    Don’t be a solipsistic individualist. Your individual vote is not exceptional in any way. It is one drop in the ocean, and the ocean needs every drop.

    PS: Under the current voting structure, third party candidates simply have no chance. Votes for them are wasted unless you *really* have no preference between the two major candidates. But I suspect very few people really have no preference when it comes to Obama/McCain. Nader is just wrong here, sorry to say, when he says the two parties (and candidates) are not significantly different. That line does not fly for me.

  42. anon says:

    I think you need to articulate why it is ok to give Senator Obama a pass now but why congresspeople should take the CC pledge and risk defeat. Which, of course, is a larger question of when the best is the enemy of the good. In your cyber hat you’ll editorialize against the orphan works compromise but in your corruption hat you’ll apologize for Obama? These two positions seem to be in conflict and its hard to understand from your posts how your world view permits two very different outcomes. Do you think getting Obama elected is the best way to further the cause, or do you just think that the cc cause is not the most important one in the election. If it is the former, how exactly does that happen once he is elected? What is the CC agenda? If it’s the latter, than as leader of the movement, you should just come right out and say so.

  43. JohnHill says:

    the ends don’t justify the means, but i guess for the left they do (and then you stand for nothing)

    I was really pulling for you and the ‘change congress’ project, but that is a very lukewarm slap down of Obama and the money game game.

    Now that Obama is raising unlimited amounts of money for the Denver DNC conference where does it end?

    sacrifice pawns? what kinda of BS is that? either stand for something or sit down and shut up

    Shame on you

  44. The Government went to the telecom companies with a request/demand. The telecom companies cooperated.

    I can see possibly being angry with the Government, but why put the telecom companies in the middle? The Government has many ways to be coercive, and completely regulates the actions and business of the telecom companies.

    Suing the telecoms for complying presumes that there is a punishable requirement to oppose a government order/request if it would later work out that the Government did something illegal. How could the telecoms know at the time?

    If a bank robber coerces the bank manager at gunpoint to open the safe, should the bank manager be sued later for complying?

  45. Sarah says:

    The honeymoon is over. Now we have to decide whether the real, imperfect Barack Obama–the one who leaves toothpaste in the bathroom sink, sometimes flirts with other women at parties, and doesn’t tell us everything he’s thinking–is still the one we want to be with. Given the alternative.

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