Lessig Blog Archives

More people I admire missing the point (for which, as I’ve said again and again, I’m happy to take responsibility but which, again and again, begs clarification): this time, Ed Brayton.

Ed says:

Lessig is arguing that that the bill is bad policy and that Conyers is being paid off by the publishing industry to get the measure passed.

No. No. And again, Ed, no. To be “paid off by the publishing industry” is a crime. It’s called bribery. To be given a campaign contribution in exchange for introducing or passing legislation is also a crime. Any quid-pro-quo for legislative action is banned six ways to Sunday.

But as I said and said and said, I am not accusing anyone of any crime. I’m not even accusing anyone of anything unethical. My charge is that by (a) introducing legislation that has no good public policy justification behind it and which (b) does not benefit your own constituents while (c) being disproportionately supported in financial contributions by the single industry that would benefit from the legislation, you invite the charge (as 88% of citizens in my district believe) that “money buys results in Congress.” WHETHER OR NOT “money bought” this result, you have committed this wrong. The wrong is the relationship, and the suggestion the relationship begs. It is not — and again, NOT — that the person accused is “being paid off” by anyone.

I make this point over and over again in the (now close to 1 billion) talks I’ve given about “corruption.” They’re collected at lessig.blip.tv. I understand how it is rational for no one (or very few) to spend the 20 to 60 minute necessary to watch those talks completely. But here’s a four minute clip about another popular Democrat. Watch this, and maybe the idea of “good soul corruption” will become clearer.

What could a “good soul” do to avoid the charge of being “good soul corrupt”? Well, the simplest is to make sure the that the only time you introduce legislation that 33 Nobel Prize winning scientists believe would harm science (or the equivalent), it plainly benefits your constituents. A bit more difficult, but certainly appropriate: As a chairman of a committee, refuse to solicit or accept contributions from the interests your committee regulates. And most important, and ultimately: pass legislation that provides for “citizen-funded elections” — so that when you support legislation with no good public purpose behind it, no one could believe it was because of the money.

And what could a good soul citizen do to end good soul corruption? Join our donor strike — strike4change.com — and thereby refuse to support any federal politician who doesn’t support this plainly corrupt system.

The usually exactly right Karl Lenz writes: “Is Lessig Shilling Against Open Access?” He laments the “damage done to the goodwill of the other side by this baseless smear.”

This is missing the point, twice.

The merits of the “open access” argument stand or fall on their own. There was a fear of some (but discounted by others) that Conyers had introduced the bill to enable it to be swept into another bill without further process. Whatever else, given he has now defended the bill to remedy the same lack of process that led to the rule the bill attacks, it is doubtful that will happen.

But I do disagree with to the suggestion this is a “baseless smear.”

It is a smear, no doubt, in the sense that it is a criticism, not so much of the man, but of a system. It is this system that produces enormous cynicism about how government works. That Conyers receives money from the auto industry and votes with their interests isn’t the sort of thing that produces cynicism, just as the fact that Senator Grassley receives money from farmers and votes with their interests isn’t the sort of thing that produces cynicism. Those sort of contributions — and votes — are the very best one could expect in a system of privately funded elections — funding that fits the interests of the district; votes that track the interests of the district.

But if there’s a very best, there’s a very worst — funding and votes that have nothing to do with the interests of a district. That’s what this bill is. Are the votes of the 14th District in Michigan benefitted by a bill that will increase the cost of access to government funded research? Is protecting publishers the principle that got John Conyers elected to Congress? Is this really — as Lenz suggests — one of his “convictions”? Is John Conyers really a Congressman who has as a “conviction” the idea that we should pay for scientific research twice? That publishers whose business model conflicts with the best business model for science in the digital age deserve Congress’ protection?

The whole point in this criticism (aka, “smear”) was that there was no good reason for the support of this bill beyond doing a favor to an important industry. And to do a favor for an industry by supporting a bill that has no good reason behind it (and 33 Nobel Prize winners, and the current and former head of the NIH against it) while receiving 2x the contributions of those who didn’t sponsor the bill is exactly the behavior that produces such cynicism.

So it is an attack, no doubt. But it is certainly not baseless. “Baseless” would have been to suggest Conyers was bribed. Of course he wasn’t — Conyers is a hero of mine and my kind (libs); we don’t believe our heros are criminals. It is instead an attack on precisely the behavior that leads 88% of the people in my district to believe “money buys results” in Congress. Conyers voting to protect GM doesn’t produce that cynicism. Conyers voting to protect a bunch of foreign publishers does.

Now if you’re someone like me who believes that this cynicism is THE problem in Congress today — if you believe that eliminating it, by restoring a system that could lead people to believe Congress was doing what it doing because of the voters, or even because of stupidity, but not because of the money, was the most important thing that Congress could do now (and especially now when all the attention that should be focused on the importance of stimulus is now focused instead on 8,000 or more earmarks said to have “larded up” the bill), then what Conyers did is precisely the sort of thing that needs to be attacked. Not just him (we’ve got others coming). Not just Democrats (we’ve been criticized already for being too harsh on Republicans). But him and anyone else who gives us a chance to point to the kind of relationship that draws this critical institution into doubt.

But I’ll confess, this isn’t a role I enjoy. It is my nature (nothing to be proud of, but this is the reality) to ingratiate, not criticize. I don’t have the courage of a Stallman. Too many of my cycles are focused on how or whether what I do will affect whether others like me. I am more comfortable on the inside than on the outside. And when we tried to find allies in this battle, I totally understood those who didn’t have the stomach for this. “Coward” is a name I’ve given myself more often than any other.

But I really really mean what I said at the end of the first post on this “baseless smear”:

This is no time to play nice.

Our government is corrupted. That is not to say members accept bribes, or that legislation is the product of a quid-pro-quo: fewer accept bribes today than at any point in our past; I doubt any legislation is the product of a quid-pro-quo. These are good people, in a corrupted system — a system that doesn’t focus where it should (on the views of the citizens of each district) but instead focuses where Members must (on where they need to raise money).

No one not benefiting from this system could defend it. Each of us, I believe, has a duty to change it. And change here will require something more than happy, glad-handing, smiles – however miserable that makes wimps like me.

Mr. Conyers says I “cross the line.” He says I label his motivations for introducing this bill as “corrupt,” that I accuse him of “shilling,” and that I “dismiss” his bill as nothing more than a “money for influence scheme.” On the basis of this “one piece of legislation,” he says I have waved away “forty years of fighting against special interests.” He insists that he has “earned a bit more of the benefit of the doubt” and “that there is far more to the ‘open access’ story than [my] muckracking tale lets on.” (Mike Eisen and my original posts are here and here. My blog post is here.)

First, as to substance: As others have shown without doubt, there is absolutely no “more to the ‘open access’ story” than my and Mike Eisen’s criticism let on. (See the rebuttals especially here and here.) This bill is nothing more than a “publishers’ protection act.” It is an awful step backwards for science — as 33 Nobel Prize winners, the current and former head of the NIH, the American Library Association, and the Alliance for Taxpayer Access have all said. And Mr. Conyers knows this. Practically the identical bill was introduced in the last Congress. Mr. Conyers’ committee held hearings on that bill. The “open access” community rallied to demonstrate that this publishers’ bill was bad for science. Even some of the cosponsors of the bill admitted the bill was flawed. Yet after that full and fair hearing on this flawed bill, like Jason in Friday the 13th, the bill returned — unchanged, as if nothing in the hundreds of reasons for why this bill was flawed mattered to the sponsors.

Second, as to “corruption”: There are corrupt Members in Congress — fewer, I believe, than at any time in our history, but the Randy “Duke” Cunninghams or Ted “A Series of Tubes” Stevens mean there must be at least some. John Conyers is not one of that class — and nothing in what I wrote said anything different. I neither accused him of “shilling” nor labeled his “motivations” as “corrupt.” The word “shilling” appeared in a question, begged by the combination of a disproportionate contribution and sponsorship of a baseless law. The word “corrupt” described a system, not a Member. Conyers is not “corrupt.” Neither are his motivations. He is instead an extraordinary representative, a hero to many of us, the last member of the Judiciary Committee to vote to impeach Nixon still sitting on that committee, and a founding member of the Congressional Black Caucus. He is an extraordinarily good soul, like the vast majority who choose to serve in government today.

But these good souls work in a corrupted system. For of course I believe that Congress is defined by a “money for influence scheme” — as do thousands of others who have joined Change Congress’s “donor strike,” pledging not to give a penny more to candidates who don’t support fundamentally reforming our corrupt campaign-finance system. (Join here.) And who could believe any differently? Not a “scheme” in the crude sense that people are bribed, or that there’s a quid pro quo, this money for that legislation. But in the very real sense that money buys access, and that Members — some of whom spend between 30% and 70% of their time raising money to get back to Congress — develop a finely honed sixth sense, constantly aware of how what they do might affect their ability to raise money.

Who could possibly think that this system doesn’t corrupt what government does? Who could possibly believe it benign? The answer of course is no one — not the least a Member like Mr. Conyers who has spent forty years watching an honorable institution dissolve into a cabal of overpaid telemarketers. Just think about it: While America is facing crises more severe than any in the past generation, many (and maybe most?) Members of Congress are spending most of their time raising money to get back to Congress. This is like firefighters who take a coffee break in the middle of rescuing a trapped child, or police officers who stop at Starbucks on the way to a robbery. What sane person can look at this system and not think something has gone fundamentally wrong?

It is time that Congress take responsibility for the cynicism this system has produced. It is not enough for good souls to insist on their goodness. A good soul must act to change a corrupted system.

Supporting citizens’ funding of the nation’s elections — as Mr. Conyers has — is an important first step. That one change, I believe, would do more than any other to restore trustworthiness in Congress.

But that’s not all you could do, Mr. Conyers. You have it within your power to remove any doubt about the reasons you have for sponsoring the legislation you sponsor: Stop accepting contributions from the interests your committee regulates. This was the principle of at least some committee chairmen in the past. It is practically unheard of today. But you could set an important example for others, and for America, about how an uncorrupted system of government might work. And you could do so without any risk to your own position — because the product of your forty years of extraordinary work for the citizens of Michigan means that they’ll return you to office whether or not you spend one dime on a reelection. Indeed, if you did this, I’d promise to come to Michigan and hand out leaflets for your campaign.

Until you do this, Mr. Conyers, don’t lecture me about “crossing a line.” For I intend to cross this line as often as I can, the outrage and scorn of Members of Congress notwithstanding. This is no time to play nice. And yours is just the first in a series of many such stories to follow — targeting Republicans as well as Democrats, people who we agree with on substance as well as those we don’t, always focusing on bad bills that make sense only if you follow the money.

Whether you’re a Republican or Democrat, you can help us. Join our strike4change, refusing to support any candidate who doesn’t support citizens’ funding of the nation’s elections. Or volunteer to help us track down more examples like this one.

We will take the heat from the elected elites. From you, we need just the support it will take to show enough that real change must happen — now.

Read it here. I’ve got a father-in-law’s 70th birthday, and a reply brief to complete before a response. But stay tuned (and pitch in if you can).