Lessig Blog Archives

The hysteria that has broken out among we on the left in response to Obama’s voting for the FISA compromise was totally predictable. Some more cynical types might say, so predictable as to be planned. National campaigns are dominated by people who believe a leftist can’t be elected to national office. That means events that signal a candidate is not a leftist are critical for any election to national office.

But without becoming part of the cynical plan, some reactions to the outrage.

1. Obama is no (in the 1970s sense) “liberal”: There are many who are upset by this who believe this (and other recent moves) shows Obama “moving to the center.” People who make this argument signal they don’t know squat about which they speak. You can’t read Obama’s books, watch how he behaved in the Illinois Senate, and watched how he voted in the US Senate, and believe he is a Bernie Sanders liberal. He is not now, and nor has ever been. That’s not to say there aren’t issues on which he takes a liberal position. It is to say that the mix of views he actually has and has had doesn’t map on a 1970s spectrum of liberals to conservative. He is not, for example, “against the market,” as so many on the left still make it sound like they are. He is for same-sex civil unions. So if you’re upset with Obama because you see him shifting, you should actually be upset with yourself that you have been so careless in understanding the politics of this candidate.

2. Obama has not shifted in his opposition to immunity for telcos: As he has consistently indicated, he opposes immunity. He voted to strip immunity from the FISA compromise. He has promised to repeal the immunity as president. His vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important. Whether it is more important than telco immunity is a question upon which sensible people might well differ. And critically, the job of a Senator is to weigh the importance of these different issues and decide, on balance, which outweighs the other.

   This is not an easy task. I don’t know, for example, how I personally would have made the call. I certainly think immunity for telcos is wrong. I especially think it wrong to forgive campaign contributing telco companies for violating the law while sending soldiers to jail for violating the law. But I also think the FISA bill (excepting the immunity provision) was progress. So whether that progress was more important than the immunity is, I think, a hard question. And I can well understand those (including some friends) who weigh the two together, and come down as Obama did (voting in favor).

3. Obama’s shift was in his promise, as relayed by a member of his staff, to filibuster any bill with telco immunity: First, and most obviously, that promise was a stupid promise. However important holding telcos responsible is, certainly there is something more important that Congress could have done. E.g., if telco immunity were tied to a bill requiring a 70% reduction in green house gases by 2015, would it make sense to filibuster that bill?

   But second, even given it was a stupid promise, in my view, it was political mistake to change — even if it was the right thing to do from the perspective of a U.S. Senator.

   It was a political mistake for the reasons I’ve already explained: it was self-Swiftboating. This shift is fuel for the inevitable “flip-flop” campaign already being launched by the Right. Their need to fuel this campaign is all the more urgent because of the extraordinary “flip-flops” of their own candidate. So anyone with half a wit about this campaign should have recognized that this shift would be kryptonite for the Barack “is different” Obama image. Just exactly the sort of gift an apparently doomed campaign (McCain) needs.

   But again, to say it was a political mistake is not to say it was a mistake of governance. To do right (from the perspective of governance) is often to do wrong (from the perspective of politics). (JFK won a Pulitzer for his book about precisely this point.) So at most, critics like myself can say of this decision that it was bad politics, even if it might well have been good governance. Bad politics because it would be used to suggest Obama is a man of no principle, when Obama is, in my view, a man of principle, and when it is so critical to the campaign to keep that image front and center.

4. Unless, of course, it was good politics: I actually don’t personally believe that this was a decision motivated by politics, because, again, I’ve seen the actual struggle of some who advised on this issue (and I wasn’t one of those few), but we should recognize, of course, that this decision to pick a fight with us liberals may well have been worth more than the campaign would lose by this one clear example of flipping. And here, if you let cynical instincts run wild, there’s no limit to the games that might be imagined. For what better way to demonstrate (accurately, again, for remember #1 above) that Obama is not beholden to the left than by this very visible fight that Obama doesn’t cave in on. When I received the blast from Moveon, demanding that Obama reverse himself (again), it was absolutely clear that he wouldn’t. For how could he reverse himself then, and avoid the tag of being tied to the left? And certainly (more cynicism) Moveon recognized this. What greater gift than a chance to act independently of a movement that (while good and right and true, in my liberal view) is not anymore a spokesman for the swing votes that will decide this election.

5. But assume you reject #4 completely. Then one more thought: Isn’t it time for Obama to resign from the Senate? Why should he allow the weird framing of issues that will come from this spineless institution to define his campaign? (Notice, McCain didn’t even deign to show up.) Why not simply confess to his constituents that he can’t do his job as United States Senator from Illinois while running for President of the United States. That the clarity of message necessary for the latter isn’t consistent with the obligation of compromise required for the former?

6. Finally, and 2bc: please, fellow liberals, or leftists, or progressives, get off your high horse(s). More on this with the next post but: it is not “compromising” to recognize that we are part of a democracy. We on the left may be right. We may be the position to which the country eventually gets. But we have not yet earned the status of a majority. And to start this chant of “principled rejection” of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).

   That taunt will be continued.

[breaking my “focus” injunction]:

All signs point to an Obama victory this fall. If the signs are wrong, it will be because of events last month. These events constitute a so-far-unnamed phenomenon in Presidential campaigning — what we could call “self-Swiftboating.” To understand “self-Swiftboating,” you’ve got to first understand “Swiftboating.”

Some use the term “Swiftboating” to refer to harsh, even vicious attacks on an opponent. I use the term in a more restrictive sense: “Swiftboating” is (1) attacking the strongest bits of a candidate’s character, with (2) false or misleading allegations. That was what Kerry suffered — attacking his courage as a soldier, the characteristic that distinguished him most from Bush, with misleading (at least) allegations by some who knew him when he served.

Self-Swiftboating is to Swiftboat yourself: For a campaign to do something that has the effect of undermining its own candidate’s strongest characteristic, with actions that are (at best) misleading. The Obama campaign has now self-Swiftboated candidate Obama.

(1) An attack on a core characteristic: There are at least two views about what makes Obama so compelling. One that he happens to have the mix of positions on policy questions that best matches the public’s. The other that he is perceived by the public as “different,” and hence (given the public hates politicians so) someone the public can like, or more significantly, get enthusiastic about.

I’m strongly in the second camp. It seems to me nothing more than consultant-think to imagine people choosing a President with a checklist of issues, finding the one to vote for the way they pick a place to vacation. It seems to me nothing less than obvious that people are passionate about Obama because he strikes them as a different kind of candidate — one that stands for his beliefs, that speaks clearly and directly, that can be trusted to stick by his beliefs, that says what he believes regardless. Such a creature, in most people’s minds, is “not a politician.” Such a creature (i.e., “not a politician”) is what people want in a President.

Democrats never seem to get this. The last two campaigns were lost (in my view) because the campaign was working overtime to bob and weave to match the program of the candidate to the pollsters’ latest work. That the shifts would signal that the candidate was nothing different just didn’t seem to compute. Better, for example, to have people believe the candidate (Kerry) was against gay marriage than to worry that most would see the position as a political ploy.

Republicans, on the other hand, seem obsessed with this. It was the defining feature of the success of Reagan that he made it appear as if he did what he believed, not what the polls said. It was the part Bush v2 mimicked best. It is the clear dream of the McCain campaign to do the same. “You may not like what I say, but at least you know where I stand” is the signal virtue in a GOP campaign. It is the signal blindness of a Democratic campaign.

I am not saying that Republicans are consistent and Democrats not. I am saying something very different: that Republicans believe appearing consistent/principled/different is the key to victory, where as Democrats (apparently) do not.

The Obama self-Swiftboating comes from a month of decisions that, while perhaps better tuning the policy positions of the campaign to what is good, or true, or right, or even expedient, completely undermine Obama’s signal virtue — that he’s different. We’ve handed the other side a string of examples that they will now use to argue (as Senator Graham did most effectively on Meet the Press) that Obama is nothing different, he’s just another politician, and that even if you believe that McCain too is just another politician, between these two ordinary politicians, pick the one with the most experience.

The Obama campaign seems just blind to the fact that these flips eat away at the most important asset Obama has. It seems oblivious to the consequence of another election in which (many) Democrats aren’t deeply motivated to vote (consequence: the GOP wins).

Instead, and weirdly, the campaign seems focused on the very last thing a campaign should be doing during a campaign — governing. This is not a try-out. A campaign is not a dry run for running government. Yet policy wonks inside the campaign sputter policy that Obama listens to and follows, again, apparently oblivious to how following that advice, when inconsistent with the positions taken in the past, just reinforces the other side’s campaign claim that Obama is just another calculating, unprincipled politician.

The best evidence that they don’t get this is Telco Immunity. Obama said he would filibuster a FISA bill with Telco Immunity in it. He has now signaled he won’t. When you talk to people close to the campaign about this, they say stuff like: “Come on, who really cares about that issue? Does anyone think the left is going to vote for McCain rather than Obama? This was a hard question. We tried to get it right. And anyway, the FISA compromise in the bill was a good one.”

But the point is that the point is not the substance of the issue. I’d argue until the cows come home that in a world where soldiers go to prison for breaking the law, the government shouldn’t be giving immunity to (generous campaign contributing) companies who break the law. But a mistake about substance is not why this flip is a mistake. I agree that a tiny proportion of the world thinks defeating Telco Immunity is important. The vast majority don’t even understand the issue. But what this perspective misses is just how easy it will be to use this (clear) flip in policy positions to support the argument “Obama is no different.” Here, and in other places, the campaign hands the other side kryptonite.

The issue cannot just be the substance alone. It has got to also be how a change on that substance will be perceived: And here (as with the other flips), it will be perceived in a manner that can’t help but erode the most important core of the Obama machine. It is behavior that attacks Obama’s strongest feature — that he is different. It is, therefore, Swiftboating.

Or at least, it is Swiftboating if it is false. So is it? Is the impression that this bobbing and weaving gives a misimpression? Or are we seeing, as the pundits are now beginning to chant, the true face of Obama?

(2) That is false or misleading: It is false. I know it is false because I believe I know the man, and because I know some inside the campaign struggling with these issues. I see them struggling to get it right. They are struggling, in short, to govern. The ones I know at least are not bobbing and weaving for political gain. They’re tuning the campaign as governing best requires. The flip on Telco Immunity gave Obama nothing, except the opportunity to do what he believes is right, in light of the compromises in the new bill. He acted to do what he believed was right. So the impression it gives — of a triangulator, tuning the campaign to the song of the polls — is misimpression. But that means it fits the definition of self-Swiftboating: The campaign sabotages its strongest characteristic, through steps that are misleading at best.

The campaign needs to stop this. This is not the time for governing. It is the time for making clear precisely what kind of President Obama will be. But in making that clear, it is critical to keep a focus on how actions are perceived. Will they signal a triangulator? Or will they signal a strong, principled man who stands for what he believes.

No doubt, compromise is the duty of anyone within government. But in the ADD culture we live in, compromise is poison to anyone trying to do what every politician now tries to do — appear not to be “a politician.” And thus if the oath to represent Illinois is getting in the way of signaling who Obama is, then maybe it is time to step away from being a Senator from Illinois. This is the time to keep the message focused on who (I know) this man is: someone different.

Hey HQ: You’ve got a guy who really stands for something (the tall thin guy, the one from Illinois). A man whose word really does matter. You’ve got to be extraordinarily careful not to give the other side the power to neutralize that.