Politics & Policy

Professor Lessig Is In

Not running for Congress, but having an impact.

Stanford professor Lawrence Lessig hates corruption. He hates it so much, in fact, that last year he announced he’d be shifting away from his work on copyright and trademark law — on which he’s one of the leading experts in the country, especially when it comes to emerging digital, broadcast, and Internet technologies — to focus on it. He hates it so much he considered running for Tom Lantos’s seat in Congress, at the behest of an Internet campaign to draft him. (After a few days of soul-searching, he decided against it.)

The shift to studying politics isn’t a dramatic as it may sound, however. Lessig was a teenage Reaganite, and later a noted libertarian, before drifting leftward — he now calls himself a “progressive Democrat.” Along the way he clerked for judge Richard Posner of the United States Court of Appeals for the Seventh Circuit, widely considered one of the most influential jurists of the past century, and Supreme Court justice Antonin Scalia.

Also, Lessig has long been active in the “free culture” movement. He is the founder of the Center for Internet and Society, CEO and founder of Creative Commons, and a board member at that Electronic Frontier Foundation.

Lessig recently discussed these and other issues with National Review Online.

NRO: Tell me more about your plan to remove money from politics.

Lessig: I wouldn’t call it a plan to remove money from politics. The idea is to really get us back to an earlier place, but the strategy would be that members or candidates would make a pledge. And the pledge would have three components. One, you’re not going to take lobbyist or PAC money, whether it’s PAC money from corporations or PAC money from unions. Number two, you’re going to vote to abolish earmarks. Hard to do to figure out exactly how you’d structure such a proposal, but that’s the commitment — you want the economy of earmarks to disappear. Three, you would support public financing of campaigns. And that’s very vague because I don’t think we actually know right now what would work best or how to do it.

But the point is that if a significant number of members commit to these proposals, that would change the economy of influence for how things function inside Congress. I want to be very clear about what I think the problem here is. I don’t think anyone is being bribed although, of course, there have been cases of bribery. And though there are many people who think there are a lot of really sleazy things happening with earmarks and benefiting local congressman, I’m not attacking these because I think somehow that congressmen are feathering their own nests. I think that what the research about lobbying practices shows is that the only thing it does — but this is an important thing — the only thing it does is shift the focus or attention of members of Congress toward those issues or those positions that happen to be well-financed and supported.

While many times these positions will be right, and that’s why they’re well-financed and -supported, it skews the process of consideration in a way that makes it easy for really pretty important policy mistakes to get made. As I outlined in a talk, the most catastrophic of these has been the global-warming debate, but if you look across the range of policy issues, the effect of this kind of special-interest influence is to make it harder for policymakers in Congress to focus on what the right answer is, as opposed to what answer makes it easier for them to get a fundraiser at some cocktail party, or what answer makes it easier for them because they’ve got a pile of research provided by a set of lobbyists.

So I don’t want a world where there are no lobbyists — I think lobbyists are essential. I think the message of lobbyists and the training of lobbyists is essential. Just like I think that what lawyers do before the Supreme Court is essential. But just as I think everybody would think it weird if a lawyer before the Supreme Court would send $100,000 to the Justice Roberts Retirement Fund or $100,000 to the Renovate Justice Roberts’s Office Fund, I think we better recognize there’s something perverse about a member of Congress having one of the people who is trying to persuade him what the right answer is raise $100,000 for his campaign. That’s the link we’ve got to break.

NRO: There’s been a lot of talk about different schemes, ways for politicians to avoid taking tainted money. The conservative answer to this is that the only surefire way deal with the negative influence of money and politics is to route less money through Washington and decrease the scope of what Washington regulates.

Lessig: Well, I think that’s profoundly correct. In fact, one of the reasons why the Framers were small-government people was not a deep belief in libertarianism but a recognition that the more money flows through Washington, the more risk of corruption. John Quincy Adams’s administration was the first one that blew out because of the extraordinary amount of corruption in the crude sense, because of the expansion of government bureaucracies at the time.

One of the biggest targets of reform that we should be thinking about is how to blow up the FCC. The FCC was set up to protect business and to protect the dominant industries of communication at the time, and its history has been a history of protectionism — protecting the dominant industry against new forms of competition — and it continues to have that effect today. It becomes a sort of short circuit for lobbyists; you only have to convince a small number of commissioners, as opposed to convincing all of Congress. So I think there are a lot of places we have to think about radically changing the scope and footprint of government.

Most interesting to me was when I was doing research very early on about this, and I talked to someone who was in the Clinton administration. They were talking about Al Gore’s original proposal for Title VII of the Communications Act. Title II deals with telecom and Title VI deals with cable and Title VII was going to be an Internet title. And Title VII was going to basically say, no regulation except for minimal interconnect requirements — so it would be taking away both DSL and cable and putting them under one regulatory structure that minimized regulation of both. When this idea was floated on the Hill, it was shot down. The answer came back was, “We can’t do this! How are we going to raise money from these people if we’ve deregulated all of this?”

So I completely agree. I think we’ve got to recognize that the way the system has functioned is to insinuate regulation in all sorts of places that aren’t necessary in order to fuel this political machine of fundraising. There’s this great speech of Ronald Reagan’s in 1965 where he talks about how every democracy fails, because once people realize they can vote themselves premiums, that’s what they’re going to do, and they’ll bankrupt the nation. Well, he had it half right, in the sense there’s a system where people realize they can vote themselves the benefits and destroy the economy. But it’s not the poor who gathered together and created massive force in Washington to distribute income to them. It’s this weird cabal of politicians and special-interest insiders that have achieved this effect. Basically, they can pervert the economy and growth in ways that protect and benefit certain interests.

I’ve read National Review from the age of twelve. I’m a liberal Democrat and I’m proud to be called a liberal Democrat. But the core values that true National Review people talk about in this regulatory context are ones that I understand and in many contexts would wholeheartedly endorse.

NRO: Reihan Salan, a fairly well-known political writer and blogger on the right, recently noted that you call yourself liberal, but clearly your worldview comes from a lasting engagement with conservative ideas. If you were a teenage Reaganite and then a libertarian, what caused you to drift left?

Lessig: My sense of responsibility has changed — responsibility to society. And what’s so weird about the current time is that to argue for that is not as radical as it would have been to argue for that in 1960. For example, one of the things that I think is outrageous about what’s happened in the recent past is that most of the kind of distortions that I would point to and say, “We’ve got to fix this,” are distortions that were shifting wealth and benefits to the richest in our society. I’m not talking about tax cuts — that’s a totally separate issue. I’m just talking about regulatory and fiscal structures, successful efforts to shift wealth from the middle to the top.

I find that wrong. And responsibility in my view is that those who are wealthiest, in the strongest position, shouldn’t be using their power to further benefit themselves, using their power over government to benefit themselves. At a minimum, they should bear the burden as much as anybody else and more than that, they should take the view that their responsibility is to make sure the worst off in society have some opportunity. And that means taking care of education, making sure public education functions in the way it is intended to function, and to make sure that health-care systems function in the way that is most efficient. All of these things are the focus of the Democrats right now. I think can be understood as extensions of what it means to be responsible members of society.

NRO: I can understand why you think that’s the Democrats’ focus, what I’m wondering about is the actual mechanics of the solutions. I think most conservatives wouldn’t disagree with you at all about regulatory benefits — Big Business can certainly be as intrusive and detrimental as Big Government. I’m curious to see how you’re going to match up with the Democrats given these libertarian ideals of yours often conflict with their statist tendencies.

Lessig: I guess we’re going to have to take it when we hit it, see how things match up or clash. I’m not apologizing that I believe there is a role for the state. But I am going to say that you have to structure it so that it’s not captured by special interests and being perverted from a minimally intrusive, efficient regulation necessary into a protect-the-most-powerful-class-against-competition regulation.

I think if you look across the history of regulation, you get this time after time. Look at copyright regulation. It is a massive invasion in the innovative process that has been pushed and extended by special interests inside Washington, who have done nothing more than try to use government to protect their business models against new forms of competition. And I think you can see this in a hundred different areas.

I don’t think a liberal should shy away from saying we understand government gets captured. That’s a truth that political scientists have taught us from the day FDR went to Washington — we should learn from that and we should try to respond to that not by saying, therefore there shouldn’t be government. I think in places there ought to be government, but by being really clear to get rid of regulations of government where they’re not serving anything except special interests that happen to have the power to get them into place.

NRO: Why did you decide not to run for Congress?

Lessig: The race was a special election being held on April 8. It became clear it was going to be impossible to achieve any recognition of the campaign or the issues in 30 days. The fear was that a failure would be an indictment of the reform movement.

NRO: Would you consider running again?

Lessig: I wouldn’t rule out anything, but I only would run if I thought that it would be something that would help out the reform movement. But I haven’t upset my life altogether that much yet.

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