Lawrence Lessig Takes On "the Funding Fathers"

By Steve Weissman, Reader Supported News

01 May 13

lease spare Lawrence Lessig, the brainy defender of Internet freedom and foe of over-reaching copyright protection. He is not one of those shysters Shakespeare targeted with his timeless advice, "The first thing we do, let's kill all the lawyers." Or have I been a bit naive about a secular saint at whose shrine I often worship? Is Lessig the lawyer a politically liberal exemplar of the inbred limitations of the world's least loved profession? This was a question I pondered more than once as I devoured his wonderfully thought-provoking TED Talk and accompanying eBook, "Lesterland: The Corruption of Congress and How to End It."*

More dramatically in his talk than in the book, Lessig points out that the United States has two types of elections. "One we call the general election," he says. "The second we should call the money election," in which only a tiny handful of funders get to vote. "To run in the general election, you must do extremely well in the money election." The rest of us get to vote, of course, "but only after the funders have had their way with the candidates who wish to run in that general election." And "obviously this dependence upon the funders produces a subtle, understated, camouflaged bending to keep the funders happy."

"The funding fathers," as I like to call them, are "the cronies in the epithet ‘crony capitalism,'" Lessig explains. And they use their funding primarily "to protect themselves from competition," buying the power of the state and its regulatory mechanisms to defend them from other, usually newer and smaller businesses.

Lessig's understanding of how Big Business piggy-backs on Big Government is political dynamite, bringing together the Left and Right. Those of us in the New Left of the 1960s called the practice "Corporate Liberalism," and we saw its origins in the widely misunderstood reforms of the Progressive Era at the beginning of the 1900s. Lessig displays an overly positive view of the old Progressives and would do well to read James Weinstein's trail-blazing book, "The Corporate Ideal in the Liberal State, 1900-1918."

Perhaps fearful of offending possible supporters among today's Corporate Liberals, Lessig is too good a lawyer to pursue his argument to its logical conclusion. Indeed, he goes out of his way to warn Occupy Wall Street that "We don't need to attack [all] ‘corporations' to attack this corruption." But, even if Lessig prefers not to say it, an understanding of Corporate Liberalism as an ideology, a governing structure, and a source of political contributions helps explain how a modestly liberal Obama continues to give aid and comfort to too-big-to-jail bankers, and how Big Pharma and the Health Maintenance Organizations will make out like bandits from Obamacare.

Lessig also explains better than most the insidious way that this Corporate Liberalism corrupts Congress. He tells the story of Vice President Al Gore's effort to deregulate a significant portion of the telecommunications industry. Gore's team took the idea to Capitol Hill, which balked. "Hell no," the politicians responded. "If we deregulate these guys, how are we going to raise money from them?"

"The need to raise money thus tilts Congress members toward preserving the extortion-like power that only a regulator (or thug) can leverage," writes Lessig. "You can extort only if your target needs something from you. And a potential funder has greater needs from Congress the more Congress regulates the things that funders care about."

"What's bad for America might well be good for funding campaigns," Lessig concludes.

How do we clean up the corruption? Lessig's solution is NOT to take the money out of politics, as others have suggested, or even to focus our energy on trying to undo the Supreme Court opinion in Buckley v. Valeo (1976) that money is speech or in Citizens United that corporations should be given even more of the rights we used to reserve for human beings. "I agree that Citizens United is a real problem," he writes. But, even before the Supremes unleashed the Super Pacs, the corruption that campaign funding promotes "was already flourishing" and "our democracy was already broken."

For Lessig, the answer is to provide "citizen-funded elections." Candidates for Congress would fund their campaigns with small-dollar contributions only, and government would match those contributions at, say, 5 to 1.

This seems worth discussing. But how do we get from where we are to where we want to get? Lessig takes an overly-lawyered view. Just as socialists and social democrats place too much faith in the state, and many progressive economists still believe in the efficiency of markets far more than any real-world evidence would support, the lawyer in Lessig sees the power of reasoned argument as the major force for social change. Would that he were right!

Much impressed by Martin Luther King Jr., Lessig credits King's success to his embracing a nonviolent message that "the white people … will be more willing to hear." No doubt that played a role. But Lessig seems oblivious to the disruptive, provocative, and often offending power of King's nonviolent direct action, which carried with it the threat of massive white violence that would make America look terrible in the eyes of the world. As presidents Kennedy and Johnson both understood, this was an especially potent threat at a time of Cold War competition with the Soviet Union.

Lessig also fails to see that the more violent advocacy of Robert Williams, Rosa Parks, Malcolm X, the Black Panthers, and even the big city rioters also played a role in securing civil rights for black people. Like Lessig, I might prefer non-violence, but that does not justify white-washing history.

In the end, arguments alone will not end the corruption that Lessig describes so well. Nor will the limited civil disobedience his lawyerly mind permits, insisting that activists uphold the state's authority by willingly submitting to punishment for whatever laws we might break. As he wrote a few days ago to one of his law school colleagues and on his blog, "Without accepting responsibility for one's actions, breaking a law you oppose is not civil disobedience."

This is an old idea, going back to Socrates drinking the bitter hemlock to uphold the Athenian state and its rule of law. But it is no longer persuasive.

Those who fought for free speech at Berkeley in 1964 took a completely different view, which went on to prevail among non-violent anti-war activists throughout the country. We refused to uphold the state's authority. In the unforgettable words of Mario Savio, America's best-known student leader at the time, why should we be punished for breaking the law? We should all get medals for being right. His tone might seem a bit arrogant, but when Mario was right, he was right.

*A tip of the hat to my tireless email buddy Martha Ture for bringing them to my attention.

A veteran of the Berkeley Free Speech Movement and the New Left monthly Ramparts, Steve Weissman lived for many years in London, working as a magazine writer and television producer. He now lives and works in France, where he is researching a new book, “Big Money: How Global Banks, Corporations, and Speculators Rule and How To Break Their Hold.”

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