

Lawrence Lessig: How to Get Our Democracy Back - kriyative
http://www.thenation.com/doc/20100222/lessig

======
tjic
When a group (whether it's citizens with a hobby, a union, a corporation, or a
church) sees that government is throwing it's $3 Trillion/year bulk around in
their neighborhood, they - rationally - try to buy off the government so that
it does not destroy them or do them harm.

The solution is not to restrict speech - the solution is to get politics out
of so many questions by getting the government out of those issues.

Once upon a time doctors did not feel the need to lobby the government ...
because the government did not feel the need to regulate the prices and
conditions under which doctors did their work.

Once upon a time target shooters did not feel the need to lobby the government
... because government did not feel the need to regulate every aspect of the
hobby of shooting.

Lessig is way off base here. He's a big government statist, but he doesn't
want folks who disagree with him to have the power to influence the
government.

~~~
azgolfer
Yes and the brilliance of the founders was creating a very limited federal
government. The aristocratic senate and the house 'of the people' had to
agree. The bill would get vetoed by default. One senator could stop any bill
by filibustering. The bill of rights prevented state governments from gettting
out of control...

~~~
jbooth
The abuse of the filibuster for one senator to stop a bill is actually a
recent parliamentary invention. There's no constitutional mechanism for the
filibuster, it's based on senate rules which are adopted every 2 years.

Historically, 40 senators could prevent debate from being cut off but they
would need to all occupy the chamber and actually be debating the whole time.
See Strom Thurmond reading the phone book on the senate floor during the civil
rights filibusters, for example.

But that took a bunch of time, time you could be at fundraisers or hanging out
at home or whatever. So they made it easier over recent years, with the result
that the current Senate filibusters more than twice as much as the last one,
which itself filibustered more than historically, etc.

~~~
drags
The tradition of unrestricted Senate debate has been a part of the Senate
since the inception of the republic. In fact, prior to 1917, there was no
mechanism for ending debate so long as any single senator desired to speak.
And given that Congress used to meet much less frequently than it does at
present, it was commonplace for bills to be "filibustered" simply because a
single senator didn't like the bill, and other more pressing bills (read:
supply bills) needed to be taken up before the end of the session. The idea of
making someone speak in order to stop debate from ending was even more
ludicrous than the idea of waiting out a filibuster (which in itself was
ludicrous); it just wasn't even considered as a rational tactic. (For more on
the circumstances of this, I would recommend reading Caro's excellent
biography of Lyndon Johnson: specifically the third volume "Master of the
Senate," where he discusses in depth the South's effectiveness at stopping
bills from coming to a vote circa 1957).

As for cloture, in its original incarnation (remember, this was only quite
recently: 1917) it required 16 senators to file a petition for cloture, at
which point 2/3 of those present and voting needed to vote in favor to lead to
a vote. However, presiding officers consistently interpreted this Rule as NOT
applying to "motions to proceed to consideration of a bill," which are
necessary by Senate Rule (from I don't know when, probably since Jefferson's
Manual) for making a piece of legislation the main motion. As a result, if you
didn't like a bill, you could still always just filibuster the motion to
proceed until the late 50s/early 60s when this loophole was closed. Since
there were 3-4 votes between the motion to proceed and the final vote on the
issue, a group of 10-20 senators (say, the Southern bloc) refusing to allow a
bill to come to the floor was more than enough to kil lit.

My point is this: the notion that the filibuster is a recently parliamentary
invention ignores the 80-some-year period from 187X to 1957 when not a single
bill related to racial injustice was passed into law at the federal level. To
my knowledge, "the South" was never even in control of 1/3 + 1 of the seats in
the Senate chamber, but they _still_ managed to effectively use Senate Rules
and precedents to restrict these bills from coming to a vote, and I can't
think of a single congressional session during this period that was extended
to try to outlast opponents of a bill. It just didn't happen.

Today, at least, you can a) get to cloture vote, since the motion to proceed
loophole has been closed and b) stand a reasonable chance of succeeding at the
cloture vote, since you only need to convince 3/5 of the Senate that something
is worth voting on. If there is more technical filibustering right now (by
which I suppose one means defeat of cloture motions), then at least there is a
public denouement, rather than a policy of simply giving up when a handful of
senators express opposition.

===

Also, two asides: 1\. Thurmond's 1957 filibuster only occurred because he
wasn't backed by the rest of the Southern Caucus. They chose to allow the bill
to come to a vote, presumably because they knew that Lyndon Johnson (majority
leader) needed a civil rights bill in order to be a plausible presidential
candidate, and they really really wanted a Southern president.

2\. The idea that the Senate Rules are readopted every session has never
really been accepted by the Senate. Nixon was the first presiding officer to
rule as such in 1953 (it may have been 1955) as part of civil rights strategy,
but it was overruled on that occasion and on most later occasions. In general,
I would say that the prevailing sentiment among Senate parliamentarians is
that the Senate is more of a continuous body, and I would expect a real
struggle if a majority ever attempted to pass a new set of Senate Rules under
the supposed "normal parliamentary rules" under which the Senate debates at
the beginning of each session.

~~~
vannevar
Far from being ludicrous, the original rules served a valid purpose: weighing
the conviction of those participating in the debate. By forcing a speaker to
hold the floor, the original rules allowed someone with deep conviction to
stand against a majority in a test of will. Even if the speaker ultimately
failed on the floor, he would have drawn public attention to his point of view
and ensured that it was considered.

------
cwan
Something of a broader response from Reason.com - "Stop the Car, Larry. I Want
to Get Out", excerpt: "While the folks at Cato would respond to special-
interest lobbying by reducing the size and scope of government so less of life
is politicized and there is less to lobby about, Lessig would respond by
amending the Constitution to restrict freedom of speech."

[http://reason.com/blog/2010/01/28/stop-the-car-larry-i-
want-...](http://reason.com/blog/2010/01/28/stop-the-car-larry-i-want-to-g)

~~~
bballant
Although I agree that amending the constitution takes things too far, I also
think that corporations already have too much influence on American lives and
I disagree with the recent SCOTUS decision because it validates that influence
to a degree.

I think the real solution (to corporate and government overreach) is to
consume less, buy local, invest local, use community banks, etc (and also, to
think about who we vote for, for a change). I think Lessig's ideals would be
better served if he focused on the small but growing movement around these
things. But, alas, as Lawyer, he's part of the system in many ways and, as
such, a bit of a top-down problem solver.

~~~
kiba
What with the whole "buy local" and "invest local" idea?

Have you ever the of the word "trade" and "merchants"? Do you "buy"? There's a
reason for "specialization" and "division of labor". It's why we're so
wealthy, because of our economy's vast ability to make stuff and transport
stuff. Utilize people's comparative advantage, we can produce more unit of
goods than we would otherwise if we do not specialize and trade.

Trade is the stuff of civilization. We should encourage more of it.

~~~
nazgulnarsil
can never be overstated. TRADE IS CIVILIZATION! voluntary exchange for mutual
benefit is the most powerful incentive against violent conflict. preventing
powers from externalizing the costs of conflict onto others is the most
important issue facing the world. it is holding back all other progress.

~~~
lollynoob
Not everyone thinks progress should be the ultimate goal, though.

~~~
natrius
Progress is by definition a good thing. The problem arises when it comes to
classifying things as progress.

------
nkohari
I think the most disturbing part of the SCOTUS ruling on corporations'
donating to campaigns is being missed.

Let's say I work a normal 9-5 job for a large company, like Ford. Let's
further say I'm a Democrat, but Ford decides to donate a large sum of money to
a Republican candidate. (Or, if you'd rather not consider party affiliation,
just assume I disgree with the candidate's platform.) Essentially, my work is
now directly going to fund policies that I disagree with. Does that mean I
should quit my job and go work for a corporation that supports Democrats?

This can happen in a way without corporations being able to directly
contribute, but at least the money is funneled through the compensation of the
executives and it's their own personal decision. Although I might think the
executive is overpaid, I have no right to tell anyone else how to spend their
own money.

Similarly, what if I'm an average American and I have some of my IRA/401(k)
invested in Ford, who then backs a political candidate I don't agree with. In
a less direct way, my money (used to purchase stock in the company) is being
used to fund political decisions I disagree with. Should I sell my stock?

The missing element that it seems no one is talking about is that the ruling
essentially politicizes both the employer-employee relationship and the
corporation-stockholder relationship.

~~~
anamax
> Let's further say I'm a Democrat, but Ford decides to donate a large sum of
> money to a Republican candidate.

So what? You're an employee, not a shareholder.

Shareholders are free to vote out management. They're also free to choose
which companies to own.

> Should I sell my stock?

Yes.

You're not obligted to buy/own their stock, they're not obligated to do as
you'd like (unless enough of your fellow owners agree).

------
jokull
As a non American: Is it not obvious that a politician accepting money to
mould policy is bad for the bottom line?

Also slightly related - why is it acceptable to persuade a court to release
suspects by simply paying them bail money in England and America?

Money walks all over morals.

~~~
jamesbritt
"Also slightly related - why is it acceptable to persuade a court to release
suspects by simply paying them bail money in England and America?"

You get it back if you make all of your court appearances. it's way to help
ensure that people charged wth a crime don't flee.

"Money walks all over morals."

How so?

Would it be better to keep people in jail simply because they've been
_accused_ of a crime?

If everyone was trusted to show up for court after being charged I think we'd
have a whole other set of issues.

~~~
jokull
Aaaah. I didn't know you'd get the money back for showing up in court. Why not
just fine people who don't show up then?

I'm not suggesting you put all suspects in jail.

~~~
lambda
If they don't show up, how do you fine them?

This isn't just about a person who misses a court date because they're lazy;
it's also about people who may flee to a different country, or start working
under an assumed name, or anything of the sort.

If they've already paid, they have some incentive to come back and be able to
reclaim their bail money.

If they do skip town, sending cops after them to track them down and arrest
them again is expensive. That's where the bounty hunter part comes in; if they
skip their court date, their own bail money is used as incentive to encourage
police officers, sheriffs, or private investigators to capture them.

In many cases, this isn't the romantic image of a western cowboy hunting down
dangerous criminals in caves, but just the equivalent of a debt-collection
agency, that calls them, mails them, files information with credit agencies
preventing them from receiving credit, and so on.

~~~
jokull
Fair enough about tracking down people who flee. Wouldn't that be some
evidence towards a conviction though?

There's one thought that applies to smaller population. If someone disappears
you can just stop worrying about them? Hiding from public and going to jail
has close to the same net benefit for society. Just thinking.

------
Kilimanjaro
"our government is corrupt"

Those in power want it to be corrupt to perpetuate themselves in power. Those
aspiring for power become corrupted once they get there.

Small government, local voting and decision making. Direct democracy. No
politician wants a reform for they will be left out.

We must burn down the government to save it.

~~~
nazgulnarsil
more, smaller governments (competition forces better customer service) is an
easy win for liberty. unfortunately smaller governments can't resist black
swans as effectively (napolean running through the italian city states like
butter).

------
ratsbane
I like Lessig and I like this article but does this really belong on Hacker
News? Articles about technology are fine; articles about technology and
business are okay; articles about technology and politics are okay, but this
story ...?

------
castis
To my knowledge, our government was never meant to be a Democracy. Republic
innit?

~~~
lambda
A republic is a kind of democracy; it is a form of representative democracy,
as opposed to a direct democracy. "Democracy. n. 1. government by the people;
a form of government in which the supreme power is vested in the people and
exercised directly by them or by their elected agents under a free electoral
system." <http://dictionary.reference.com/browse/democracy>

~~~
astrec
A republic is not necessarily a democracy, and the two terms are not strictly
interchangable. A republic may take many forms, including but not limited to
democratic, mercantile, classical, and religious republics.

Constitutionally the USA is a representative democracy defined as republican
in modern political argot. If you have the time a reading of Federalist No. 10
is quite enlightening (although a little tough).

------
kingkongreveng_
I want the restricted republic back. No interest in democracy.

"Democracy is the theory that the common people know what they want and
deserve to get it good and hard." --Mencken

~~~
nazgulnarsil
the founding fathers are often criticized for their preference for having only
landowners (which meant wealthy white males in general) vote. painting the
picture in such a simple way (it's undemocratic! sexist! racist!) is
dangerous. all democracies restrict suffrage to varying degrees (we do not
allow children, felons, or the mentally unstable to vote). the purpose of this
is to concentrate power int he hands of the responsible. it is my belief that
restricting suffrage to landowners was actually a rather clever hack. who has
an interest in being well informed on issues that affect a community? its
permanent citizens. the people who own land in an area have the most to lose
from policies that are detrimental to that area's long term prosperity.

one of the major issues of democratic systems is that it is always in the
interest of whomever is in the minority position to dilute suffrage.

~~~
kingkongreveng_
It's related to the arguments by Hans Herman Hoppe that monarchies throughout
history have on net demonstrated better long term decision making and planning
than democracies. A hereditary monarch has some level of incentive to optimize
tax revenue over generations. An eight year politician has only incentive to
ensure reelection.

------
lutorm
I agree with Lessig.

Maybe all these "small government", "liberty" people responding can explain
how it fits with their world view that the northern European countries, who
are not known for the smallness of their governments, consistently manage to
have the highest standard of living and the most well-functioning and
democratic governments in the world?

~~~
Empact
It's a loaded question. What's high-functioning about persistent high
unemployment, for example?:

[http://yglesias.thinkprogress.org/wp-
content/uploads/2009/05...](http://yglesias.thinkprogress.org/wp-
content/uploads/2009/05/us-eu-ur-figure-2.png)

And how do you intend to do objective comparison on standard of living? How do
you weight the unemployment figure above, for example, in such a measure?

~~~
bballant
Unemployment rates are counted differently in other countries. In the United
States, you have to be looking for a job to be counted as unemployed, so our
numbers tend to look lower than they actually are.

Also, an American friend of mine who lives in France tells me that, because of
French social programs, unemployment is not as scary or devastating there as
it is in the states.

On the other hand, I have a French friend who lives in the States and enjoys
the American sense of innovation and competitive spirit which he feels is
lacking in France.

You're right, standard of living is hard to be objective about. One common
measure is the Human Development Index. The US does pretty well in this
compared to the rest of the world, but not compared to our more socialist
sisters in Europe like France. I think one of the reasons for America's HDI
lagging behind European countries is our lack of universal health care, but
that's another topic.

