Mr. Lessig Goes to Washington
In late March, Stanford law professor Lawrence Lessig came to DC to draw back the curtain on the second act of his career. Lessig, with his placid mien and quiet voice, does not exude the aura of a star, but over the past decade he's become one of the most influential public intellectuals of the Internet age. Along with a small group of activists, legal academics and computer geeks, Lessig has built from scratch a global grassroots movement to reform copyright and intellectual property law. Videos of his lectures are passed along like samizdat by bloggers. "The first time I ever saw him speak," says Cory Doctorow, co-editor of BoingBoing, one of the country's most popular blogs, "I remember having the doors blown off my mind." Fans line up at events with worn copies of his books to ask for everything from signatures to career advice. It is, in the estimation of Aaron Swartz, a 21-year-old programming prodigy who's worked with Lessig since 2001, "a weird kind of celebrity."
Lessig stunned his legions of fans last summer when he abruptly announced he was walking away from the cause that had defined his career. For the next ten years, he said, he would be focusing on a new problem: fighting corruption in politics. So to announce his new venture he'd come to Washington, home to what he considers the most dangerously corrupt institution in the country: the United States Congress. With his new netroots-style reform advocacy organization, Change Congress, Lessig is determined to clean it up.
To many of the Beltway denizens crowded into the over-capacity room at the National Press Club on March 20, Lessig was only a faintly familiar name. Since announcing his new career path, though, he has worked hard to raise his political profile. He endorsed and has campaigned for his onetime University of Chicago colleague Barack Obama. In February, when Congressman Tom Lantos died, Lessig toyed with the idea of running for the seat in the special election. He posted a ten-minute video explaining his platform, centered around campaign finance reform, and set up a website to accept donations. He raised more than $60,000 in just two weeks before ultimately deciding not to run. At this year's Netroots Nation (formerly YearlyKos), the annual convention of the Internet's progressive activists, he will be delivering a keynote address.
Lessig has become enough of a player to merit the attention of the right-wing attack machine. After he showed a clip during a talk of an Argentine artist's video featuring Jesus dancing to Gloria Gaynor's "I Will Survive" before getting hit by a bus, RedState.com, Sean Hannity and Rush Limbaugh all tore into him as "anti-Christian." Fox News even sent a camera to ambush him after he testified at a recent Senate hearing.
Political reporter Thomas Edsall, in his 1984 book The New Politics of Inequality, draws a distinction between two types of reformers in the center-left coalition. The vast majority of interest groups in Washington, from the Sierra Club to the AFL-CIO to Planned Parenthood, are pursuing what Edsall calls "substantive reform"--attempting to push legislation and enact policies that will provide public goods, protect citizens from harm and redistribute benefits, rights and privileges away from the powerful and toward middle-class citizens and disenfranchised minorities. Then there's a small cluster of about a dozen groups--Public Campaign, the Center for Responsive Politics and the Sunlight Foundation--that focus on procedural reform. Rather than trying to win the game, they're trying to change the rules: pushing for broader enfranchisement, more transparency and, crucially, reforms that will reduce the influence of big money on politics.
The procedural reformers, many of whom were in the audience at Lessig's Press Club talk, have some significant victories they can point to over the past several decades, most notably the public financing system set up for presidential elections after Watergate and the Bipartisan Campaign Reform Act of 2002 (aka McCain-Feingold), which banned soft money. Recently, they've had success at the state level, pushing through clean elections laws in Maine and Arizona. But each reform to limit big money in politics is followed by innovations that only increase its role, leading many to conclude that attempting to change the rules is a pointless quest; energy would be better spent on trying to win within the regime. "If you think it's hard trying to get oil companies to pay attention to global warming," Dan Becker, a longtime environmental activist told me, "just try working on getting money out of politics."
What gives Lessig a unique credibility as he embarks on his new career as process reformer is his former life pursuing substantive reform. Before there was Lawrence Lessig, corruption crusader, there was Lawrence Lessig, copyright crusader. In the 1990s, when he started writing about the dangers of a sclerotic, overly restrictive intellectual property regime, few besides industry groups like the RIAA and MPAA and a tiny circle of academics paid much attention. So it was easy, in 1998, for Congress to pass overwhelmingly the Sonny Bono Copyright Term Extension Act, which President Clinton signed into law, extending copyright protections for twenty additional years, bringing the total guaranteed copyright term to seventy years after a creator's death (Since Disney had lobbied strongly for the bill, critics dubbed it the Mickey Mouse Protection Act.)
In the absence of high-profile voices countering the industry groups that dominated the issue, Lessig became an evangelist for the cause of what he calls "free culture." He and his allies argue that cultural vibrance, scientific progress and business innovation all rely on the diffusion of knowledge, a diffusion threatened by an intellectual property regime that attempts to keep that knowledge trapped in a proprietary vault. What they see happening is a modern-day rerun of the eighteenth-century enclosure movement, in which the British commons were brought under private control. But here, instead of using fences to capture land, the private interests are manipulating the law to keep cultural production and the knowledge needed for technological innovation out of the public domain.
Take Disney, for example, which built its entire entertainment empire--from Snow White and the Seven Dwarfs to Beauty and the Beast--on the works of others, works in the public domain. But today, if anyone tried to make their own movie based on Mickey Mouse, they'd find themselves on the business end of a lawsuit.
In 1998 Lessig began flying around the country, giving as many as a hundred talks a year at college campuses, and in so doing helped spark a movement. "He developed and refined this really effective speaking style over the years," says Lessig's friend Swartz. Lessig speaks in a halting monotone, while displaying a steady stream of slides with single words or phrases in white set against a black background. The cumulative effect is oddly compelling. Nelson Pavlosky, a law student at George Mason University, founded the first chapter of Students for Free Culture as an undergraduate at Swarthmore, after watching a video of a Lessig lecture posted on the Internet. Today, Students for Free Culture has twenty-six chapters.
Faced with implacable resistance to copyright reform from big industry groups, Lessig tried a variety of tactical maneuvers. In 1999 he challenged the Bono Act, taking the case all the way to the Supreme Court. Though his friends and colleagues advised him it was unwinnable, Lessig thought the underlying principle so clear, and the Constitution's language about "limited" copyright terms so plain, that he would prevail. But he managed to win only two dissenting votes, from Justices Stevens and Breyer. "He had a terrible reaction to losing the...case," recalls Richard Posner, a seventh circuit judge Lessig had once clerked for. "I told him truthfully...nobody could have won that case. That case was a clear loser. He couldn't accept that. He was terribly upset about that loss."
Lessig didn't wallow for long. He threw himself into starting and promoting Creative Commons, an alternative licensing system that allows creators to specify how other people can use their work, voluntarily giving up some of the rights that copyright automatically reserves. Artists, writers, scientists and others can select from different Creative Commons licenses, which allow the works to be shared, excerpted, reused or re-mixed under certain conditions, for instance, proper citation and credit. Creative Commons' tagline "some rights reserved" is a rebuke of the "all right reserved" tag line that appears under copyrighted works. It's been remarkably successful: more than 90 million works are now licensed under CC, a figure that's more than doubled since 2006.
In the words of fellow cyber-law expert Yochai Benkler, Creative Commons was a way to "jury-rig" a copyright system that embodied free culture values. For all its success, only a tiny percentage of all works generated each year bore a Creative Commons license. Since the Supreme Court has declined to overrule Congress, overhauling the nation's intellectual property regime could happen only by moving legislation through Washington. And Washington had proven too broken.
Lessig's years rolling the copyright boulder up the hill served as the narrative inspiration for his talk at the Press Club. For Lessig, copyright is just one example of the ways money corrupts the Congressional process by preventing Congress from getting what he calls the "easy cases" right. Nearly every expert who's studied copyright term has concluded that it shouldn't be extended retroactively: Milton Friedman once referred to this position as a "no-brainer." But that hasn't stopped big corporations like Disney, which stands to lose a considerable amount of money when Mickey Mouse becomes public property, from pushing through legislation that extends copyright protections for old works.
It's the same dynamic with a host of issues, from the farm bill to the role of contractors in Iraq to an issue Lessig calls "the most profound" we face: global warming. There, the scientific consensus is absolute, the stakes dire and yet action has been routinely thwarted by a coterie of corporations that have a monumental monetary interest in the status quo. "Really, who cares about Mickey Mouse," Lessig told me over dinner the night before his talk. "But if we can't get global warming right? An easy question as fundamental as global warming? Then we're really fucked."
In comparison to saving the planet from immolation, ending donations from lobbyists might seem insignificant, Lessig told the audience at the Press Club. But the problem Congress faces is akin to that faced by an alcoholic. "An alcoholic could be losing his family, his job, his liver," said Lessig. "These are extraordinarily important problems in any scheme of reckoning; these are the most important problems he could be facing. But he will never face and solve those problems until he solves this alcoholism first. This problem that I've described is not the most important problem, it's just the first problem.... We need to solve this problem now."
Sitting in a Washington coffee shop the morning after the speech, distractedly nibbling on carrots and grapes, Lessig seems an unlikely evangelist. "The reason I wanted to be an academic was not because I had some deep romantic idea about teaching or rearing young minds, though that's a great part of the job," he says. It was "just the freedom, just being allowed to say what you believe, write without any of these kinds of restraints in your life."
At 46, Lessig has a boyish face, vaguely reminiscent of Harry Potter. He engages each question with a pursed, furrowed look of absolute concentration before unfurling an alarmingly coherent answer, often beginning sentences with the word "so," which makes it feel like you're encountering him mid-thought and need to catch up. "There's something kind of monkish about him, or austere," Posner told me. "When he taught at Chicago he had an apartment that was extraordinarily bare, like a monk's cell." Lessig is kind of an "ice-capped volcano," says Posner--his chilly exterior covers a passionate zeal. "He works harder than anybody I have ever met," says Lessig's good friend Alex Whiting. "It's unbelievable."
Lessig likely inherits his work ethic from his father, who owned a steel fabricating company in Williamsport, Pennsylvania, a small town in the middle of the state, where, Lessig says, "the sun shone around twenty-five days a year." As a teenager Lessig took on his father's Goldwaterite politics as his own, and he spent his high school years as an Alex P. Keaton-style "right-wing nut." In 1980 he was the youngest member of the Pennsylvania delegation at the Republican convention, when it nominated Ronald Reagan.
At Cambridge, where he studied philosophy after college, Lessig began a political conversion. "In some sense," he says, "I think that education made it impossible for me to be the kind of narrow, simple conservative that I was." He went on to clerk on the Supreme Court for Antonin Scalia (he was the lone liberal clerk), and has become an outspoken progressive. He was an early supporter of Howard Dean's presidential campaign and invited him to guest blog on his site.
But Lessig's political loyalties aside, his critique is not particularly partisan. His copyright activism originated in the late 1990s, in the wake of the Clinton Administration's industry-friendly Telecommunications Act, and his experience working on copyright and tech policy gives him a some perspective on Washington's dysfunctions. For years the most zealous defenders of the interests of the recording studios and film conglomerates have been Democrats. (Perhaps his greatest nemesis--and eventually a friend--was Jack Valenti, the late, great Democrat who ran the MPAA and once considered kids who downloaded songs off Napster part of a "terrorist war.")
In the past eight years the collusion between government and business has gotten worse, creating what economist Dean Baker terms the "conservative nanny state." Lessig sees unmaking this state of affairs as the challenge of the era. "There's a speech that Reagan gives in 1965," Lessig says, "where he talks about how democracy always fails because once the people recognize they can vote themselves largess, they just vote themselves largess and the fiscal policy is destroyed. Well, Reagan had it half-right. It's not as if it's the poor out there who have figured out how to suck the money out of the rich. It's exactly the other way around."
In fighting this corporate socialism, Lessig thinks there are allies to be found among the "intellectually honest" right. He points out that the need to raise money from industry provides an incentive to grow government and maintain regulation as a kind of leverage to extract donations from industry. He's made battling earmarks, a conservative cause célèbre, a Change Congress core mission; the first member of Congress to endorse Change Congress was Jim Cooper, a conservative blue-dog Democrat who is eyed suspiciously by the party's activist base. Lessig's touchstone in his conservative outreach is his father, who struggled every year to meet his company's pension obligations, only to learn years later that big companies like Bethlehem Steel had an exemption in the law so they didn't have to meet the same standards. "Now, from my modern political perspective, that's exactly the thing I think is most outrageous about how the government functions," says Lessig. "And from my dad's perspective, that's the most absurd thing about how government functions."
In today's terms, you might call it the Medicare Part D problem: even when Congress starts out with a laudable policy goal, like providing prescription drugs for seniors, by the time the legislation gets through both houses it amounts to little more than a grab bag of giveaways to politically connected business interests. Case in point: the recent Senate-passed Foreclosure Prevention Act, which contains $25 billion in tax breaks for home-builders and other businesses while doing very little to justify its name. The reason for this is straightforward: the amount of money spent on lobbying in the last Congressional session was $2.8 billion, nearly two times more than was spent in 2000. Overall, industry has contributed $14 million to Congressional candidates in this session.
This money, Lessig says, insidiously distorts Congressional outcomes and priorities because Congress members don't experience it as corruption. "Let's say you go to Congress," says Lessig, "and you believe there are two problems to deal with: piracy of copyrighted materials and welfare mothers who are really getting screwed by the system. You open up shop, and a million [lobbyists] come in and say we've got a thousand things to tell you about piracy, and nobody comes into your office and says we're going to help you with the welfare moms. So you shift your focus, but you never feel it. You think: maybe I could've spent more time on welfare moms, but I'm having a real effect on stopping piracy! That's the dynamic that is so critical here."
Of course, good-government reformers have been decrying the influence of money since at least the late nineteenth century. For all of Lessig's status as a visionary (he literally wrote the book on cyberspace law), what's most striking is that, as he admits, Change Congress doesn't embody any "new ideas." He envisions it as a movement tool kit that connects citizens to the work of the reform groups that already exist, a kind of "Google Maps mashup," as he puts it.
"There have been all sorts of DC-based organizations that have tried to crack this nut, and I think they've hit the limit of what the 'Let's send out an e-mail to our 100,000 members and tell them to write their Congressmen' model can do," he says. "We have an opportunity--and it won't last long--to take advantage of the uncertainty that Congress has about how the Net actually works. They don't get it right now. And while they've learned how to ignore 1,000 e-mails, they haven't quite figured out what to do about fifty blogs talking about various legislation or meet-up events. So there's an opportunity to leverage the technology and the irrational insecurity of members of Congress, who look at any objectively insignificant resistance as something to be dealt with immediately."
Ellen Miller, a veteran of campaign finance reform battles, who co-founded the Center for Responsive Politics and Public Campaign and now runs the Sunlight Foundation, says "there was some skepticism" among campaign finance activists toward Lessig's initiative. But, she says, "organizing around issues happens differently than any of the old-line reform groups ever thought it did," pointing to "the online-offline combination, using social media to build a community of people that might have already existed out there [that] Common Cause and Public Campaign couldn't figure out how to reach. He can figure out how to reach them, how to create communities that would have been impossible to find before."
The first feature available on Change Congress's website, modeled loosely on the Creative Commons licensing system, allows citizens, Congress members and Congressional candidates to commit publicly to four pledges--to refuse PAC and lobbyist money, support public financing, vote to end earmarks and increase Congressional transparency. Candidates who take the pledge can display a badge on their website.
This information will be displayed in a map, which Lessig believes will show in stark terms just how "broad and deep" the consensus for reform is. Take, for instance, the ultimate prize for Lessig and reform allies: public financing of Congressional campaigns. A 2006 poll showed overwhelming support among voters (75 percent) for such a system. The Fair Elections Now Act, introduced by Senators Dick Durbin and Arlen Specter, has attracted eight co-sponsors (including Barack Obama), and Hillary Clinton is on record as supporting public financing in principle if not the Durbin bill specifically. While McCain supported full public financing as recently as 2002, he retracted that position last year. This is not to say we're anywhere close to having public financing enacted--the interests opposed to it are substantial--but it is by no means a fringe idea.
In the future, Lessig envisions a Change Congress fundraising arm, modeled in part on EMILY's List, that will allow people to pledge money to Congressional candidates who match their reform preferences and endorse insurgents who challenge incumbents in their party's primary on a reform platform.
In just a month since announcing Change Congress, the organization has raised $500,000 and hired three staff members. But how effective it will be is unclear. Even if it were to succeed in further empowering and connecting the constituency already disposed to support this kind of reform, the challenge is to dramatically increase that constituency and, most daunting, transform process reform into the kind of issue that, like abortion or gun rights, people will base their vote on. "The hero worship may go a long way," said one longtime campaign finance activist. "But those who aren't part of his inner circle are going to be baffled, or they are going to be put off by apparent arrogance." However, she says, "I think technologists achieve a lot because they are blind to that distaste for arrogance, or they just don't care, and they move forward, and that's how they get so much done. They're not trying to be liked; they're trying to create something new."
Though playing David to various Goliaths (armed with a laptop as slingshot) is the defining narrative of Lessig's career, as we finish our conversation in the coffee shop he tells me he feels like he's "never actually...won anything. I constantly feel like, when will I actually deliver?"
Which probably explains why Lessig was tempted to run for Congress. What would be a more quixotic quest than running for Congress as an unknown against a popular local pol? What better venue to prove that process reform can be a real vote-moving issue? After a few supporters organized a Draft Lessig website, he began to consider announcing his candidacy. He hired Joe Trippi and spent $30,000 on an exploratory poll, the results of which were "completely terrible," recalls Swartz. Not only did he have no name recognition but his would-be opponent, State Senator (now Congresswoman) Jackie Speier was "an absolute saint to the district. No matter what you said about her in the polls"--that she, for instance, took contributions from the same industries she regulated in the State Senate--"people just didn't care. So it would have been physically impossible for us to persuade enough voters to win, even in a low-turnout special election."
But Lessig gave up the notion of running reluctantly. "We spent a lot of time trying to think if there was some way we could make it work," says Swartz. "There was just no way to break in. It was depressing." Trippi says Lessig's disappointment was evident. "I think he would have relished the opportunity to be out there and try to convince the district--of seeing if he could beat those odds."
"When I was thinking of running," Lessig says, "the biggest pushback I got was from all these senior politico types who are like, Look, you can never sell process reform; nobody will ever buy it; if that's your message, you cannot win. And my response is, Well, we've got to figure out how to sell it, for Chrissake! It's not like we have a choice."