Lessig Launches beta of Change Congress Project in Sunshine Week Lecture
Thursday, March 20, 2008 1:30 PM Eastern
The National Press Club - Washington, DC
Introduction by Ellen Miller, Executive Director and Co-founder of the Sunlight Foundation.
Abridged Introduction: Lawrence Lessig is a professor of law at Stanford Law School, founder of the school's Center for Internet and Society, and founded the Creative Commons Foundation. Before joining Stanford he was the Berkman Professor of Law at Harvard Law School and a professor at the University of Chicago. He has clerked for Judge Richard Posner and Justice Scalia. Among many other awards and activities, Lessig has also authored 4 books.
So I'm going to talk about Truth, Trust, and Title VII.
First, a little about Truth. So we have a government, which engages in lots of policy making, faces questions in lots of very hard cases, gets some of those cases right, gets some of those cases wrong. But I want to focus for a moment on what we should think of as easy policy cases, easy policy cases which our government increasingly gets wrong.
For example, one that I spent ten years of my life dealing with, copyright term. There's a consensus among policymakers that if you're going to change the copyright term, it could only make sense to change the copyright term prospectively. Copyright is an incentive to produce new works; no matter what we do, George Gershwin will not produce anything more. Indeed in England, the Gowers Commission, headed by the former editor of the Financial Times, studied all of the economic literature about copyright term, and concluded that never could it make sense to extend the term of an existing copyright. Milton Friedman in the United States, when asked about the question, said anybody who thought it could was, quote, "brain-dead".
But the puzzle is that every time governments confront this question of copyright term, they always extend the term prospectively and retrospectively both. Indeed in the cycle that we're in the middle of right now, Germany extended the term first, leading the EU to extend the term, leading the United States to extend the term, leading EU to it because we went beyond the EU, leading Spain to extend it again, leading to this endless cycle of extending the term of existing copyrights.
Here's an easy policy question, which governments consistently get wrong.
Or think of a second one, nutrition. There's a consensus among scientists that we eat too much of this junk, not enough of this stuff. Indeed in 2003 the World Health Organization tried to set standards to guide the amount of sugar that we would consume: they said no more than 10% of our caloric intake from sugar. Well the sugar industry, pictured in this very sweet way here, went ballistic- there they are, going ballistic- at the suggestion that we eat only 10% of our calories from sugar. They launched an attack on the WHO's efforts, indeed leading the United States Senate, here's a letter from Senator Craig, to threaten to withhold funding from the WHO if they didn't adjust their recommendation. Indeed adjust their recommendation to 25% consumption of sugar in our daily diet. And indeed in 2003, the food nutrition board, after the sugar industry got a little bit more support on that board, increased the recommendation to 25% of our caloric intake coming from sugar. This is a, quote, "balanced diet" according to our government? Here's a daily intake that would satisfy this? You could start with some fruit loops or M&Ms for breakfast, a glass of milk, cheeseburger for lunch, pizza, indeed three slices of pepperoni pizza and cookies, for dinner. That's a balanced diet according to our government.
Here again, an easy policy case, from the perspective of those who know about this issue, which we get wrong.
Or maybe most profoundly, the issue that all of us have focused on in the last couple years, this issue of global warming. Obviously there's a consensus out there that we're doing it, we're responsible for it. As Al Gore summarized the debate, the debate's over, there are five points in this consensus. Number one, global warming is real; number two, we human beings are mainly responsible; number three, consequences of this are very bad; number four, we need to fix it quickly; and number five, it's not too late to fix it.
Now this consensus has been tested in studies in both scientific journals and in popular media. So, a review of a thousand peer-reviewed scientific journal articles published between 1993 and 2003 found that 0%- exactly zero- questioned that basic consensus. And then a similar study of six hundred popular media articles between 1988 and 2002 found that 53% questioned the basic science. This is of course the product of an extraordinary amount of junk science that had been funded to spread in this debate, leading to this extraordinary delay in the United States of at least ten years in confronting perhaps the most important public policy problem we face as a world.
Again, an easy public policy question which government got wrong.
Now in all three of these cases, these easy cases, these easy cases that we get wrong, the fundamental question is why is it. Not that in the hard cases government goes off-track, but in cases where there is no real debate, government goes off-track.
That's Truth. Think a little bit about Trust.
We have in our society many institutions that depend upon trust. Trust by the people in what they do, in order to be effective. Think about courts, or doctors, or academics. This trust depends on certain conditions that these institutions live with, then. Conditions where we believe that their decisions are a function of reason, not a function of their interests, either personal or institutional interest.
So think about the Supreme Court. Which has done an extraordinarily good job, both the Federal Supreme Court, and Federal courts generally, in building in people a sense that whatever reason they've made for their decision, it has little to do with their personal gain. Or even the gain that their institution might get from that decision. Of course we question the politics in their decision, and rightly so, but the institution has developed the conditions of trust that let us believe that its decisions are not guided by this personal consideration.
Think though, about doctors, who have actually not been so good in building this same sort of trust for the work that they do. Indeed they reveal a kind of blindness, fundamental blindness, to how their work, and the institution they've built, connects to how people view them. So for example, this drug, Alteplase. It's a drug that was developed to deal with what we used to call strokes, which the industry now wants to call 'brain attacks'. This drug was studied in a 1998 American Health Association study. That study had significant support for the release of this drug, but some pretty significant dissent about whether its safety was, on balance, supported. When a 2000 report was issued by the AHA about this, the dissent magically disappeared. Indeed the author of the dissent was stricken from the list of those who had actually worked on the report. And then it was discovered that the company that was funding the drug, Genentech, had given more than eleven million dollars to the American Health Association, raising fundamental questions about exactly what led to the conclusions of the report, leading this L.A. Times reporter to comment, "This recommendation may have been made in a true spirit of unbiased scientific inquiry, but the appearance of dispassionate analysis was eroded by large donations from a drug company."
Or think for example about this issue of vaccines. Of course one has to be extremely careful not to mark oneself off as a nutcase in this debate, so here I'm going to be very careful. First, vaccines are good and right and needed, no doubt. And number two, mercury does not cause autism. I want to make this very clear- vaccines are good, mercury does not cause autism. Alright, that's not what I'm asserting here. What I'm asking you to do though, is to put yourself in the place of parents, parents of children with autism. Who for years have suffered this anxiety that maybe something they did, some decision they made about how in fact they went about raising their child and taking precautions against disease, this extraordinary anxiety, might have led to this link between the disease that their children face and the steps they took. And recognize in the parents here, the pervasive lack of trust they have in the information given to them about this question.
And why is there this pervasive lack of trust? Well as the House Oversight Committee commented in 2000, "The FDA standards defining conflicts of interest are ridiculously broad." The CDC has virtually no standards, because all ACIP (this is the immunization board) members automatically receive annual waivers. The very members of the board receiving hundreds of thousands of dollars from the industry which they are purportedly regulating.
Now when you raise these questions with doctors, they say in great outrage, 'Of course, we would never compromise our scientific judgment for money.' Even though, scientific studies of the effect of reviewers who have been paid, compared to reviewers who have not been paid, consistently demonstrate that there is in fact a bias that comes in the interpretation of data that comes from reviewers who have been paid. But even if you accept their claim, that they would never compromise their scientific judgment, this claim is simply oblivious to the way in which the institution needs to build trust. It's a hollow claim in the face of the background knowledge that money so completely pervades the process of producing knowledge here.
Or think finally about academics. And the increasing rise of what's called the 'coin operated expert'. My colleagues, increasingly, who come to Washington paid by industry to opine about matters of public policy. Saying the way the world ought to be based on their academic expertise. Increasingly, there's a presumption that if you're here, talking about public policy, it is because you've been paid- why else would you have come? And indeed, so deep is this presumption, that whenever one encounters a policymaker like a congressman or a senator about the issue, confronted in response with the assumption that you have taken money.
So in a pretty heated email exchange I had with Senator Sununu, once he shot back to me, "And don't shill for the big guys protecting marketshare through neutrality regulation either." And it hit me, like a ton of bricks. He thought, he assumed, that I was being paid, by Google, or et. al, for the stuff that I wanted to talk about here. He assumed it, because again, why else would one be here. And of course, his assumption is reasonable against a background of academics who choose not to stand and say what right public policy is based on their experience or knowledge- instead, to say, because they've been paid.
This is a pervasive lack of trust, I suggest, in key institutions, because we ignore how trust is built. And my claim here is not some sort of simple claim against money, or the importance of money. Money has an extremely important part in our society, to drive the market in ways the market needs to be driven. We just need to recognize that money in certain places is destructive of trust. And to recognize that even if we don't believe that the people making decisions are themselves directly driven by the money. Because trust comes not from what they do, but instead from how what they do is perceived.
Finally, about Title VII.
Not the Title VII you were thinking about. I'm going to talk about Title VII of the Communications Act. Then you're going to tell me there isn't Title VII of the Communications Act, there's only Titles I, II, III, IV, V, VI, that's true. But the Title VII that I want to talk about is something that was intended to come out of Title II, which covers common carriers, or telecom in this context, and Title VI, which covers cable.
Al Gore, in 1994, proposed this idea of creating Title VII out of Title II and Title VI, and to have it regulate all internet services. So all of these internet services would be under one organizational structure, and that structure would be de-regulated. Minimal interconnect requirements, not even the Net Neutrality issue people are talking about today, just minimal regulation to encourage investment in this space.
When Gore's team took this idea to the Hill, he got back the answer as one of the members of the team told me- "Hell no", the hill said. Why? "How are we going to raise money from the telecoms if we de-regulate them?" was the question.
That's Title VII.
Alright. Take these things together: Trust, Truth, Title VII. Let me apply the thought to Congress.
First, this idea of Trust and Truth. The framers of our constitution were fundamentally focused on what they would have called 'independence'. We think independence means independence from Britain- I'm not talking about independence from Britain, and neither were they. They were thinking of independence in the sense of building a government that didn't have dependence, meaning the members of that government were not improperly dependent upon outside influences, particularly the influence of money. As Jefferson put it, "Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambitions." Or as Foner[?] describes the 18th century, "It was an axiom of 18th century politics that dependents lacked a will of their own, and thus did not deserve a role in public affairs."
Did not deserve a role in public affairs.
Now the point here is improper dependence, because of course we want our representatives to be dependent upon the will of the people expressed in the polls. But it's dependence upon the influence of money that led to the kind of corruption that was their obsessive focus in the founding generation. Their common aim was to build institutions, constitutions, against that dependism.
Now their idealism failed in the original period of the republic. Indeed here's a picture of Daniel Webster, a particularly evil picture because that's my point. Daniel Webster, during the time in which he was serving in Congress, was a paid representative of the Bank of the United States, and wrote the Bank of the United States, "If it be wished that my relation to the bank be continued, it might be well to send me the usual retainers."
Directly in the interest, in the dependence upon that bank, while pushing public policy as a member of Congress. Indeed it wasn't until 1853 that bribery was even a crime, as it applies to Congress.
So my point is that they had less than ideal results from their ideal of creating independence, and in the sense that I'm criticizing them, 200 years later we have radically improved on what they did. This crude form of corruption, 'feathering the nest' of the representative, is not the problem we face today. This is the exception, Duke Cunningham, not the rule. Personal corruption in this Congress is in my view at its lowest in history in the United States, lower than it's ever been.
But the point to recognize is that just because there's no personal corruption, does not mean that this institution is independent, or that its members are independent. It doesn't mean that there is no institutional corruption, in the sense that the institution is driven by interests that ought not to be driving it. They can be personally secure from the influences that Daniel Webster couldn't resist, but they can be professionally dependent, subject to a kind of corruption, which we need to increasingly see.
The 'economy of influence', which defines the way ideas and action moves through this Congress, is exactly the kind of corruption, lack of independence, that the framers feared. This economy of influence, which controls access, and which affects the results, and affects the respect, that the institution has.
So, has it affected the respect of Congress? Well, Trust is an easy question to answer. Respect for this Congress is the lowest that it's ever been. 19% approval rating for this institution. And with respect to Truth, well think back to my example of the easy cases. Right, who cares about Mickey Mouse, right? I'll just drop that issue. Whether he's in the public domain or not is not the most important issue out there. But when our children are facing the extraordinary problem of obesity, the 25% recommendation for sugar intake is a serious problem. And when we take the most serious public policy problem that we face as a nation, and delay considering it for at least 10 years? This is a profoundly serious problem, a mistake of profound importance.
All of these errors here are driven by this improper influence of money. All of them are a function of an improper dependence. This Constitution, that the framers imagined they would build against that dependence, has failed. These people are personally honest, I will believe and assert, they're institutionally corrupt.
And this is the most important challenge, I believe, that we face. To build this Constitution of independence, that they failed to build.
Of course there's an extraordinary movement to do that already, a movement of reform, a reform that expresses itself in the single meme of this election, the meme of change.
But the reform I want to talk about is the change in the power of money, in the way that public policy gets made. A change in how Congress works: that's the meme I want to animate this Change Congress movement. And I think we need to recognize an extraordinary opportunity for this change right now, in this election. There are 68 open seats in this election, the largest number of open seats since at least 1996. And these open seats will bring members of Congress into Congress who will have a taste for reform, as they begin to taste their life under the existing system, a life which is increasingly dominated by cubbyhole telemarketing to fundraising to guarantee they can return to Congress.
So the Truth and Trust, which we need to focus on in thinking about this reform, truth in getting the right answer, and getting the right answer for the right reason, has led many reformers to talk about proposals that might restore both the trust of this institution, and the ability of this institution to get it right.
So for example there's been a call by, Democrats primarily, John Edwards launched the call, that members not accept money from lobbyists or PACs, an effort driven to drive an increase in trust, in the ability for people to understand what members of Congress are doing not as a function of who gave them money, but what they think is right. And there's been a push for transparency, muted by both parties, pushed mainly by organizations such as the Sunlight Foundation, which aims for the same objective, increasing trust.
And a very strong push right now, the Republicans taking the lead on this against earmarks, for the same reasons, so we can begin to believe the reason that money is being allocated doesn't have to do with the money going into a campaign, decisions being made for the right reasons. And not just because we're worried about, quote, "waste", but because we're worried about government functioning in the basic way it's supposed to function.
So for example, this guy, Douglas Hashek[?], was an entrepreneur developing a fire-retardant T-shirt for the Army, so that soldiers in Iraq would have a T-shirt that would resist burning when they were in the middle of firestorms. He then discovered as he went to bid on this government contract, that the bid had been closed down, because of an earmark from David Wu, a Democrat from Oregon, giving the contract to this company. But it turned out that this company actually hadn't produced a fire-retardant T-shirt; the T-shirt melted at a certain temperature on the skin of the Iraqi soldier's backs. And then it turned out that that company had given $9,000 to Congressman Wu in campaign contributions, through the collection of money from inside the company.
This is not just a question of whether we waste money. It's a question of whether government can function the way it's supposed to function. Both Truth and Trust, threatened by this process of earmarking.
And finally in the context of public financing. It's been pushed by members of both parties, maybe more by the Democrats, to remove this dependency directly. Consider the proposal of Paul Begala and James Carville, that says once a member is elected to Congress, he's not permitted from that moment on to raise one dollar for his re-election. Instead the amount of money he gets is a function of how much his opponent raises. So his opponent raises a million bucks, he gets $800,000, written to him in a check from the U.S. Treasury. A design to assure that from the very moment he enters Congress his work is not driven by an understanding of whether he's going to get rewarded in the campaign fundraising process. The same idea behind public campaigns work, adjusted[?] dollars work, to get public financing to allow members to focus on what they ought to be focusing on, instead of focusing on what will get them money in their re-election.
Now of course the Right has been naturally skeptical about these proposals. The Right worries this is more Big Government, more spending by government, we should be focusing on reducing the size of government. But what the Right needs to recognize, is my message behind my story about Title VII.
Why is government so big? Members of the Right? Because Congressmen must get elected. The insidious relationship between the desire to regulate, so that money can be raised for an election, drives the expansion in the size of government. And if we could remove that dependency we could allow the government to shrink in those places where it maybe ought to shrink. A huge chunk of the FCC could disappear, if it weren't for this weird and perverse interaction.
So if Public Campaign is right that these elections would cost maybe $2 billion dollars to run, we need to recognize, those from the Right, that $2 billion dollars is a tiny number (see, really tiny on the screen, now), compared to the drag that this unnecessary regulation imposes on the economy.
So this has led some of us, in particular me and Joe Trippi, who I'm honored is here today, to think about launching what we call this Change Congress movement, and today we're launching the beta of this Change Congress movement.
The Change Congress movement is a bipartisan movement, maybe a multi-partisan movement. It's not just about Dems and Republicans. Designed to leverage and amplify the reform work that has been done by others. It's a kind of Google mashup applied to politics, where we take the work that's going on out there already and we find ways to make it more significant. Not displacing the extraordinarily important work done by these reform organizations, but finding ways to make it more successful.
So there's a simple sense of the mashup, you go to our page right now you can see in the front page this map, which in this sludge color tries to measure the amount of money that comes to a campaign from PAC and lobbyist contributions, so you can click on your campaign or your candidate and discover how much of his money comes from PAC or lobbyist contributions.
But it's a mashup in a more fundamental sense than that, and it will be rolled out in three stages.
Layer 1 that we are rolling out today, gives people a simple way to pledge support for reform. It's modeled after the work that we've done at Creative Commons.
Creative Commons' objective was to find a simple way for copyright holders, authors, to mark their creative work with the freedoms they intended it to carry. So you go to our page and you pick, do you want to allow commercial use, do you want to allow modifications, do you require others license the work that is the modification of yours just as freely? You get a license, the license appears on the webpage attached to the content, if you click on the license you have a simple description of the freedoms associated with the content, backed up with an enforceable copyright license.
Change Congress wants to do the same thing for reform. So a simple way, for both candidates and citizens, to signal their support for reform. And the reform, that we'll be talking about, comes in four separate possible pledges.
Number one, that you won't take money from lobbyists or PACs.
Number two, that you support a permanent ban for earmarks.
Number three, that you support the public financing of public elections, and
Number four, that you support changes in rules and law to require total transparency in the way Congress functions.
The candidate has the option to make this pledge by going to the webpage and picking which of these things they will support, they then get this badge, or one of the badges want, they get code they can put onto their page, when you see this on a webpage and click to it you get a description precisely of the support that that candidate gives for the reform they want to make.
So too with the citizen. The citizen can get a pledge in the same way they can put on their website that indicates what kind of candidates they will support, signaling the level of support that exists out in a particular district for certain kinds of reform.
That's Layer 1. Really in some sense the smallest step we can make to make more transparent the kind of support there is for this reform.
Step two is to track support for reform. Because we recognize already out there, there have been efforts to get pledges to components of the Change Congress platform. And indeed there are hundreds of members who have pledge to support various parts of it, including Public Campaign's effort to get people to support in 2006 a pledge for public financing.
So in stage two of the Change Congress site we're going to develop some wikified tools, inspired by the work of Sunlight in exactly this way, to build an army of collaborators whose job it will be to suss out which reforms certain candidates are for. And then once we verify this reform, and make sure this is the reform this candidate has supported, or this member has supported, we will ask the member to join the Change Congress movement with respect to that reform.
But then we will map, both actual support and pledged support of existing members of Congress. Actual supporters will either be marked red, dark red, or dark blue, for Republicans or Dems who have actually pledged, but tracked support will be light red and light blue, for members who have actually signaled that they support platforms in this. And then those who have neither taken the pledge nor signaled their support will still remain this ugly color, sludge, so that you begin to get a map that signals exactly how broad actual measure of support out there is for this fundamental Congressional reform. Revealing, what we think, is an extraordinarily optimistic picture, just how deep and strong support is for substantial change in the way Congress functions.
Finally Layer 3, we'll begin to fund this reform, kind of a carrot in the mix, following the ideals of the Emily's List. We will set up a reform page where people can pledge money to candidates who have supported reform, pledge five dollars a month to five candidates who have supported reform, to fund and support these campaigns for reform.
Now all three of these layers are intended to build recognition. In the best of what you could think of as a web way, because this is actually a Silicon Valley approach to this problem, not building big institutions but leveraging off other institutions. And in many ways it's a Wikipedia-inspired solution to the problem. Wikipedia's great insight, and of course many have followed the same model, and Sunlight does this right now, is to take the problem of reform and break it down into manageable, digestible, and segmentable problems. That people can work on 20 minutes a day, or 20 minutes a week, that gives them a sense of actually accomplishing something towards the end they're trying to accomplish, a public good they want to support, but that actually produces value towards that end. And these tools, embedded in this site, will be the most important part of how this site advances the movement.
Again, complementing, not competing, with the extraordinary work done by others. Not announcing some new idea, but really recognizing a new opportunity that this idea has to have some effect in changing the way Congress functions.
These are the first steps that we're announcing today.
The next steps will be to build the Board of this organization in a bipartisan way that makes it sound credible, much more credible than any flailing idea of a law professor, even a law professor backed up by someone as credible as Joe Trippi. But these steps, these next steps, will be to build this movement into something that can leverage the support we believe is out there to effect this fundamental change in the way Congress works.
Let me just add one final thought.
So in 1965 this man gave a radio address. In the radio address he said this:
"A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves largesse out of the public treasury." "From that moment on," Reagan said, "the majority always votes for the candidate promising the most benefits from the treasury - with the result that democracy always collapses over loose fiscal policy."
I think Reagan had it half-right. There is something fundamentally unstable about democracy. About the democracy that we've inherited.
But the danger here does not come from the masses. The problem we face right now is not that the masses have gotten together to steal, to rape, from the rich, all the money of society. The problem we face is in fact the reverse. It's the problem of crony capitalism, using power to capture government. Not wealth pumped down, but the reverse, wealth pumped up, a problem of the top 1% in our society taking advantage of this structure to the disadvantage of the bottom 99%.
This is profoundly destructive, of trust and democracy. This is the danger that Reagan should have recognized. And the challenge is whether we can in fact change this.
Now the "experts," political experts, will tell you, can't be done. It's not possible to focus people on this issue, it's not a concern of ordinary people, process always loses over substance. There are going to be many more important problems that the public faces, and that's what will get their attention.
And that might be a true description of how politics works today. And the challenge is whether we can change that, to get them focused on something more than the particular problems they now face.
But we shouldn't forget that there have been extraordinarily important moments in the history of America where process revolutions have succeeded. And more importantly, we need to point to what I think is a common recognition of a certain kind of problem.
So every one of you in this room knows an alcoholic or someone who has been hurt by alcoholism. I know it personally, very very significantly, in my own family.
What is the structure of the problem of an alcoholic? An alcoholic could be losing his family, his job, his liver, 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 have described is not the most important problem. It's just the first problem. It's the first problem that we have to solve if we're going to solve other problems. There are no end to extraordinarily difficult problems that we face right now in this country.
But we won't be able to address those problems sensibly until we solve this first problem, this dependence on money. Not a dependence that reveals itself in the way evil people act, but a dependence that corrupts even the way good people solve the problems they come to Washington to address. We need to solve this problem now. We need to take this extraordinarily important and powerful passion for change and direct it at the one institution that really needs to change if this problem is to be solved.
Thanks very much.
Transcipt of Lessig's Change Congress Announcement
A couple months ago I transcribed Lessig's announcement of the Change Congress movement-- since then, it's just been sitting on my hard drive. So in the spirit of spring cleaning and making good things more searchable, here's the full text of the announcement.