MAYDAY.US

Escape the 1990s

Lessig (via lessig.tumblr.com) — 2014-07-04

Original Post: http://lessig.tumblr.com/post/93500567957/escapethe1990s

In a twitter flare-up with Jim Harper at Cato, I hashtagged Harper with #Escapethe1990s. In his blog post, Harper says, “I still don’t know what the hashtag means.” Here’s what it means.

One of the most striking (and frustrating) features about debating the issue of corruption with some on the Right, even the libertarian Right, is the feeling that you’re talking to someone from another century. (As the 1990s are.) Specifically, older sorts, who cut their teeth on the fight against McCain-Feingold and the like, can’t seem to get beyond the arguments they made then against the reform legislation being considered then. Everything is about how awful it is that we reformers want to restrict peoples’ speech. How terrible it is that we want to tax people to subsidize speech they don’t agree with. And how terrifying it is to have the government decide how much either side gets to spend to wage his or her campaigns. Again and again, this parade of horribles gets trotted out to attack whatever reform proposal is being advanced. As if reformers, like these critics from the right, are also stuck in the 1990s.

All this is frustrating because these critics don’t seem to recognize that the proposals they are attacking have in fact been crafted to be responsive to their own criticisms from the 1990s. The critics aren’t so much sore winners, as sour winners, not even recognizing that their argument had force enough to force (at least some) reformers to rethink the architecture of reform.

This rethinking began with the incredible book by Ackerman and Ayres, Voting with Dollars. Rick Hasen, too, had done powerful work outlining an alternative to the 1990s “restrict speech” model of reform. Groups like Public Campaign have been pushing a non-“restrict speech” solution for years. In short, there was an industry that tried to meet the conservatives’ criticism, by crafting a different form of reform that was in fact responsive to their criticism. Not necessarily because these new reformers agreed with the criticism of the right. But because finding the common ground necessary to build a reform movement is much more important than finding a magic bullet to pierce an opponent’s argument.

I thought of my own proposal in Republic, Lost, in exactly this way. As I read the critics, the strongest attacks on “campaign finance reform” from the 1990s were (1) that it restricted speech, (2) that it forced people to subsidize political speech they don’t agree with, and (3) that it put the government in the position of deciding how much money each side had to fight their campaigns. Presidential public funding (remember, the funding device that benefited Ronald Reagan more than any other American (giving him a chance to run effectively in 1976, and by the end, funding his 3 national campaigns) did the last two — the taxes of liberals were used to support conservatives, and vis-a-versa, and the total amount each side got to spend was determined by government officials. Those flaws didn’t stop the Supreme Court from upholding presidential public funding in the dreaded Buckley v. Valeo. But they did encourage others to think about reforms that might not fall afoul against even those.

The Grant and Franklin Project was my effort at a conservative-compliant reform. Under this system, all voters would receive a tax rebate of $50 to cover a “democracy voucher.” (I should have called it a “republic voucher,” but ok). Voters could then give that voucher to any candidate who agreed to fund his or her campaign with vouchers or small contributions (up to $100) only. So Grant, $50; Franklin, $100.

Notice (please!) how the voucher program responds directly to all three conservative complaints.

First, it doesn’t restrict speech. It expands speech. $50 for every voter is $7B, more than 2x the total raised and spent in the last congressional election.

Second, it does not involve anyone “subsidizing” anyone’s speech. Every voter “contributes” at least $50 to the federal treasury; rebating every voter $50 is thus giving him/her back his/her own money. When someone spends his or her voucher, no one is “subsidizing” that speech.

Third, the government isn’t deciding how much each side gets to run his or her campaign. That’s determined by how many people give their voucher to a candidate. Unlike federal presidential funding, which, after qualification, gave each side the same, the amount of voucher funding each side gets is determined by citizens, not bureaucrats. Harper nonetheless rejects this program too. This, too, he says, violates the constitution. It does so, Harper tells us, because

if your preferred candidate is none of the above, your money will be used to fund political candidates that you don’t support. This is the evil of direct taxpayer funding of campaigns—taking money from a person to support speech of which he or she disapproves.

That’s not technically true. Someone with a voucher is free not to use it at all (and if so, then no one is “taking money from a person” to support anyone). But let’s assume for a second it does, because this is the real ipse dixit [arbitrary dogmatic statement which the speaker expects the listener to accept as valid –ed] of Harper’s reply. Harper says:

The “democracy voucher” is a tax break that subsidizes political speech, something about which the Constitution says Congress shall make no law.

Notice, of course, the Constitution says no such thing. It says that Congress shall not “abridge” the freedom of speech. More speech is not abridging speech.

Moreover, there is no rule in our Constitution that says that the government can’t “promote political speech” – so long, at least, as it is content and viewpoint neutral. And for all his hand waiving, Harper can’t point to a single source – either the actual text of the constitution, or an opinion of the Court – that suggests any constitutional problem with such a subsidy. The whole purpose of the Post Office, originally, was to subsidize political speech. And if presidential public funding is constitutional – which was Buckeley’s rule – then a voluntary system that enabled people to spend rebated tax money on a political candidate of their choice, or, if they choose, on no one at all is certainly constitutional. And I challenge Harper to offer one bit of actual authority to counter that statement beyond his “this is the way I wish the Constitution were interpreted” mode of argument.

No doubt one might argue against a voucher program on the grounds that there’s nothing wrong with the current system of campaign funding. (Good luck with that). Or that it would cost too much. But here’s where I think the Cato finding about “corporate welfare” – ~$100B per year – is so useful. If Cato is right, then if changing the system could reduce corporate welfare by just 10%, we could pay for the voucher program ($3.5B/year) more than two times over. It wouldn’t be money funded “out of debt,” as Harper writes. It would give the government a pretty good way to reduce the debt.

Finally, Harper writes

Professor Lessig has advocated against transparency, though, because it might “push any faith in our political system over the cliff.”

Of course, I have not “advocated against transparency,” though Harpers claim that I have proves the very point my article was making precisely.

Of course, I support vigorous and extensive transparency. The point of my article, however, was the limited utility in transparency because of the “attention span problem.” To understand the information within transparent data will often require more attention than the rational individual will give it – just as to understand the argument of my essay required more attention than Harper gave it. That means that merely making data available isn’t enough to deal with an underlying corruption problem. Transparency may therefore be a necessary condition of any proper political system. My only point was that it isn’t sufficient.


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