Posts Tagged ‘Lawrence Lessig’

How the Supreme Court Nomination Process Rewards the Type of People Who Defer to Presidential Authority

Wednesday, May 12th, 2010

David Brooks did a great job today of describing the type of individual our current Supreme Court confirmation process tends to reward (to paraphrase):

A person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess, and who therefore we are forced to construct arguments based on speculation because they have been too careful to let their actual positions leak out.

Brooks locates this type of individual — as is his wont (see for eg. bobos) — in a general sociological group:

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

Brooks sees this as a flaw in his evaluation of Elena Kagan:

Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook). There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly…

But I was struck by the similarity of David Brooks’s evaluation of Elena Kagan now and Dahlia Lithwick’s evaluation of John Roberts when he was nominated:

I knew guys like [John Roberts] in college and at law school; we all knew guys like him. These were the guys who were certain, by age 19, that they couldn’t smoke pot, or date trampy girls, or throw up off the top of the school clock tower because it would impair their confirmation chances. They would have done all these things, but for the possibility of being carved out of the history books for it…

My sense that Roberts has been preparing for next month’s confirmation hearings his whole life was shored up by a glance at the new memos released by the Library of Congress yesterday. As early as 1985, Roberts was fretting about how federal government records disclosed to Congress before confirmation hearings could tank a nomination.

Roberts was widely seen to have been very “careful” and “cautious” throughout his life — intellectually and otherwise. Yet David Brooks had a different reaction to Roberts nomination:

Roberts nomination, how do I love thee? Let me count the ways.

Less important than this minor bit of hypocrisy (which Bill Scher for the Huffington Post mines for all it’s worth) — or perhaps partisan blindness — on the part of David Brooks (and haven’t we all been there?) — is the substance of his critique. Brooks never quite connects the dots — but seems on the verge of making a profound point.

There seems to be a connection between the personality type of Kagan and Roberts — the type of cautious, establishment-minded personality rewarded by our current nomination process — and the tendency of this type of person to defer to the highest authority figure in the American psyche, the President of the United States. In Roberts and Alito, we have 2 of Brooks’s Organization Kids who also happen to be 2 of the most pro-presidentialist Supreme Court justices in history. Though Kagan’s views on this aren’t clear — as she has made some comments indicating an expansive view of executive power only in the context of discussing the views of others — we do know that she felt the Bush administration went too far, unlike Roberts and Alito.

Though I would have preferred a justice more wary of executive power, for me personally, this concern is not enough to give me reason to oppose Kagan’s nomination and appointment. I do want to know more about Kagan’s views on this — to see whether and to what degree she conforms to Glenn Greenwald’s fears (which are, as it should go without saying regarding Greenwald, hyperbolic). Lawrence Lessig has pushed back convincingly against Greenwald on this issue — and of course, Greenwald responded by going ad hominem.

Both Greenwald’s and Brook’s critique ignores the structural element to this pick as neither addresses the degree to which our current confirmation process tends to reward cautious people whose public views are somewhat ambiguous but who are close enough to those in the executive branch that the President nominating them trusts them. The type of person who would meet these criteria would not tend to be the strongest supporters of the Court as a check on executive power. Even aside from the generational category of “Organization Kids,” this would tend to place people deferential to presidential authority into the Supreme Court.

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Also interesting: Ezra Klein posits a better analogue than John Roberts to understand the Kagan pick is Barack Obama himself:

When Obama announced Kagan’s nomination, he praised “her temperament, her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.” This sentence echoes countless assessments of Obama himself.

Obama is cool. He makes a show of processing the other side’s viewpoint. He’s more interested in the fruits of consensus than the clarification of conflict. In fact, just as Kagan is praised for giving conservative scholars a hearing at Harvard’s Law School, Obama was praised for giving conservative scholars a hearing on the Harvard Law Review. “The things that frustrate people about Obama will frustrate people about Kagan,” says one prominent Democrat who’s worked with both of them.

[Image by the Harvard Law Review licensed under Creative Commons.]

What Do Matt Yglesias, Ezra Klein, and Che Guevera Have in Common?

Friday, July 31st, 2009

 Answer: Not much.

But Democracy in America’s anonymous blogger seems to think that some of liberal bloggers Ezra Klein’s and Matt Yglesias’s recent posts suggest a new and profound (indeed revolutionary) disenchantment with our means of governance. DiA cites Klein who recently wrote:

[Health care] like climate change, is a litmus test for our government. Both are serious, foreseeable and solvable threats to our society. One threatens to bankrupt the country. The other threatens irreversible damage to the planet we live on. Responding to such threats is the test of a political system. And our system will fail it. We will not avert catastrophic climate change. We will not protect ourselves from health-care inflation.

Yglesias recently wrote this post I’ve noted before explaining how our current media-political system can be manipulated so easily by people acting in bad faith – and how that leads to bad policy outcomes.

DiA tries to summarize this generation of pundits and policy wonks – led by Klein and Yglesias:

Mr Klein exemplifies the generation of young left-leaning policy wonks, journalists and activists who have been formed politically by the reaction against Bush-era conservatism, and for whom the Obama presidency represents the first experience of wielding political power. Like Mr Klein, many of these young progressives are fundamentally moderate, process-oriented wonks who, long before the Obama campaign even began, had accepted that the pragmatic limitations of real-world American politics rule out any utopian, or even first-best, solutions to most public-policy problems. They have happily dedicated themselves to figuring out what kinds of reform are possible within the constraints of corporate and interest-group lobbying, ideological and partisan divisions, and America’s kludgey, creaking 220-year-old machinery of government.

But now, DiA suggests, they have abandoned this moderation and want a revolution – that they have become disillusioned about our media-political processes due to Obama’s lack of success.

Certainly, Klein and Yglesias are extremely critical of the processes by which policy is created and by which the public views and understands policy debates. They believe that this system is broken. But both believed this before Barack Obama’s recent troubles – as Yglesias himself pointed out in response to DiA.

What DiA is missing is that reformists (towards both the right and left, but here I will look only at the left) have long been extremely critical of our media-political process works. Just two days ago, in The American Prospect, executive editor Mark Schmitt wrote:

[T]he idea that America’s “existing democratic institutions are strong enough to deliver accountability ” flies in the face of all observed reality. For at least eight years, those institutions consistently failed to deliver accountability, and the Department of Justice and courts likewise failed to punish some of the greatest abuses of power in our history…

As Al Gore wrote in his book describing The Assault on Reason:

American democracy is now in danger—not from any one set of ideas, but from unprecedented changes in the environment within which ideas either live and spread, or wither and die. I do not mean the physical environment; I mean what is called the public sphere, or the marketplace of ideas.

It is simply no longer possible to ignore the strangeness of our public discourse. I know I am not alone in feeling that something has gone fundamentally wrong.

Or look at Lawrence Lessig’s lecture on Corruption – which eloquently makes the case for “disinterestedness” as one of America’s key founding principles which has been since lost. Read Glenn Greenwald’s blog – which constantly points out the deep and serious faults in our media-political processes. Obama himself made a number of these arguments. Virtually every intellectual reformist has a “theory of what’s wrong” – and what none of them seem to disagree with is that something is wrong.

While in other times, reformers may have focused more on accomplishing something regarding important issues – temperance, Wall Street greed, environmental issues, discrimination – today, the central problem facing reformers is how to reform the system itself. This is the essence of the reform movement today – from Obama to Gore, Lessig to Yglesias, Klein to van Heuvel.

Reformers have presented compelling critiques of how the media presents issues; of how Congress deals with issues; of how long-term problems such as an increasing number of uninsured, spiraling health care costs, climate change, copyright expansion, and many others are ignored or marginalized because any attempt to address these issues involves significant obstacles and risks in the present for an uncertain future benefit. One of the key beliefs that makes reformers reformers today is their understanding that America’s political system is broken and that our traditional democratic institutions just aren’t up to the job of managing serious and difficult areas and making rational, long-term decisions when the payoff only comes after policy-makers are out of office.

This idea was the basis of my post yesterday discussing Obama’s focus on outsourcing authority to independent, technocratic institutions as a way of getting around our broken media-political system.

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Replacing Souter

Monday, May 4th, 2009

There’s a few different schools of thought on how Obama should go about replacing Justice David Souter. Dahlia Lithwick – a few months ago – called on Obama to make his next appointment “a hero, a bomb-throwing, passionate, visionary, liberal Scalia.” Others are just calling for Obama to place someone liberal enough to counter-balance the extreme conservatives appointed by Bush. Conservatives and right-wingers are calling on Obama to appoint someone “moderate” – though given the political circumstances, it is almost guaranteed that they will not accept any appointment, no matter how “moderate.” All of this is based on a rather direct analysis of the Supreme Court – presuming that decisions are and will be made based on political viewpoints. 

I’m not trying to say that we should accept Justice Roberts’s oft-cited analysis of the judge as umpire – just calling the law as he sees it. I thought Obama made an excellent point back in July 2007 when he critiqued this view:

 When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. You know, he’s good to his dog. He’s so well qualified.”

I said, well look, that’s absolutely true and … in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

Ed Whelan over at the Corner is trying to make a big deal out of what he’s calling Obama’s lie – which is that judicial philosophy is unimportant. He cites the above quote as proof Obama thinks judicial philosophy is unimportant – but he doesn’t seem to have read it closely, as you can clearly see Obama say:

[I]t’s those five percent of the cases that really count.

The person Whelan really should be attacking – if he believes judicial philosophy is unimportant – is Justice Roberts who sought to minimize the role of politics in his decisions (at least in his pre- and post-appointment rhetoric.)

But what I’m interested most in is a justice who can move the other members of the Court – either through personality or their compelling understanding of the law. One historical type that has moved the Court would be a politician – such as Sandra Day O’Connor or Earl Warren – whose personality drew other justices to accept some of their decisions, and gradually shaped the Court over time. This is why I think it’s a bad idea to appoint a liberal version of Justice Scalia – whose personality actually hurt his politics. Jennifer Granholm is a good possibility on this front. As would Hillary Clinton or Al Gore if they were only younger.

In the alternative, Obama could appoint an ideologically interesting thinker – who is liberal, but nevertheless, thinks outside of the box. The two people that come to mind on this score are Cass Sunstein and Lawrence Lessig. Lessig is probably too young yet – and Sunstein has not only encountered surprising resistance to his appointment to an obscure position, but he probably would like an opportunity to take a crack at enhancing that position and testing his theories on libertarian paternalism. 

Finally, I like Harold Koh for the post – even though it is unlikely he fits into any of the above two categories. He’s national security thinker with a great resume. I don’t know his record on most issues – but I’ve heard him speak on national security law – my main interest – and he has strong, nuanced positions, viewing our national security apparatus as a whole system rather than as a series of isolated issues. He would be a strong voice in reigning in an executive branch that has barely pulled back in terms of it’s assertions of power in the national security arena.

The Last Thing We Need Is A Liberal Scalia

Thursday, February 5th, 2009

Dahlia Lithwick, who I rarely fail to mention, is one of my favorite writers, had a piece a few days ago on what she wants. In a Supreme Court justice that is. And I lightly paraphrase:

Wonky liberal lawyer seeking a hero, a bomb-throwing, passionate, visionary, liberal Scalia for a seat on the Supreme Court!

One of the main facts revealed in all those recent scholarship of the Rehnquist (O’Connor) court, though, was that Scalia’s brash personality and insulting style actually pushed the moderates to the left – or drove them to be less susceptible to being wooed to Scalia’s side in an argument. Though the Court has indisputably moved far to the right since Scalia entered it, seven of the past nine Supreme Court justices have been appointed by Republican presidents. The two appointed by Clinton were moderates chosen to be confirmed by a Republican Congress. Yet, the Court has only moved slowly towards conservative positions. There are many explanations of this, but for anyone who considers the social dynamics of the Court to be significant – and from her article Dahlia seems to be one who does – then Scalia’s antagonistic approach to O’Connor’s sloppy reasoning and Kennedy’s pomposity certainly must be one factor. A brash, bomb-throwing liberal then is exactly what the Court doesn’t need. 

What I think it does need is a libertarian-minded liberal who can forge an alliance with Scalia on certain issues – and perhaps Thomas as well. Both Alito and Roberts seem to be enamored of executive power – and perhaps that was why it was they who were chosen. I consider them lost causes. But Scalia and Thomas are conservatives of an older school – one which a contemporary liberal – such as Lawrence Lessig or even Cass Sunstein – has much in common with.

I think Dahlia would be happy with that though – a Lessig, a Sunstein, and a Lawrence Tribe. Perhaps a Harold Koh and an Elena Kagan. Instead of a bomb-thrower, I think Dahlia just wants a liberal with a vision instead of an incrementalist. On that, I agree.

What’s Next: The Court

Wednesday, November 12th, 2008

Before the election, some Republicans were trying to gin up some controversy by imputing obscure and extreme judicial views on Barack Obama – focusing especially on remarks he made in July 2007, described here by The Hill:

“[Chief] Justice Roberts said he saw himself just as an umpire,” Obama said. “But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be,” Obama said, adding that justices should understand what it’s like to be gay, poor or black as well.

Steven Calebrisi, founder of the Federalist Society, wrote a very influential piece appearing in the Wall Street Journal in which he combined the most extreme possible interpretations of the statement about empathy (first taken out of context) with a somewhat bizarre (but politically very useful for the McCain camp) interpretation of remarks Obama made in a 2001 radio interview about the Warren Court. This led Calebrisi to the grandiose conclusion that:<

Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation’s courtrooms.

Putting aside the fact that Calebrisi did not find it necessary to raise his voice against those who used his own legal theory – that of the unitary executive – to actually and explicitly place the president above the law, Calebresi’s concern here is misplaced, as I think you can see just by reading the passage above from The Hill.

But if Calebresi’s half-assed op-ed doesn’t help us understand who Obama would appoint to the Court, then what does?

After all, Supreme Court appointments can be a president’s greatest legacy – affecting policy for many years after a president has gone.

Potential Supreme Court Justices

Obama, as a former constitutional law professor, has obviously put a great deal of thought into who he might appoint to the Supreme Court. Many names have been floated – politicians like Jennifer Granholm, Janet Napolitano, Hillary Clinton, and Ken Salazar; academics such as Harold Koh, Elena Kagan, and Cass Sunstein as wel as a number of current judges. With Ruth Bader Ginsburg and John Paul Stevens likely to retire during Obama’s term, and David Souter wishing – according to Jeffrey Toobin, author of The Nine – to withdraw back to the19th century lifestyle he enjoys in New Hampshire away from the Court, Obama could get three – and if Obama is reelected in 2012 – even four nominations to the Court. Justice Scalia will undoubtably do everything possible to avoid retiring during Obama’s presidency, but he is getting older as well – and would be 80 by 2016. Justice Kennedy would be 80 as well – but he does seem to so enjoy being the swing vote that it is hard to see him ever leaving the Court.

Superficial factors in choosing the justices

  • Any justices Obama appoints will undoubtably be younger than is traditional – as Bush recently appointed two conservatives in their 50s in Roberts and Alito.
  • It is also likely that, as the Supreme Court has traditionally been factionalized by race, religion, and gender – from the mid-1800s when there was a “Jewish seat” on the Court and a “Catholic seat” to focus on keeping women and African Americans since the 1980s – Obama will want to appoint at least one woman and on Hispanic to the Court.

The Dynamics of the Court

Obama has spoken of how Justice Warren – as a former politician – was able to win majorities by winning over the other justices. Jeffrey Toobin, writing about the Court over the past decade, has described Sandra Day O’Conner having a similar role during her tenure. In fact, since the Court’s founding, former politicians have had a way of dominating the stately and apolitical Court – beginning with John Marshall. Which is why the first appointment Obama makes should be a former politician – probably a woman. Especially if John Paul Stevens, the unofficial leader of the liberal wing of the Court, retires, Obama will want a strong personality to take his place. As Janet Napolitano is the favorite to become Attorney General, that leaves Jennifer Granholm, Governor of Michigan and a former state attorney general as the most logical choice.

Beyond this first choice of a female politician, Obama’s options are more open.

For his second nomination I would reccomend an academic – Elena Kagan, dean of Harvard Law, or Harold Koh, dean of Yale Law, would be the logical choices here – as both are young and prominent liberals in academia. Koh’s name has apparently been generating real buzz as a potential Obama pick.

Certain to be on any short list is Cass Sunstein is an important legal scholar and a close friend of Obama’s. He recently wrote a book with the conservative economist Richard Thaler about libertarian paternalism.

There is one potential candidate I have not heard mentioned though – and especially if Scalia were to retire from the bench, this former Scalia law clerk, former Reaganite, and former libertarian would be the perfect choice – Lawrence Lessig, whose innovative work founding Creative Commons and now the Change Congress movement, and whose influential work on internet law, copyright and corruption have made him a legal star.

Libertarianism v. Liberalism

With these four appointments, Obama could profoundly alter the Supreme Court’s ideological make-up – by replacing the traditional statist liberals and Rockefeller Republicans on the Court making up it’s current left wing with a charismatic pragmatist, and other liberal, and two libertarian-influenced liberals.

Why I Support Obama

Monday, August 18th, 2008

A few months ago, on the Long Island Railroad in the evening on my way home after work, a young black woman asked me if she could sit on the inside seat. (I always sit on the outside, and this was a three person seat.) After she sat down, she noticed the Barack Obama button I had on my bag at the time and pointed to it and said: “Thank you.”

We went on to have a conversation about the campaign and the Broadway play she had just been to – but that, “Thank you” bothered me. She was not a member of the campaign or a relative of Obama’s. I, in fact, have raised over $3,000 for the Senator, donated a good deal myself, and have tried through this blog as well as other activities to support his campaign. Although I do not know this for certain – based on the tone, the way she said it, and the rest of our conversation, I think that she was thanking me, as a white person, for supporting Barack, “her” candidate.

What I felt, but did not say, was that I was supporting Obama not because he was black or because any of my friends are black or because I wanted to make up for persecution of blacks in American history – but because … well, I’ll get to that in a minute.

One more story. A co-worker of mine described Obama to me as an empty suit, a typical, spineless, academic, elitist, whose only redeeming and unique quality is his race.1 He never believes me when I deny that my support of Obama is because of his race.

I have explained several times on this blog my gradual evolution from a McCain supporter in 2000 to an Edwards then Hillary than Obama supporter in 2007, including most recently here. By the summer of 2007, I had decided to support Obama – and had started talking about trying to work for the campaign.2

Since then, my opinion has been reinforced by events more often than it was challenged.

My decision to support Obama did not hinge on any single issue or position, but was a reflection of my attempt to gather as much information as possible about all of the candidates. I assumed that the direction the country needed to go in was rather obvious – as most Democrats and many moderate Republicans agreed, from Secretary of Defense Gates to Secretary of Treasury Paulson to Secretary of State Rice to Senator Clinton to Senator Obama to (I thought) Senator McCain. The real question is what specific policies, what methods, what means could be used to get there.

I did not support Obama because he was black, liberal, progressive, young, charismatic, or an idealist.

What did lead me to support Obama first was his character and judgment: he is a liberal pragmatist, with a conservative temperament, who seeks to understand the world as it is, to identify our long-term challenges, and to push (to nudge it) in a positive direction by tinkering with processes and institutions and creating tools to get people more involved in the government.

In addition, there are three extremely positive movements that are associated with Obama’s candidacy:

The intellectual ferment around Obama’s campaign – with Lawrence Lessig, Cass Sunstein, Richard Thaler, Samantha Power, and many others, all reflective thinkers who have influenced his campaign policy and would play a role in an Obama administration – is tremendously exciting. Added to this ferment is a sense of humility that is a bit odd. Samantha Power, who traveled to war zones around the world in 1990s, and learned the lessons of Rwanda and Sarejevo and Kirkuk deeply, does not believe unilateral American force must be used to stop genocide. Rather she places the blame on a flawed international system. Lawrence Lessig describes our political system as inherently corrupt – yet his Change Congress movement is not a radical call to arms but a series of modest proposals designed to catalyze serious changes. Cass Sunstein’s and Richard Thaler’s libertarian paternalism probably best encapsulates the pragmatic steps that can taken to greatly improve the lives of most Americans.

The grassroots movement supporting Obama also reveals the hidden side of this past four years – as George W. Bush created a liberal majority. This movement represents a new force in American politics.

The international support for Obama demonstrates that, like many Americans, people around the world want a new face to represent America – a re-branding, and hopefully a reevaluation of America’s priorities around the world.

By the time John McCain abandoned sensible policies in his quest to win over the Republican base – and emphasized his least attractive quality, a preference for the use of military force – I had already decided Obama was the best candidate.

  1. Although I attempt to converse with my co-worker about this, our conversations always end up in some nether world of side topics – debating evolution or global warming or whether Congress has any power to intervene in foreign policy. []
  2. Unfortunately, a relative of mine persuaded me otherwise, saying that the wise thing to do was to wait it out. []

The Battle Over Whether Net Neutrality is the Fairness Doctrine for the Internet

Wednesday, August 13th, 2008


[FCC Commissioner Robert McDowell at a Tech Policy Summit. Picture by TechPolicySummit used under a Creative Commons license.]

Yesterday marked the opening of the political battle over net neutrality.

To this date, all the talk of “serieses of tubes” and the sporadic and localized attempts to create a tiered internet have been mere skirmishes.

But yesterday, Robert McDowell, an FCC Commissioner, attempted to push net neutrality into the political fray during an election season – and unleashed the first coherent attack on net neutrality.  To date, the arguments of opponents of net neutrality have focused on two fronts: pure incoherence (see Ted Stevens) and scapegoating “pirates.” 1

McDowell attempted to attack net neutrality (which has not been an especially polarizing or partisan issue to date) in a way that was both clever and dishonest – by linking net neutrality to the Fairness Doctrine reviled by conservatives.

(Because I feel there is a lot to explore with this topic, I’ve divided it up into three section – a synopsis of the situation/timeline; a more in-depth explanation; and an explanation of why it is so dishonest to equate the Fairness Doctrine and Net Neutrality.)

The situation:

The Politics:

Obama is in favor of net neutrality.

McCain thinks it’s all confusing2 and claims he doesn’t know what his position is (though he has made definitive statements opposing it.)

The Democrats are generally in favor of net neutrality.

It has not been a big issue for Republicans, but a few have come out against it (see Ted Stevens.)  The conservative base hates the Fairness Doctrine though with a passion.

Since the idea occured to them: Big internet companies want to charge more for customers to access certain internet sites, or to allow certain sites to have priority and to slow down others.

October 2007: The Progress and Freedom Foundation, a think tank funded by companies opposed to net neutrality, publishes a report explaining that a good way to attack net neutrality is to call it “The Fairness Doctrine for the Internet.”

Spring 2008: Internet providers begin experiments with tiered pricing and other anti-net-neutrality practices.

June 2008: A Republican Congressmen introduces a bill to outlaw the Fairness Doctrine (which has been illegal since the 1980s).

Later in June 2008: A conservative reporter publishes a story which alleges that Nancy Pelosi is considering reinstating the Fairness Doctrine.

August 12, 2008: An FCC Commissioner says that net neutrality could lead to the regulation of political speech on the internet, as if it’s the Fairness Doctrine for the internet.

The Drudge Report publicizes the speech with the scare headline:

FCC Commissioner: Return of 'Fairness Doctrine' Could Control Web Content...

Next: Conservative talk radio hosts begin talking about how net neutrality is the Fairness Doctrine for the internet.  Conservative bloggers agree and publicize this as well.

Then: These conservatives begin to raise the issue in attacks on Obama, liberals, etcetera. Progressives and liberals defend net neutrality.

And then: Independent-minded people and journalists who haven’t been paying attention to this issue finally notice now that conflicts are arising.  Journalists cover the issue giving “both sides” and independents throw up their hands, unable to pick a side.

And: Conservatives mount a campaign attacking Democrats.  Even those conservatives who support net neutrality are silent because they’re happy for any issue on which they can hit Democrats and which they can use to fundraise.

Finally, January 2009: After the election, Democrats attempt to pass net neutrality legislation.  A grass-roots structure has been created to oppose them, and many Republicans have publicly committed to oppose it.  An obvious policy choice becomes a struggle to enact.

This is how public opinion is manipulated.  This is how our political system is corrupted as the obvious and clear policy is shrouded in spin and the consensus is replaced by deliberate polarization.

The backstory

The Fairness Doctrine (which required companies that licensed public airwaves “to present controversial issues of public importance in a manner deemed by the FCC to be honest, equitable, and balanced”) had been considered a key impediment to a conservative agenda after many conservatives came to believe that that the media played a key role in their eventual defeat as they fought against the Civil Rights Movement in the early 1960s and anti-war movement in the late 1960s. They believed that the media was essentially liberal and that the battling liberal and conservative opinions that were forced onto the airwaves because of the Fairness Doctrine merely ended up legitimizing the inherent liberal bias of the news itself rather than effectively getting across conservative viewpoints. After legal challenges beginning in the late 1960s, the Fairness Doctrine was finally abolished in 1984.  This led directly to the right-wing talk radio boom in the late 1980s – from Rush Limbaugh to Bill O’Reilly to Sean Hannity.  This talk radio boom was an essential part of the creation of the right-wing echo chamber and conservative successes that followed, beginning with the 1994 Gingrich revolution.  Without the end of the Fairness Doctrine and the launch of talk radio, even Newt Gingrich acknowledges that the Contract With America would not have been possible.

This history is not well known among liberals – but it is common knowledge among the millions of right-wing radio listeners.  And there are many such radio listeners.  Rush Limbaugh’s audience alone is estimated to number over 20 million a week (and his recent contract extension has him making $50 million a year until 2016).  After the 2004 election, many Democrats, trying to re-group and understand the Republican dominance of the ideological debate since the 1980s, saw the attacks on the Fairness Doctrine as an essential part of the Republican strategy take control of the political debate.  (Democrats John Kerry, John Edwards, Dick Durbin, and others have all made positive comments about the Fairness Doctrine, although none has declared explicit support for it’s return.)

This June, John Gizzi of Human Events magazine (which has been spouting conservative propaganda since 1944) reported that Nancy Pelosi was in favor of reinstating the Fairness Doctrine.  This revelation – though not picked up by the mainstream media – echoed through the conservative blogosphere and talk radio energizing a dispirited conservative movement.

Putting aside policy considerations, the Fairness Doctrine is as anathema to conservatives as the tiered internet is to the web-savvy.  They see it as a threat to their power, to free speech, and as an attempt to marginalize them and their politics.

Which is why McDowell’s comments today are so savvy.  By equating the Fairness Doctrine with net neutrality, he is attempting to polarize the public away from a consensus in favor of net neutrality into two competing camps. This is not all McDowell’s genius idea.  The Progress and Freedom Foundation (PFF) published a paper in October 2007 laying out this exact argument titled Net Neutrality: A Fairness Doctrine for the Internet (PDF).  The PFF of course is an “independent-minded” organization and think tank bankrolled by Comcast, AT&T, Clear Channel, Time Warner, and Microsoft among other enormous companies that stand to profit from opposing both the Fairness Doctrine and net neutrality.

What struck me when reading McDowell’s description of net neutrality as a kind of Fairness Doctrine for the internet was how off the comparison was – and I knew immediately that it was either the result of idiocy similar to Ted Stevens’s tubes or a deliberate attempt to mislead the public about net neutrality.  After finding this white paper above and tracing the history of how the Fairness Doctrine suddenly and conveniently became a political issue in this electoral cycle – it seems clear that this is part of a Republican attempt to energize their base in opposition to net neutrality and find an issue on which to attack the Democrats come November and most important, to boost fund raising among those companies that oppose net neutrality in the meantime.

Which is why I say: The battle over net neutrality has been joined.

The forces that oppose net neutrality are now attempting to break up the bipartisan coalition that has supported efforts to legislate net neutrality. They are finally advancing serious (if dishonest) arguments against it.  With the Democrats likely to expand their majority in Congress and the frontrunner for the presidency a Democrat who has been a vocal advocate of net neutrality, this is the big corporations’ only chance to push net neutrality through.

If you’re wondering about McCain’s position on net neutrality, he’s not sure.  He told Brian Lehrer of WNYC that he “goes back and forth on the issue” – although conservative sites have reported that he flat-out opposes it.  Of course, McCain still doesn’t know how to “get online by [himself].” Given John McCain’s recent history of giving up principled positions in order to win over the right-wing, I think it’s a safe bet that a President McCain would finally figure out his position on the issue of net neutrality to the detriment of all internet users.

Why Net Neutrality is Very Different from the Fairness Doctrine

While the Fairness Doctrine forced broadcasters using the public airwaves to include dissenting opinions when discussing controversial issues, net neutrality prohibits internet service providers from discriminating based on content.  It’s comparing bananas to strawberries.  Both involve government regulation.  Both involve content.  Both involve media.  One forces the media to add content they would not otherwise.  The other prohibits those delivering the content to discriminate and favor some content over others.

This inherent openness is widely described as the core strength of the internet.  It allows dissenting voices to be heard.  It allows a more free market to emerge.  It is one of the essential characteristics of the architecture of the internet.

The Fairness Doctrine, despite a vogue among certain Democrats who have flirted coyly with the idea recently, seems outdated in this world with far greater media options.  It was designed for a world in which the national media was dominated by three television stations and dissenting opinions could be quashed merely by ignoring them.  Lawrence Lessig, a great proponent of net neutrality, has said that in today’s media environment, he believes that the Fairness Doctrine is unconstitutional. Barack Obama, another liberal and a strong supporter of net neutrality, has also indicated he is opposed to reinstituting the Fairness Doctrine.

Net neutrality and the Fairness Doctrine are entirely seperate and distinct.  The Republican efforts to confuse the public on this issue have begun.  Stay on the lookout – for you can bet this isn’t the end of this campaign.

  1. AAAAAARGH! []
  2. His exact quote is: “I go back and forth on the issue. []

Process Revolutions

Tuesday, May 20th, 2008

Lawrence Lessig
[Photo by Robert Scobel.]

Lawrence Lessig described an interesting concept in his “Change Congress” presentation. He briefly mentioned an idea that I do not recall hearing before; yet this idea neatly provides a missing explanation in my understanding of change and revolution.

Throughout history, revolutions, though beginning with glorious idealism, have almost never ended well. The French Revolution was a bloody affair that devolved into totalitarianism; the revolution of Communism was likewise bloody and totalitarian; the same can be said of many of the smaller and less ideological revolutions against colonial powers and monarchies. As often as not, the main change these revolutions accomplished was to replace one evil with another.

A period of change is always a period of danger – and when the leaders of a revolution are focused on achieving hubristic goals, especially goals based on abstractions and ideology, they must resort to totalitarian means. As Arthur Koestler in Darkness at Noon wrote about a fictional Communist revolution:

The sole object of revolution was the abolition of senseless suffering. But it had turned out that the removal of this second kind of suffering was only possible at the price of a temporary enormous increase in the sum total of the first.

The great anti-totalitarian novels of the second half of the twentieth century, Brave New World, 1984, Darkness at Noon, and Animal Farm, all drove home this single insight: that ideological, goal-oriented revolution inevitably led to totalitarianism; that when revolution prioritized the ends over the means, enormous suffering was the immediate result.

The rare alternative to these goal-oriented or ideological revolutions are process revolutions. While American history has had a number of ends-focused revolutions – the original American Revolution, the Civil War, and the Civil Rights Movement – these movements all had more or less discrete goals which could be achieved (seceding from Britain; preventing the secession of the South; and ending the legal discrimination against African Americans). These were revolutions whose purpose was not to tear down the existing social and governmental structures, but to amend them in discrete ways.  The concrete nature of the goals of these revolutions in addition to extraordinary leadership1 of these movements mitigated the dangers inherent in revolution and rapid change through American history.

What Lessig points to is that there have been other less dramatic, and equally as important, revolutions in American history. Lessig cites some examples: the Second Constitutional Convention; the Progressive movement; and the Watergate reforms. These revolutions focused on creating and changing processes rather than on specific ends; their results have profoundly affected our society and have been generally beneficial, standing in stark contrast to the more extreme and more painful ideological revolutions.

Lessig suggests that today our society may be primed for another process revolution, that a political movement may be able to reform our politics in order to allow us to tackle the many festering long-term problems we face: global climate change; terrorism; growing domestic and international inequality; a broken health care system; an imbalance of power in Washington; institutional corruption; a declining manufacturing sector.  Senator John McCain in his 2000 campaign and Senator Barack Obama in his 2008 campaign2 did and have based their candidacies on reforming our politics to allow us to tackle the more fundamental problems we must face.

Obama has taken the further step of advocating process-based change.  He does not just want universal health care; he wants to televise the task force and committee meetings, and make as many of the discussions of how to implement this idea public and available via television and the internet.  While Hillary Clinton, as First Lady, tried to push through health care reform by meeting secretly with lobbyists, cramming her bill with special deals for all sorts of special interests, and threatening members of her own party who proposed alternate plans, Obama believes that how we achieve health care reform is as important as achieving it.  With this, and many other policies, and given many of Obama’s top advisers, it is clear that an Obama presidency would attempt a process revolution to set the country back on the right track.

As you might guess – based on his focus on long-term issues and on the corruption of the political process – Lawrence Lessig was an early endorser of Barack Obama. (Lessig’s lecture referenced here, is below the fold.)

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  1. George Washington; Abraham Lincoln; Martin Luther King, Jr.: all canny politicians who married idealism to pragmatism, who exercised great restraint, who called on our “better angels”, and who did not seek personal power. []
  2. Though John McCain has paid lip service to reform in his 2008 campaign, he now endorses most of the fruit of the tree he called corrupt. []