Authors: Lawrence Lessig
One Way Forward (9 page)
At the same time, the council initiated elections to a twenty-five-seat drafting commission, which would have ultimate responsibility for drafting a constitution. After some struggles with the Supreme Court, the government appointed the elected representatives to the council in April 2011.
The council was a completely self-governing body, charged with the task of drafting a new constitution based upon the framework established by the 2010 forum. Each week, the council assembled in a televised general meeting, accessible over the Internet. Every Icelander was invited to participate in those proceedings by submitting written comments or proposed new sections. Every week, beginning in April 2011, the council posted draft clauses on its website. The public commented on the clauses directly and through social networking sites such as Twitter and YouTube. By the end of the process, the public had contributed more than 3,600 comments and had submitted more than 370 suggestions to the council’s website.
In July 2011, the council submitted the draft of a new constitution to parliament. That draft will be voted upon in a public referendum sometime in 2012. The parliament will then determine whether to approve it and bring it into force. If it passes, it will be the first popularly ratified constitution in Iceland since it gained independence from Denmark in 1944.
Even for me—constitutionally committed to the genius of what open-source values can inspire—it is extremely hard to read the story of Iceland without at least a bit of anxiety. The cause was no doubt just. The means were extraordinarily ambitious. And, if successful, the constitution that this process produces could well inspire other nations to a similar faith in citizen politics. But to throw everything into the air at once takes real courage. It is not the sort of thing that nations do often, or well.
Yet in America, we don’t need such ambition. Or, better, it is ambition enough for us to make the relatively small change that we need to restore this Republic. We have no need to replace all of our Constitution, or most of our Constitution, or even lots of our Constitution. We instead have a narrow but profound flaw at the core of our Constitution, one that has allowed our government to become captured, and one that the insiders are not about to repair on their own.
We need to use every creative tool at hand to achieve this one small change. We need geeks, and educators; parents and city councils; business leaders and leaders from culture. We need citizens everywhere.
For it can be done. If you think about the other problems that our nation tackled throughout the course of the twentieth century, this one is tiny by comparison. America defeated fascism. It started the process to finally end institutionalized racism. It gave the cause of ending sexism new legal tools and important legal standing. And even conservatives on this Supreme Court have aided in the task of ending hatred on the basis of sexual orientation.
Each of those problems is impossibly hard. There’s no way to legislate an end to racism. It takes generations of hard work and the commitment of a people to their higher selves. The same with sexism and homophobia: These live deep within souls. They get bred early, and for some they become part of the DNA. It takes real work to root them out. The twentieth century honestly and firmly began that work.
The problem that I have described in this book is nothing compared with those. It is simply a problem of incentives for those who govern this nation. If we funded elections differently, politics would change. Overnight. In Connecticut, when clean elections were adopted, 78 percent of elected officials used the system in the first year.
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They did so because it made sense, as none of them had a deep-seated desire to live their lives as vassals to some baron of the 1 percent.
The same could be true of our Congress, too. If we, the giant, can learn to stand and walk and demand, then we, the People, the sovereign, can hack this system to make it true.
It will take insight and a certain discipline. There is passion enough. There are plenty of tools. There is a network that feeds authentic collective action. And when that network awakes, as it did to stop SOPA/PIPA, it has more power than the insiders have ever imagined.
If the leaders of these many movements can put aside their egos for just a bit, if they can imagine winning as part of an alliance, not on their own, if they can remember that even Moses didn’t get to the promised land, then there is a chance that this passion, plugged into this network, on behalf of this People, might slay this dragon.
That’s the most that can be said with honesty: There is a chance. But what alternative do we have? We are Americans. We all have a love of country that is every bit as deep as the souls who risk their lives to defend it. Whether victory is guaranteed or not, we need to fight for it. Again and again.
So let us begin. Now.
There is no chance that the Supreme Court had any clue about the trouble that it was causing on January 21, 2010. The Court is aloof. That’s one of its virtues. And the decision in
Citizens United
v.
FEC
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followed fairly directly from a string of recent cases that had all dropped without a trace.
But trouble it caused. For by deciding that our Framers had given corporations the right to spend unlimited amounts in political campaigns, the Supreme Court inspired a rare outrage that linked both Left and Right. A Washington Post–ABC News poll conducted immediately after the decision found that 80 percent opposed the decision (65 percent strongly), with Democrats outnumbering Republicans just slightly (85 percent vs. 76 percent).
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Justice Stevens was certainly correct when he observed:
While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
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In the two years since, we have learned a great deal about the world the Supreme Court built. We have seen, first, that the effect of
Citizens United
on campaigns and on the behavior of politicians is profound: It has become the era of the super PAC, in which unlimited and effectively anonymous political expenditures rule campaigns and Washington.
But we have also learned how easily political movements can become obsessed. The push for repeal has grown dramatically as almost a dozen amendments have been proposed and almost as many reform groups born. In city after city, resolutions are being passed, demanding that their politicians join the cause. And as this short book goes to press, thousands from across the country are rallying to recall the Court’s blunder and to push again for reform.
Yet, as I’ve argued here, we need to keep in mind one completely obvious fact: that on January 20, 2010, the day before
Citizens United
was decided, this democracy was already broken. And any reform that simply returned us to the world before
Citizens United
would certainly fail as a reform that mattered. We need to do much more than fix the Supreme Court’s mistakes. We must remake a republic dependent not upon campaign funders, direct or indirect, but instead, as
Federalist
52 puts it, “dependent upon the People alone.”
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How
is the challenge. I don’t write with the illusion that we can see over the horizon. Change will take time, and over time our strategies will need to evolve. We need to learn from what has worked and adjust as we go forward. And, most important, we need not a commander but a conversation, among citizens who recognize that none of us has ever done this before, but that all of us must do it now.
With the help of my publisher, Byliner, I hope to spread this first version widely. After a short period, and assuming the book takes hold, I will license it freely, and, based on feedback (at
oneway.lessig.org
), draft version two.
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That second version will be licensed freely from the start, and live on a wiki. That means that no single one of us will own it, but that all of us will be able to direct it.
For this is the character of everything that has been surprising and great from the past few decades: powerful, open-source projects that did what no one thought possible—from the Internet to GNU/Linux to Wikipedia to the Tea Party to Occupy Wall Street to the defeat of Hollywood’s anti-piracy monster, SOPA and PIPA.
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And that must be the character of this movement, too. At least, if it is to work.
I am grateful to the few who worked extraordinarily hard to make it possible for me to write this short book so quickly.
Lauren Henry, Sushila Rao, and Benjamin White provided excellent and speedy research support, guided and driven by Szelena Gray. I am indebted to them, and especially and always to her.
David and Melissa Sedano did an extraordinary job bringing
TheAntiCorruptionPledge.org
to life. I am endlessly thankful to them for their amazing work in absolutely no time.
Mark Snyderman helped me pretend I know something about the history of baseball. Maggie McKinley guided me through one small part of the Occupy movement. And David Zirin’s fury helped me understand a perspective I should have recognized more clearly, much earlier. I am thankful to each of them.
I am thankful as well to Wes Boyd, Stav Shaffir, and Matt Patterson, who allowed me to interview and quote them for this book, as well as to the many others who taught me about these movements.
It was Amanda Urban’s idea to put these thoughts to paper. I am thankful to her for pushing me to do it, as she has with every other book I have written.
Finally, I am hopeful that there will be a year when “the Holidays” don’t get interrupted by some urgent project. But I am endlessly grateful to my family for their understanding as I completed this “tiny book,” as my two-year-old describes it. And none deserves that gratitude as much as the woman to whom this, and everything, is dedicated. With perpetual love.
Appendix
If we’re to prevail, the Constitution will need to be amended. In this appendix, I offer a draft amendment, and I offer the resolution that a state legislature should adopt in order to force Congress to call an Article V convention.
Constitutional texts are law. They are legal code. Just like Python, C++, or JavaScript, they need to be crafted carefully to achieve the objective of the ratifiers. They are not slogans. They are not principles. They are texts that embody a principle, perhaps made popular by a slogan. But they need to be crafted in a way that assures that they work as promised.
I offer this proposed draft as a legal text. It is crafted as it is to respond to a legal context that it can’t directly change. I have tried, in the notes, to explain why each bit is needed as I have crafted it. Law is not rocket science. (Or maybe the better phrase here is “Law is not quantum physics,” since rocket science is actually not so hard anymore.) Anyone can study enough to understand the stuff I’ve referenced. But it does take study.
(1) For the purpose of securing the independence of the legislative and executive branches, Congress shall:
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(A) fund federal elections publicly, at no less than the equivalent of the total amount spent in the election cycle in which this article is ratified;
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(B) limit any non-anonymized contributions to candidates for federal office to the equivalent of $100;
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(C) have the power to limit, but not to ban, independent political expenditures within 90 days of an election, including, but not limited to, expenditures in support of, or in opposition to, a candidate for federal office.
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2. The First Amendment shall not be construed to limit legislation enacted pursuant to this article, save to assure content and viewpoint neutrality. Neither shall the First Amendment be construed to limit the equivalent power of state or local legislation enacted to regulate elections of state or local officers.
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3. Congress shall by law establish an agency for federal elections which shall enforce the provisions of this article, and whose principal officers shall be nonpartisan commissioners who have served at least 10 years as a federal judge. The agency shall have standing to enforce the provisions of this article judicially in the federal courts, and the judicial power shall be construed to extend to actions by the agency against Congress.
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4. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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The State of ____, speaking through its legislature, pursuant to Article V of the Constitution, hereby petitions the United States Congress to call a convention for the purpose of proposing Amendments to the Constitution of the United States of America.
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