Larry Lessig's Latest Big Challenge: Fixing The Way We Elect A President

from the another-big-project dept

Over the last few years, Larry Lessig has not shied away from trying to bring about change to the corruption he sees in our political system with "big" projects. Rather than chipping away at ideas, Lessig has been announcing huge, almost impossible plans, generating lots of attention and hoping that they either create real change, or at the very least, create discussion on the topics he's attacking. So far, even he admits that most of those projects have been less than successful in achieving their goals. Back in 2014, there was his attempt to build a crowdfunded SuperPAC with the goal of ending SuperPACs (supporting candidates who would change campaign finance). While they raised a lot of money, Lessig admitted that the organization failed to make a real difference in the elections it participated in. Then there was the plan to call a new Constitutional Convention (which continues to garner discussion to this day, but mainly from those ideologically opposed to Lessig). And, of course, the failed campaign to be the Democratic nominee for President, where his main goal was to get into the debates -- only to have the Democrats change the rules to keep him out.

Each of these can certainly have the appearance of a rather quixotic approach to taking on government corruption. And while there are many things I do agree with Lessig on, there's also a pretty long list where I disagree with him. But, what I respect is that even as outwardly "crazy" as many of these plans appear to be, there's always an astoundingly detailed, well-thought out and well-argued logic behind them, even if the likelihood of success is low. He's making big gestures that may have a low probability of success, but these aren't campaigns that have just been thrown together on a whim -- they have a clear purpose and fit in with a larger theme, often trying to game the system in some clever way. They're gimmicky, but in ways that at least make you think.

All of that is true with his latest project as well: an attempt to change the way we elect the president. Obviously, many people who were upset with the results of last year's election (and lingering anger about the 2000 election) have been arguing that it's time to get rid of the electoral college. And, frankly, it's kind of difficult to justify why we still have an electoral college when it's quite clear that it serves no really useful function. But, of course, because of the way things worked out in 2000 and 2016, even discussing the problems of the electoral college have become (stupidly) partisan. And, because it's part of the Constitution, getting rid of the electoral college is a near impossibility.

So, instead, Lessig is attacking things a step down the chain with his EqualVotes campaign. The argument, again, makes a lot of sense. Don't get rid of the electoral college -- but stop giving all electoral votes in a state to the winner of the popular vote in that state. This is the part that's really undemocratic. As Lessig explains:

A Republican from California is no less a United States citizen than a Democrat. Yet her vote for President counts for nothing. Likewise with a Democrat in Texas. There is no reason not to allocate electors in a way that gives equal weight to every citizen’s vote, at least within the constraints of the framers’ original compromise.

States initially adopted “winner take all” because it amplified the power of that state’s votes. This troubled even Jefferson, who recognized the incentive to try to expand a state’s influence. As he wrote, “[a]n election by districts would be best if it could be general, but while ten States choose either by legislatures or by [winner take all] it is folly and worse than folly for the other States not to do it.”

Yet once (practically) every other state had embraced winner take all, its important effect was not to amplify, but to shift the focus of the presidential campaigns. This is because under “winner take all,” the only states in which it makes any sense for a presidential candidate to campaign are “battleground states” — states in which the popular vote can be expected to be so close that one side has a real chance to beat the other.

Thus in 2016, two-thirds of campaign events happened in just 6 battleground states — Florida, North Carolina, Ohio, Pennsylvania, Virginia, and Michigan. Four battleground states — Florida, North Carolina, Ohio and Pennsylvania — saw 71% of campaign ad spending and 57% of candidate appearances. All together, the 14 battleground states saw 99% of ad spending and 95% of candidate visits for campaign purposes.

The argument, then, is to try to force states away from "winner-take-all." Right now, only Maine and Nebraska don't do winner take all with their electoral college votes, but they both don't have many votes anyway.

Lessig's plan to bring this about is to bring legal challenges and hopefully get them to the Supreme Court. As Lessig explains:

The Supreme Court has made it clear that the principle of “one person, one vote” applies in the “Presidential selection process”—first in a set of cases in the 1960s, and most recently, in 2000, in a case called Bush v. Gore. But the Court has not yet considered whether “winner take all” rules are themselves consistent with “one person, one vote.” Delaware asked the Supreme Court to consider the question 50 years ago. The Court declined the request for review.

It is long past time for the Court to address this inequality directly.

In a separate post, Lessig has laid out the reasoning more clearly and responded to some of the key questions. The sort of judo move here, is that Lessig is effectively trying to use the Supreme Court's reasoning in Bush v. Gore to make this work -- and he's argued that if you supported the Supreme Court in that ruling, you're being inconsistent if you argue against the case he's hoping to bring, as they're based on the same principles of one person, one vote.

The real question for the opponents here is Bush v. Gore (2000): If the application of “one person, one vote” to restrict winner-take-all is invalid because the Framers never intended the clause to be used in that way, was the application of “one person, one vote” to the Florida recount invalid, because of course, the Framers of the 14th Amendment had no intent whatsoever about the Supreme Court supervising the state’s rules for counting or recounting votes?

The point is just this: It’s perfectly respectable to say, Bush was wrong, and our claim is wrong as well. But it is selective to say, Bush was right, but our claim is wrong.

Of course, there are still others who argue that a proportional breakdown will create other problems as well, such as those who support an even more radical change: to a ranked choice voting system. And while I agree that a ranked choice setup would be much better, it has basically zero chance of happening any time soon. Lessig's chances with this lawsuit appear quite slim as well, but they're at least above zero. And, yes, I'm sure some people will point to the National Popular Vote Interstate Compact, as a sort of "competing" idea to Lessig's to force a move to make the popular vote actually matter -- and Lessig has said he's supportive of that effort too -- he just sees EqualVote as another way of forcing the issue.

Either way, this is a project worth paying attention to -- even if it may be a longshot. Lessig may take a lot of these longshots, but if he gets one right, it could have a pretty major impact.

Filed Under: elections, electoral college, larry lessig, one person, one vote, president, supreme court

What The Election Means For Stuff Techdirt Cares About?

from the probably-not-good... dept

So, with basically all the big predictors predicting a fairly easy Hillary Clinton victory last night, I was planning to write a post explaining the many serious problems with her vague, confusing and mostly empty tech policy proposals -- and how there were going to be lots of things to pay attention to and fight for in the next four years. But with the surprise Donald Trump victory, it's basically even worse, in part, because he has no tech policy at all and on the issues that we care about he's bad to horrifically terrible.

Here's a quick look at some of the issues that we care about and where Trump comes down:

1. Free speech: Clinton was bad on this, but Trump is the one with the long history of bogus defamation threats and lawsuits -- and a promise to open up our libel laws and make it easier to sue for defamation. Say goodbye to any chance of a federal anti-SLAPP law, and watch out for much worse.
2. Mass Surveillance: Again, an issue where both candidates were terrible, and both seemed eager to expand mass surveillance and ignore the 4th Amendment. But again, Trump seems to care even less about the possible ramifications of this -- and has even suggested that he'd like to use the power to go after his personal enemies, rather than the enemies of the country. And, outside of the Presidential election, the 4th Amendment took a huge blow in two key Senate races as well. Senate Intelligence Committee head Richard Burr, who doesn't seem to care in the slightest about the 4th Amendment, beat his opponent, who used to run the North Carolina ACLU (an organization that cares deeply about the 4th Amendment). Burr's victory was likely, but the polls (ha!) were at least close. Up in Wisconsin, however, basically everyone was predicting a return to the Senate for Russ Feingold, the only Senator who voted against the PATRIOT Act and a strong supporter of civil liberties. But in an upset, he lost to incumbent Ron Johnson.
3. Encryption: I don't believe Trump weighed in specifically on the whole "going dark" debate, but given his comments on mass surveillance and supporting law enforcement over all else, I'm guessing that the chances of a bill banning encryption just got a hell of a lot stronger. Download some strong encryption software now and learn how to use it, folks.
4. Internet Governance/Net Neutrality: It's just bad. Trump supported a ridiculously dangerous plan based on near total confusion about how the internet works. And I'm guessing this will present a big opportunity for Congress to gut net neutrality as well. Enjoy more power for AT&T and Comcast, folks.
5. Copyright: Uh, who the hell knows? I don't think it's an issue that Trump has ever remotely weighed in on, but it seems unlikely that he'd surround himself with folks who understand the nuances of copyright policy and its free speech implications.
6. Patents: Ditto the copyright statement. Again, I fear that given his previous statements, he'll focus on using patents for much greater protectionishm, rather than greater innovation.
7. High tech immigration: Hahahahahahah.
8. Automation, Drones, Future of work, etc: Well, considering how focused Trump was on bringing back obsolete jobs, rather than ever mentioning innovation or how new technologies can change stuff... not expecting good things here either.
9. Police brutality: Yeah, another one where Trump has made himself clear that he's going to side with the police no matter what. That's not good for basic civil liberties and the rule of law. "Law and order" and due process don't always go well together.

In short, no matter who won last night, there would be lots of things to be worried about on the kinds of things that we talk about -- but with Trump it's pretty bad. On the issues he's weighed in on, he's taken really dangerous positions. On issues he hasn't, there's little suggestion that he has the understanding or even the basic intellectual curiousity to understand what's important about them. I recognize that many of these issues aren't the key ones that people are worked up about -- and they certainly have very little to do with why Trump was elected. But they do matter. Trump has talked about protecting the constitution and making America great again. To do that, it has to mean more than just protecting the 2nd Amendment -- and it has to come with supporting actual innovation. That seems a lot less likely right now and that should be a major concern.

Filed Under: donald trump, first amendment, fourth amendment, hillary clinton, president, surveillance, white house

No Matter Who Our Next President Is, They Won't Understand Technology

from the that-seems-like-a-problem dept

Politico has an article with a misleading title -- the return of the Luddite president -- which discusses how neither of the two major party Presidential candidates are even remotely tech savvy. The headline is an unfortunate oversell. Luddites aren't just people who don't know anything about technology. They're people who actively dislike certain technologies, in the belief that such advances will harm their own livelihoods. In a broader sense, the term is used to discuss people who generally dislike the march of technological progress. Again, that does not appear to be the case with either of the two candidates, who (at best) might just be described as agnostic to/indifferent to new technologies and somewhat ignorant on what that might mean from a policy perspective.

Clinton's tech travails are all over the headlines, including the lax security of her home-brewed email server and her documented struggles with fax machines — and the recently disclosed hacking of the Democratic National Committee's emails won't do much to burnish her party's image of cyber competence.

But Trump's hardly a candidate for the Geek Squad either, despite the prolific round-the-clock tweeting strategy he uses to dominate the headlines. He has boasted that he hardly ever sends emails — and, like Clinton, he often relies on staff to print news articles off the internet.

“I’m just not a believer in email,” Trump said during a news conference Wednesday where he criticized Clinton's use of a private server when she was secretary of State.

Of course, this is still problematic! Technological innovation is going to have a massive impact on a huge list of issues that any President is going to face over the next four years. And not understanding those issues, let alone how they may impact the policy choices that are being made is worrisome -- just not as worrisome as someone who actively dislikes technological progress.

Still, there are reasonable concerns here:

“These are two candidates who don't have their hands on the technology, and that’s unfortunate, because without that it’s difficult to understand this stuff on a deeper, more visceral level,” said Peter Leyden, a futurist and former managing editor of Wired who was an early Obama backer in Silicon Valley....

[....]

“We're on the verge of a fundamentally different economy that’s being absolutely transformed by the next wave of technology,” Leyden said. “It will have huge ramifications on society. And someone running the goddamn country has to know that."

Unfortunately, that doesn't seem likely. And that's probably going to keep us at Techdirt pretty busy for the next four years.

Filed Under: donald trump, hillary clinton, innovation, policy, politics, president

Larry Lessig Goes Even Bigger: May Run For President On The Single Issue Of Money In Politics

from the go-big-or-go-home dept

Last year, Larry Lessig got plenty of attention for his MAYDAY PAC, which was an attempt to raise a bunch of money to back candidates who promised to reform campaign finance laws. The 2014 campaign was supposed to be a "test" to raise around $12 million to see what could be done, with an eventual goal of raising a lot more for the 2016 campaign. Even the 2014 campaign was somewhat audacious (and somewhat misunderstood). And after the 2014 election, many argued that MAYDAY was a failure in that it really failed to have much, if any, impact in the campaigns that it took part in. To me, it seemed a bit premature to make that argument, as the whole point of experimenting and testing is to learn, but in politics everything is a horse race, and there is little in the way of long term thinking or strategy.

Either way, just a few weeks ago Lessig announced that he was handing MAYDAY over to Zephyr Teachout, a well-known professor who used to be director of the Sunlight Foundation -- and who caused a political stir last year by doing surprisingly well in running against Andrew Cuomo for governor of NYC. Teachout taking over MAYDAY seemed like a natural fit.

But what of Lessig? His own post mortem on MAYDAY suggested he wasn't ready to give up the fight, and it appears that the results of the first round of the MAYDAY experiment didn't scare him off from taking chances on making incredibly big bets. Crazy bets. Because now he's basically running for President. Sort of. Maybe. You kind of have to watch this video to understand: In short, he wants someone to run as a "referendum candidate" -- someone who will run entirely on this issue of fixing corruption in politics, with the promise that once in office, they will focus on solving that one issue and then resigning immediately, and handing over the job to the Vice President. In this case, the way he'd pursue fixing corruption is to pass The Citizen Equality Act -- a bundle of election reforms that Lessig has been arguing would make a real difference in getting money out of politics. Lessig claims he's been looking for someone else to stand in as that candidate, and will happily focus on someone else if the right candidate emerges -- but, if no one else is able to do it, he'll be that candidate himself.

For now, Lessig is trying to raise $1 million by Labor Day to see if this is possible. If he doesn't raise that much, the plan will be shut down (and no one's money will be taken).

I'm not sure what to make of all of this, frankly. Lessig has been trying for a bunch of moonshot ideas over the past few years -- including holding a new Constitutional Convention, among other ideas like MAYDAY and campaign finance reform. You can't say he isn't being bold and trying some crazy big strategies in trying to make these things an issue. And I really appreciate and respect Lessig and his way of thinking about all of this. But... something about this latest move feels almost too gimmicky. Yes, to get people to actually take on this issue, perhaps a gimmick is needed. And maybe Lessig is right to keep trying ever more audacious gimmicks until he finds the one that clicks. I'm glad he's trying and I hope he succeeds -- and chances are I'll donate to this campaign. But it still feels like a gimmick, and it bugs me that we need gimmicks to fix our political system. I'm guessing that Lessig might actually agree with that statement, but argue that there's no way around this unfortunate fact, so he's going to play the game. I just wish it didn't need to happen that way.

Filed Under: citizen equality act, corruption, larry lessig, money in politics, politics, president, referendum, referendum candidate

Wouldn't It Be Something If We Had A President Who Believed In Liberty?

from the to-dream-a-little-dream dept

Dan Gillmor has an absolutely fantastic "wishful thinking" speech he'd love to see from a future Presidential candidate, one in which liberty takes a front seat, rather than is seen as something that needs to be chipped away. Go read the whole thing, but here's a snippet to suck you in:

When people say, "You have nothing to fear if you have nothing to hide," ask them if it's fine to install cameras in their homes, not just in the living room but the bedroom and bathroom. Ask them if they'd mind wearing a microphone and video camera every day, so others can check on what they've said and done.

You are guilty of something. I guarantee it. Lawmakers have created countless new crimes and punishments, and allowed law enforcement to extend old laws in dangerous ways. Have you ever told anything short of the absolute truth when filling out an online form to use some service? We can charge you with a felony for that. And, by the way, we don't need to convict you at trial. If you are a target, we can ruin you financially if you try to defend yourself. This is what we expect in banana republics and police states, not here. And as the surveillance state expands, it will create more targets among people like you.

Our political leaders have made a calculation in recent years. They believe you are too frightened, too cowardly, to face the truth – and that you think liberty is much less important than temporary safety.

We are human. Terrorism unleashes our deepest fears, and our most lethal fury, even though the risk for any one of us is vanishingly low. We must challenge the fear mongers, and ourselves.

Part of the problem we have today is that very few elected officials care about liberty. They care about power, and they believe, incorrectly, that their job involves ditching liberty in an attempt to retain power (which they falsely argue is about "protecting Americans" despite little evidence that the power grab protects anyone but their own interests). It would be an amazing step forward if there were a President who remembered why liberty was such an important issue to our founding fathers.

Filed Under: civil liberties, liberty, politics, president

Court Says It's No Free Speech Violation To Kick People Out Of Presidential Speech Due To Their Bumper Stickers

from the but-does-it-make-sense dept

In an interesting appeals court ruling, a court has said that there was no free speech violation in two individuals being removed from a George W. Bush speech (while he was still President), because of the bumper stickers on their cars (which were decidedly anti-Bush). While I'm a big supporter of free speech -- especially when it comes to criticizing the President or other elected officials -- I have to admit that I tend to agree with the court here. The President and his staff had every right to determine who attended the speech for whatever reason. Excluding anyone from hearing a speech isn't a violation of their free speech rights, because there is no guaranteed right to attend such a speech in person. That said, I think it's particularly lame that a President -- or anyone in authority -- would purposely keep out those who disagree with them, rather than being willing to respond to their criticisms. As we saw just last week when President Obama responded directly to Republican questions, responding to those who disagree with you can often be quite a lot more productive than ignoring them.

Filed Under: attendance, criticism, free speech, president, speeches

White House Confirms: President Keeps His Blackberry

from the now-about-the-IM dept

There were some stories yesterday saying that, despite earlier worries he'd be forced to give it up, President Obama was able to keep his Blackberry -- and now the White House has confirmed it. Apparently, some security software has been added, and a very limited number of people will know the email address. Also, it appears that the administration is noting that the Presidential Records Act does allow an exception for strictly personal emails. So, while the President is being told to consider any emails he sends to be public, strictly personal email to friends or family will likely not be kept and revealed. What isn't entirely clear is who determines what is, and what is not, personal. In the meantime, how long until we hear about the first Obama-email-inspired phishing scam? You know someone's going to try to use a fake Obama email address to try to scam people... Now, let's see what they can do about giving instant messaging back to White House staffers.

Filed Under: barack obama, blackberry, email, president

Obama Fighting For His Blackberry... But May Be Losing

from the the-lawyers-win!-the-lawyers-win! dept

Right after the election, there was plenty of talk about how President-elect Obama would need to give up email just as President Bush did when he took office eight years ago. As plenty of people pointed out at the time, this seems like a pretty silly concept. There should be at least some way to allow Obama to continue to use this important and useful form of communication -- if only to allow him some access "outside the bubble" of DC. And, indeed, Obama made it clear that he would fight to figure out some way to keep emailing -- especially via his precious Blackberry. However, the latest news isn't looking good -- as Obama is noting that he still has been unable to convince both the security folks and the lawyers that he should be allowed to keep the Blackberry. Apparently, there are times when it's not so good to be the king.

Filed Under: barack obama, email, open records, president

It Makes No Sense For The President To Not Use Email

from the get-with-the-times dept

Eight years ago, we noted that newly elected President George W. Bush had given up email, in order to avoid problems with open records laws on Presidential communications. Not surprisingly, there's now a lot of speculation concerning whether or not President-Elect Barack Obama will now have to give up email as well. In the intervening eight years, email has become much more important, and, of course, Obama is a known Blackberry fanatic.

Eight years ago we thought this was a silly turn of events, and today it seems even more ridiculous. Email is an important and useful form of communication. It seems silly not to allow Obama to use email, and it's difficult to see what the real advantage of cutting him off would be. The article mentions concerns about security, but no one is saying he should be sending nuclear codes or military training plans via email. The second concern is about the open records laws, that would potentially open up private communications to the public. Again, it seems like this can be dealt with in a variety of ways -- either by changing the law to protect certain emails, or by having Obama make it clear to any and all emailers that their emails should be considered public records. It seems like there are better solutions out there than cutting him off entirely.

Filed Under: barack obama, email, open records, president