Has a Harvard Professor Mapped Out the Next Step for Occupy Wall Street?

By Alesh Houdek

Lawrence Lessig's call for state-based activism on behalf of a Constitutional Convention could provide the uprooted movement with a political project for winter

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Observers and participants alike have interpreted the Occupy Wall Street movement as expressions of frustration with persistently high unemployment and underemployment, with the appearance of growing income disparity in the United States, and with the sense that the richest among us are disproportionately responsible for the current crisis. But the fundamental problem, you could argue, is that we have simply not had meaningful financial reform in response to the crisis. The Dodd-Frank Bill that was passed last summer was better than nothing, but it did not do what needed to be done to fix the problems that caused the current crisis: We haven't punished anyone. We haven't broken up banks to prevent them from being "too big to fail" in the future. The banking system that's brought us the current crisis remains in power, barely chastened. "Why?" ask the Occupy Wall Street protesters.

Lawrence Lessig has an answer. In his new book, Republic, Lost: How Money Corrupts Congress -- and a Plan to Stop It, he spends 20 pages reviewing the the 30 years of deregulation that led up to the financial crisis and outlining our present circumstances. In fact, this book, published just before Occupy Wall Street began, is perfectly positioned to become the movement's handbook. While few protesters will need convincing that the government is corrupted by money, the book lays out the case in a such a comprehensive and persuasive manner -- and proposes such specific and radical solutions -- that it seems tailor-made for the Occupy movement. And it's ambitious proposal for state-based activism on behalf of a Constitutional Convention could provide the movement with a next organizing step as it nears its two-month anniversary Thursday -- and faces such questions as how to ride out the winter and how to respond to police crackdowns.

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Lessig, director of the Edmond J. Safra Foundation Center for Ethics at Harvard University and a professor at Harvard Law School, spent 10 years fighting to reform the nation's copyright laws. The effort produced a half-dozen books, led to the creation of the Creative Commons licensing system and a case before the Supreme Court, which ultimately failed. Rather than dissuading him, Lessig concluded four years ago that this failure perfectly situated him to take on an infinitely harder challenge -- the reform of Congress itself. The shift in focus led him to leave Stanford University and relocate his family to the east coast to teach at Harvard in 2008, where he began the research and activity that gave rise to his latest book.

His first congressional reform effort wasChange Congress, a grass-roots movement to gather pledges from elected officials to reform campaign financing, and pledges from potential donors to not give money to officials who hadn't taken such a pledge. But as that movement failed to gain sufficient momentum, he's shifted focus towards more dramatic strategies, exploring the possibility of a Constitutional Convention at the September 2011 conference and in this book.

The strategy for non-fiction books of this type is well understood: it's anecdote-plus-conclusion. A story, followed by the lesson the author wants us to learn from it. As an academic, Lessig has the research chops to find the anecdotes that best fit the narrative case he's making, and to lay them out in wonderful detail. But his real gift is in the art of stringing them together into a story. That means that this book is as persuasive as it is enjoyable to read. This is very good indeed, because if Lessig is to succeed, he'll need to persuade a great many people.

Lessig is most comfortable in the section where he describes government corruption, telling not the story of corrupt individuals, such as Rod Blagojevich and Jack Abramoff, but that of an entrenched set of incentives that skews the motivations of political actos -- the system itself. Lessig, a liberal, takes great pains to extend a hand to Republicans, and makes arguments that are direct appeals to Republican priorities. "The single most salient feature of the government that we have evolved is not that it discriminates in favor of one side and against the other," he says, "it discriminates against all sides in favor of itself." The corruption happens at the level of the institution, not the individual, he argues.

All along, we are reminded how difficult this problem will be to solve. Not only is it rooted in the deepest part of the political system, but there are a host of interests who will fight any reform. The businesses and individuals who make large contributions to government will oppose reforms because they are a threat to their power. Politicians will oppose them because they threaten the system that allows them to stay in power. And lobbyists will fight them because ultimately they threatens their entire profession. At every point, Lessig points out counter-arguments to the case he's making, explains difficulties that may not be obvious, and generally reminds us that the problem is large and solutions will be difficult.

So his focus is not so much on the solutions, but on the first step: laying down the argument for why change needs to happen. Seventy-five percent of the book is a deep examination of the problem of corruption: what corruption means (from an almost philosophical perspective); the specifics of how corruption operates in our particular system; and an analysis of how our government will continue to fail us, given the present system.

The bulk of the first part of the book consists of detailed scenarios of government activities that seem obviously to put the interests of specific parties (read: corporations) ahead of the interests of the nation at large. His telling of the lead-up and aftermath of the current financial crisis is worth the price of admission by itself. (Fun fact: credit for many of the key deregulations, including the repeal of the Glass-Steagall Act and the decision that federal agencies should not regulate the growing derivatives market, goes to the Clinton Administration.)

But consider the case of food subsidies and tariffs. These manipulations began during the Great Depression, when the cost of actual staple foods -- flower, rice, etc. -- was high enough that starvation was not unheard of. The government introduced tariffs to protect domestic farmers, and subsidies to lower the costs of food. But the system has now been in place for close to a century and political money has twisted it into shapes that have no hope of being justified by any actual utility. We place tariffs on sugar, so that sugar in the U.S. is two to three times as expensive as in other countries. And we subsidize corn production: the US government spent $73.8 billion between 1995 and 2009 subsidizing corn, driving its price close to zero. One result of these policies is that High Fructose Corn Syrup was nonexistent in 1980, but accounted for 41 percent of all sugar consumed by Americans by 2006. Another result is that cattle raised in the U.S. are now fed almost entirely corn, which they don't digest well, requiring antibiotics on a massive scale and producing poorer quality meat. And even though the subsidies account for huge outlays for the federal government and the tariffs make products more expensive for Americans (the sugar tariffs cost the overall economy an estimated $3 billion per year, while providing $1 billion of extra profits to domestic sugar producers), they've proved impossible to eliminate under the current system. Every time a politician floats the idea of reforming or eliminating the farm bill, they're reminded that a small percentage of the money the beneficiary companies make is allocated to campaign contributions, and crucial for the reelection of a large number of senators and representatives.

Again, Lessig takes great pains to point out that eliminating these influences is in the interests of both Republicans as Democrats. Reform of the tax code and the education system can't happen under the current system. The government has grown wildly under every Republican president in memory. Folks on the right want a smaller government, a simplified tax code, and efficient markets. How the current system has blocked those reforms just as much as those of the left is also explained in the book. But the point is that this effort can only succeed by finding common ground between these two groups, and finding a way for them to come together on the central issue that prevents everything else from being addressed.

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The subtitle of the book promises solutions, and in the last 50 pages it delivers. But it's complicated. To be taken seriously, a solution must be presented with a strategy for how it's going to be brought about. It must deal with the realities of a relatively disengaged electorate, an entrenched political system, and the boundaries set by Supreme Court decisions. And so what we get is actually nine pages of solution, and 41 pages of strategy.

The central part of the solution is elections funded through small-dollar contributions. Several states have systems that encourage this, which are opt-in. Candidates pledge to limit their fundraising and spending, and in return the state gives them a chunk of money to run their campaign. The broad outlines are similar to the system of public funding for presidential elections. Lessig has a slightly different proposal, known as the Grant and Franklin Project. Under this system, the first $50 of every person's tax contribution goes into a pool to be distributed to congressional candidates. Each tax payer then receives a voucher to be distributed to the candidate of their choice or split up between several candidates. (The actual proposal is more complicated -- for instance, the voucher can be accompanied by cash contributions of up to $100.) To be eligible to receive funds through the vouchers, a candidate agrees not to raise any funds outside the system. This would raise approximately $3 billion per year, or $6 billion per election cycle, which would make it competitive with the current funding system and provide candidates with a strong incentive to opt in.

The proposal addresses several of the concerns that threaten to have other solutions declared unconstitutional. It doesn't allow for anyone's money to be used to support a candidate or position they don't want to support. And it doesn't limit anyone's speech. But Lessig points out its weaknesses. It doesn't do anything about the type of spending permitted by the recent Citizens United decision, for example.

Lessig points out another problem with this, or any similar system: For every type of reform that's been tried in the past, money has continued to find a into the system. "Block large contributions from individuals, and they become soft contributions to parties. Block soft contributions to parties, they become bundled contributions coordinated through lobbyists. And on it goes," he writes.

Calls for constitutional conventions have served an important function in pushing Congress to pass reforms.

But I don't think this is intended to be the be-all end-all solution so much as a starting point for a larger discussion. And in fact, Lessig recognizes that a large-scale debate is a necessary step in reform.

There are four strategies presented for getting the necessary laws passed, but the first three are presented and dismissed as being impossible or extremely improbable. It's only when we arrive at "Strategy 4: The Convention Game" that we see what Lessig has had in mind all along. Article 5 of the United States Constitution describes how the constitution can be amended. Congress proposes amendments, and the states ratify them. This is how all the existing 27 amendments have been passed. But there's another way -- states can ask Congress to call for a constitutional convention. The convention proposes amendments instead of Congress, though they also have to be ratified by the states.

It sounds a bit like shooting for the moon: we'll get the states to call for a Constitutional Convention, which will then propose an amendment to the Constitution that'll transform how congressional elections are financed, and will then be ratified by three-quarters of the states. But it does address three important obstacles to any solution. First, it harnesses the intelligence and creativity of a great many people to a problem that Lessig himself admits he hasn't quite found the perfect solution to yet. Second, it bypasses the usual means of reform (Congress, presidential elections, etc.) which the lobbyists and other interested parties have learned so well to manipulate. And lastly, such a convention would be free to propose solutions that would otherwise be subject to be striken as unconstitutional by the Supreme Court.

Now, we haven't had a Constitutional Convention since the one that wrote the original constitution. (And never mind that since the Articles of Confederation were in effect at the time, making that one technically illegal when it happened.) But we've come close. The Seventeenth Amendment, which changed the election of Senators to be by popular vote, was proposed by Congress when 27 states had called for a convention and it seemed imminent that more were about to. In fact, there have been over 700 such calls in our history, and they've served an important function in pushing Congress to pass certain reforms.

So how do we begin a popular movement that might end with states petitioning for a convention? Lessig calls for mock conventions to happen all across the land: assemblies of regular people to think of these, and other, problems, and come up with solutions that might work. Not only would these conventions come up with a spectrum of solutions which could be evaluated and selected from, but they'd build national support for the idea that a convention like this could work.

It sounds unlikely to happen. But this is where Occupy Wall Street comes in. Properly leveraging its support, it could generate enough energy to do what Lessig, while writing this book, couldn't quite picture. In fact, the original call for Occupy Wall Street, from Adbusters, called on president Obama to "ordain a Presidential Commission tasked with ending the influence money has over our representatives in Washington." Already, "The 99 Percent Declaration" is calling for "a NATIONAL GENERAL ASSEMBLY beginning on July 4, 2012 in the City Of Philadelphia" to address the influence of money in politics and other issues.

Properly presented, the strategies and aims of Lessig's book could make it the handbook the protesters have been looking for -- and provide a pathway for them to ride out the winter ahead.

Image credit: REUTERS/Jonathan Ernst

This article available online at:

http://www.theatlantic.com/politics/archive/2011/11/has-a-harvard-professor-mapped-out-the-next-step-for-occupy-wall-street/247561/