Liberty, Prudence, Imperfection, and Law

“Lawrence Lessig Wants to Be Your President (?!),” By Bruce Frohnen

“Lawrence Lessig and Jimmy Wales, June 15, 2007” by Joi Ito from Inbamura, Japan. Licensed under CC BY 2.0 via Wikimedia Commons.

Ours would be a better political culture if it were surprising that a professor from an elite law school is running for president because Bernie Sanders is not sufficiently “progressive.” Alas, ours is precisely the kind of culture in which Lawrence Lessig of Harvard Law School has announced formation of an exploratory committee for a presidential run. It is the political culture in which Mr. Lessig’s first high-profile supporter is James (“Jimmy” or even “Jimbo”) Wales. Mr. Wales, if you do not recall, is the founder of Wikipedia. Wikipedia, if you have not been paying attention to the actual source of all those free if unreliable internet articles, is a bastion of draconian social justice rules and leftwing favoritism, all enforced behind the scenes to maintain an unremitting but amateurish leftism currently in high regard among high-tech moguls. As to those high-tech moguls, if you have missed the numerous exposés of recent months, they are the ones shipping blue-collar jobs overseas, importing high-tech workers from overseas to dampen domestic pay rates, spying on you whenever and however they can, and patting themselves on the back because they recycle and vote for big “green” government programs.

Mr. Lessig is convinced that America needs him. Well, perhaps not him exactly. Mr. Lessig is sufficiently well indoctrinated to make the usual obeisance to his unworthiness as “yet another middle-aged white guy.” But he is convinced that America needs his one Big Idea. That idea? Citizen Equality. This buzzword does not stand merely for the usual program of government action to force us all to be more equal, more supportive of preapproved causes, and more obedient to our bureaucratic betters. Bernie Sanders would at least try to get us that far on the road to socialism’s earthly paradise. Citizen Equality is something more. It is more demanding and more dangerous, for it prioritizes as The Essential Reform government control of the electoral process.

As he attempts to crowdsource funding for his campaign, Mr. Lessig insists that his would be a one-issue presidency, encompassing passage of his Citizen Equality Act and ending with a swift resignation and the transfer of power to his (presumably better qualified) vice president. We have heard such noises before, of course. Even shock-jock Howard Stern chose to run for governor of New York on a single issue—the death penalty—insisting that he would resign as soon as the electric chair got warmed up again. Mr. Lessig’s candidacy will be little different from Mr. Stern’s in its essentially irrelevant theatricality, though one hopes his campaign will focus less on the contributions of adult film industry representatives.

Many observers have simply laughed at Mr. Lessig’s arrogance, one suggesting he take his crowdsourced funds to pay for a political science course for himself. Nevertheless, it is worth examining the elements of Mr. Lessig’s Citizen Equality Act for what it tells us about the ideology ruling on campus today. This Citizen Equality Act would provide for automatic voter registration, yet more redrawing of political districts, and a one-per-citizen campaign funding voucher (i.e., call on taxpayers’ money) for future congressional and presidential election campaigns.

First, to practical issues: We all know what open voter registration means. It means massive vote fraud. It also means, of course, that people who cannot be bothered to pay attention to the electoral process more than five minutes before the polls open are to be essentially rounded up and ferried there so that they may share the results of their apathy and ignorance with us via their chosen elected officials. Then there is the latest redistricting fad. Here Mr. Lessig is demanding more power for people like himself to maximize representation of his favored groups, ignoring historically grounded communities and interests. We all are monads, atoms in the vast molecule of the state, in this view. Our connections matter not at all. All that matters is equality, along with those categories (race especially) deemed relevant by those who, well, claim to be working to make race less important in politics. Finally, there is “campaign finance reform,” which to anyone paying attention means socialized election campaigning. Here, in order to get “big money” out of politics, Mr. Lessig wants the biggest set of pockets in the country, which also happens to be the biggest holder of weapons and of lawyers willing to use them, to take charge of doling out the campaign money and determining how it is to be spent. Oh, our equal citizens will have a “choice” in using their “vouchers” to give what the government tells them they can to “their” candidate. But the reins of power will be held yet more firmly by those trustworthy types like Lois Lerner at the IRS, who we all know are strictly nonpartisan.

The practical flaws in Mr. Lessig’s “reform” are obvious enough. More often overlooked are his fundamental misunderstandings of politics, human nature, and the limited nature of the political good. To begin, the notion that it is somehow “unequal” and unfair to require people to put forward some kind of effort to vote is disingenuous nonsense. These claims seek to keep alive a generalized fear of literacy tests conducted by racists with the intent of keeping out people who can read but have the wrong skin color. But such concerns are not relevant, here, because current requirements concern only minimal antifraud measures intended to reserve the vote for those who are eligible, living citizens. As to Mr. Lessig’s affirmative gerrymandering to make us all “more equal,” this concern is rooted in the old canard about trees not deserving to vote. Old district lines used to move slowly, such that districts that remained rural would not lose seats quickly to growing urban centers. Of course, people in the urban centers want to increase their power as quickly as possible. But there is no reason of intrinsic justice why districts should change, rather than represent rural or suburban interests. When people have been in a new area long enough, they can demand greater representation. As it is, most gerrymandering is done to comply with various court rulings in a manner that pleases the political party in power. And anyone who thinks any kind of administrative body will be truly nonpartisan in its “reform” determinations is being naïve, dishonest, or both. The most charitable reading would be that these reformers have so bought into their own vision of who is underrepresented and why that they think their chosen formula is the only just one available, with all others the product of bad motives.

The notion that we should trust a government bureaucracy to run campaign finance, or the irredeemably biased and shallow media to give us the information we need to make informed decisions (with yet more regulation to encourage “fairness,” no doubt) is silly. Such a program would merely empower a new bureau to reorganize our political life according to yet another fantasy about what is fair.

Finally, then, the crux of the problem with Mr. Lessig’s crusade: the idea that we all want, or at least should want, to define ourselves as Equal Citizens. Highly popular among those who cannot fathom why their brilliant ideas consistently fail to garner electoral success, the drive to “fix” electoral machinery rarely produces its proponents’ desired results. People for the most part want to be left alone. They also want decent jobs and would like to have many material things. It was by promising these material things that Mr. Lessig’s favored politicians got us into our current mess of mass dependence on a failing government infrastructure. But people do not primarily identify themselves as political animals. We are social animals, primarily, leading lives within families, churches, and local communities, occupied with work, play, and (sometimes) worship. The desire to make politics central to people’s lives constitutes a veritable road to perdition. It would tear us further away from our natural attachments, seeking to bind us together with political ideologies that demonize those who think differently, or make too much money, or worship in a manner we find illogical, or, heaven forbid, seek to lead moral lives in defiance of our claims to absolute equality. Violence and repression are the natural results.

Mr. Lessig touts his campaign as one for a “referendum president.” The paradigm encompasses the problem. Referenda were sold to Americans as a rebirth of democracy in the face of entrenched political forces. They actually work in some few places (Switzerland comes to mind). In America they have a decidedly mixed record, with the entire state of California consistently courting bankruptcy like a third-world basket case in part because most of its budget is literally dictated by various referenda requiring funding for “good things.” But the problem with the referendum is more fundamental in a nation such as ours. The referendum can be a way for the citizens to go around political machines to enact important reforms. But in a mass society such as ours the referendum becomes the plebiscite—the faux election called by a dictator demanding a “yes” or “no” to his grand program. As with socialized electoral processes, the plebiscite makes the people the tool of their own oppressors. Far better, especially in a large country, to leave as much as possible of public life out of the political process altogether, and leave it to less potentially coercive mechanisms of social association by which people can regulate their own lives—even if our progressive betters may not like the results.

 

Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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