January 29, 2010 4:14PM

Larry Lessig and the Lunching Libertarians

Outside the realm of copyright, Cato folk (and libertarians generally) don't often see eye-to-eye with left-leaning cyberlawyer and Harvard prof Lawrence Lessig. Nevertheless, I wasn't too surprised when Lessig signaled his interest in opening a dialogue with Cato scholars about his Change Congress project and his research on political corruption. After all, we've long argued that an expansive state will inevitably attract moneyed interests eager to feed at the public trough or co-opt well-intentioned regulation to stifle competitors. And as Lessig argues, legislators may come to see growing government as a means of creating supportive constituencies.

He's posted the presentation he gave to a group of us at a luncheon discussion earlier this week, which I think makes an interesting case:

As he writes over at the Huffington Post, we see many of the same structural problems, though we differ as to the solutions.  Lessig has been critical of the legal reasoning behind the recent Citizens United decision, which we at Cato welcomed. Despite this, we were pleasantly surprised to hear Lessig aver that he is not interested in overturning the decision—that he prefers, rather, to find ways of reducing the political influence of special interest money without restricting speech. Lessig's favored solution is public financing of elections, whereas I think the majority here at Cato share the skepticism of my colleague John Samples about the viability of that kind of reform.

Part of what explains the difference may be that, while we agree in very broad terms that there is a problem of policy capture, Lessig focuses above all on the influence of campaign contributions, which political scientists have not generally found to be the prime culprit. Here I'm inclined to agree with remarks by my friends Ezra Klein and Matt Yglesias, who saw the same presentation later that same day with a mixed liberal/libertarian group. Money is a symptom: The core public choice problem is a function of the informational and incentive asymmetries created by policies that concentrate benefits and diffuse costs.  While that fundamental fact remains, if I may paraphrase John Gilmore, money will interpret regulation as damage and route around.

Look at it this way: We don't get draconian copyright policies because the RIAA and MPAA actually have more money, all told, than those of us who'd benefit from a more balanced intellectual property regime.  They're richer, of course, but there's a lot more of us. The problem is that their resources are already pooled, and they're far more acutely aware of which side their bread is buttered on. That's the asymmetry we need to address. And as Clay Shirky has so cogently argued, we may finally have the means to do so, because for the first time in human history, we have in the Internet (and Web 2.0 especially) a mass medium that is simultaneously good at enabling interactive conversations (as the telephone does) and groups (as magazines or television did).  The costs of processing and disseminating information have fallen dramatically over the past decade, and now the same is happening to the costs of organizing people and coordinating action.

That's why I think Lessig's focus on public finance as a silver bullet is less likely to bear fruit than an array of solutions that exploit transformative technology—something he's so keenly analyzed in his writing on Free Culture. My colleague Jim Harper's Washington Watch project, or the efforts of the folks at the Sunlight Foundation, are one part of the solution: Backroom deals are typically held in the back room for a reason. Sites like ActBlue and Slatecard are another, because they make it easier for a national audience to punish bad actors in their local races.  Note that it's only in the last four or five years that "primary" has become a transitive verb, as in "The Netroots primaried Joe Lieberman." What might we do with a transpartisan cloud of activists committed to targeting the most egregious policy vendors on both sides of the aisle? What disciplinary effect might the loss of a few "safe" seats have on the rest of Congress?

At the same time, I expect the Internet to gradually undermine the central importance of television ads, which have done so much to drive up the cost of modern campaigns. It's not just that audiences fragment as video programming moves online and the outsized importance of the broadcast networks drops off. Rather, it's that paid ads themselves matter less as more sources of information open up. Ten years ago, I might give a restaurant or other business a shot on the basis of an appealing advertisement, but in 2010? Even if the ad gets my attention, I'm going to go check Yelp and see what actual customers have to say.

Lessig is eager to channel just this kind of networked engagement, but he appears to see it primarily as a means to get his preferred process reforms implemented.  I think the more promising approach is going to ultimately be to cut out the middleman entirely: Don't organize online to regulate the money out of politics; organize in ways that make money less relevant, and that raise the electoral costs of trading outcomes for campaign cash.

That aside, I thought we had a productive conversation, and I'm glad that in these polarized times it's still possible to engage constructively with people despite substantial differences.  For those interested in a short primer in the problems of public choice, Lessig's presentation is well worth a viewing.  And for further reading, I'll humbly recommend this fine survey we published in our journal Regulation, and Gordon Tullock's wonderful and concise primer Government Failure.