Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Cato at Liberty


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
February 1, 2010 2:15PM

Lawrence Lessig, Libertarian

By Richard A. Epstein

SHARE

This past week Professor Lawrence Lessig of the Harvard Law School dropped into the Cato Institute to give his stump speech on his new passion: the corruption in government. There is no question that he has picked a subject large enough to test his own ambitions, for the ever expanding size of government opens up new avenues for political intrigue that leave the defenders of small government like myself in tears, no matter which party is in power.


Lessig and I, it seems, share a common bond on the identification of the disease. But his presentation to the Cato Institute did not reflect the chasm on the question of remedy. Lessig is a one‐​dimensional man. Once he thinks that public funding of elections is the cure for the political disease, he mounts his crusade. I am an academic, not a public crusader. And I don’t much appreciate being enlisted without my knowledge in a campaign not entirely to my liking.


So by way of penance, I think that Lessig should enlist himself in my academic cause. I hope that in the spirit of internet openness he will post on his web site my take on his venture. He could start by adding a third caption to the (unauthorized) use of my picture: After putting the words, Public Funding, he should make the new slide “Public Funding Skeptic”—which best captures the flow of our discussion. In the course of that exchange, I identified what I thought was the cause of the current malaise.

Media Name: epstein_public-funding1.jpg

At various times, I extolled the virtues of Lochner v. New York, and championed a narrow reading of the commerce power. I passionately defended the use of term limits—10 in the house and four in the senate—that were short enough to have some bite, but long enough to allow for continuity in government. I attacked the built‐​in incumbent bias to modern elections. I went out of my way to denounce the limitations on campaign funding contained in the McCain/​Feingold Act, which just got beat up in the Supreme Court’s recent decision in Citizens United v. Federal Election Commission, just as I hoped it would do in my prior Forbes​.com column. I insisted that limitations on campaign finance could intensify the lobbying on particular issues. Truth be known, he was doing all the back‐​pedaling, not me.


You can be the judge: just listen to our discussion to see if it lines up with the mock‐​heroic account of his own intellectual derring‐​do he gave to his Cato audience, two of whom emailed me to ask, what gives:

Richard Epstein … at the end of this debate was willing to concede that in his view the only solution he saw—or one solution, he also wants term limits—but one solution to this economy of influence, this economy of corruption, was, as he described it, public funding.

Media Name: epstein_richard_skeptic.jpg

Note how much error Lessig can pack into a single sentence. It wasn’t a debate. I didn’t “concede” a thing, least of all to him. I didn’t “also want” term limits. I was gung ho for them. I didn’t particularly support public funding initiatives. I didn’t oppose them in small elections, even though I thought they were likely to fail.


Next note the omissions. Lessig never mentions that most of my remarks were devoted to explaining why efforts to stop political action won’t do much good unless and until the rules of the game are so altered so that politicians have little to sell or little to threaten. So in a spirit of generous reciprocation, I hereby announce that Lessig has “conceded” the soundness of all my attacks on the New Deal and thus count him as a principled ally in the fight for structural reform that returns us to the original constitutional design. Then think just how much harder that task has become. If the self‐​appointed champion in the war against corruption can’t be counted on to give an accurate account of a recorded dialogue in which he took part, what chance do the rest of us mere mortals have to put an end to political corruption?

Related Tags
Government and Politics, Technology and Privacy

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave. NW
Washington, DC 20001-5403
202-842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
  • Podcasts

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org