What Larry Doesn’t Get
posted by Frank Pasquale
Legal legend Larry Lessig has recently decided to refocus his energies from intellectual property activism to a broader fight against the corruption of the political process. As he explained to readers of the Lessig Blog:
In the US, listening to money is the only way to secure reelection. And so an economy of influence bends public policy away from sense, always to dollars. . . . .I’m convinced we will not solve the IP related issues until these “corruption” related issues are resolved. So I hope at least some of you will follow [me] to this new set of questions.
While I agree with many of Lessig’s policy goals in the IP arena, I am troubled by this turn from substance to process. To put it bluntly: I doubt anyone can squeeze money out of the political process (or even substantially limit its role) given the Supreme Court we have and our undemocratic constitution. So what’s the answer for those who feel certain laws are unjust, inefficient, or corrupted?
I have no easy answers here. But I think a story today in the NYT hints at the direction change must take. Consider the upcoming struggle over SCHIP reauthorization between Democrats and many Republican governors (who want more federal funding for covering children’s health care), and the White House (which believes such funding will just lead state(-subsidized) insurance to crowd out private plans). Despite the fact that “Bush administration officials recently advised drug company executives not to support a major expansion of the program,”
The Pharmaceutical Research and Manufacturers of America, a trade group, has been running television and newspaper advertisements that praise the program and urge Congress to renew it. The television advertisements show children cavorting on a playground and singing a jingle, “If you’re healthy and you know it, clap your hands.” The drug industry has joined four organizations in a coalition to whip up support for the program. The coalition, Americans for Children’s Health, was incorporated last month and has a budget of several million dollars, mostly for advertising. Directors include lobbyists from the American Health Care Association, which represents nursing homes; the American Medical Association; Families USA, a liberal-leaning nonprofit consumer group; and the Federation of American Hospitals, which represents for-profit hospitals.
Would advocates of children’s health care be better off trying to guarantee a “level playing field” before engaging in this battle? I doubt it.
I think the types of reforms Lessig is after would try to equalize the relative influence of all citizens. But even the most optimistic of these plans prescribes a type of public funding that can easily be swamped by corporate treasuries. In that kind of world, doesn’t it make sense to try to build some sort of corporate coalition behind needed reform, rather than engage in the Quixotic task of a Common Cause to equalize relative influence? One need only to listen to a podcast like this to realize that a reform as unobjectionable as the fairness doctrine is probably unachievable in today’s world.
Whenever the subject of corruption and reform comes up, the realism of a Schumpeter or Schattschneider has to be reckoned with. As the latter wrote in The Semisovereign People, any political struggle in the U.S. is like an open-ended bar-room fight, with each side continually trying to enlist others in its cause in order to overpower its enemy. The hope of some detached, deliberative process designed to produce an “ideal speech situation” may have some purchase in European social democracies, but strikes me as utopian in the free-wheeling American public sphere.
July 9, 2007 at 1:38 pm
Posted in: First Amendment, Intellectual Property, Politics
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Responses (4)
Seth Finkelstein - July 9, 2007 at 3:43 pm
“In that kind of world, doesn’t it make sense to try to build some sort of corporate coalition behind needed reform …”
But what if the goal is intrinsically anti-corporate?
That is, I understand what you’re saying, but isn’t it sort of begging the question? If the only things that can be done is what corporations want, saying try to get a corporation to want what you want, won’t ever work if you want something that’s contradictory to the corporate ethos.
Helath Care is the poster-child here – almost by definition, you can’t get a corporate coalition for good health care, because the monetary incentives are not to treat sick people.
This is all of course the old “Work within the system – or not” argument.
Frank - July 9, 2007 at 3:57 pm
I take your points . . . but having worked at a firm that lobbied for Medicare coverage of certain procedures and devices, I am confident that there can be very good monetary incentives for providers to treat sick people.
Perhaps health care may be a very different kettle of fish than IP…where, for various reasons, perhaps there is very little natural corporate constituency for free culture.
On the other hand, consider an article like this, showing that a big telco can see the wisdom of a proposal like Terry Fisher’s book Promises to Keep:
http://writ.news.findlaw.com/commentary/20020530_chander.html
As Chander writes,
“Verizon’s [compulsory license] proposal demonstrates that there are corporate interests that are harmed by ever-stronger intellectual property rights. While many rightly observe that too little intellectual property protection would discourage innovation, it is equally true that too-strong intellectual property rights add friction to the working of the economy, taxing businesses, both old and new, and dampening the possibility of innovation.”
So yes, you’re not going to find any socialist corporations out there. But there are ways of getting some powerful players on one’s side in particular fights.
Compare that to the kind of reform Lessig is talking about–which I think is the type of thing that all those big players will (successfully) rally against.
Seth Finkelstein - July 9, 2007 at 5:15 pm
See the key word there: ” lobbied for Medicare coverage …”
But doesn’t that start getting into playing a pork and patronage game?
Actually, there is a corporate constituency for free culture to some extent – e.g. Google. And the adverse inferences from that were clearly upsetting to Lessig.
I think that as a tenured professor, he’s in a pretty good position to engage in a little non-market activism.
Bruce Boyden - July 9, 2007 at 7:05 pm
For some reason, this whole discussion reminds me of the stoning scene from the Life of Brian:
Official: I’m warning you. If you say “Jehovah” once more …
(He gasps at his error and claps his hand over his mouth. A stone hits him on the side of the head.)
Right! Who threw that?
Women: (high voices)
It was her.
It was *him*.
(low voices)
It was him.
Official: Was it you?
Culprit: Yes.
Official: All right.
Culprit: Well, you did say “Jehovah.”
(The women all shriek and throw stones at her from very close range.)
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