Educate, Then Legislate

Researching the policy debates surrounding SOPA I came across “Dear Internet: It’s No Longer OK to Not Know How Congress Works.” Clay Johnson, its author, posted it in response to “Dear Congress: It’s No Longer OK to Not Know How the Internet Works,” which rightfully criticized members of Congress for their wilfull ignorance of fundamental aspects of Internet architecture during debates on SOPA. Johnson’s point is that “online activists, the free culture crowd, and the pro-open and free Internet crowd needs to get a clue too. See — it’s just as important for us to understand how Congress works as it is for the Congress to understand how the Internet works. In Washington, those who ‘educate’ Congress the best usually end up with the winning legislation.” As a teacher this is what most interests me, helping students understand how policy is translated into legislation and other modes of regulation. I’m not talking about the mechanics of How a Bill Becomes a Law, but understanding that law is the manifestation of policy. The topic of tomorrow’s Internet law class is “Architecture, Values, and Regulation,” introducing students to Larry Lessig’s concept that with respect to the Internet, Code is Law. (Here’s Lessig’s 2000 article by that title in Harvard Magazine; he developed the concept most fully in Code v.2.) It’s not surprising that after years of being the foremost thinker about modes of Internet regulation Lessig turned his attention to how money, lobbying, and corporate influence affects how policy becomes law.

Obstruct First, Ask Questions Later

Perplexed by the latest Washington impasse over the payroll tax cut? Wonder if the Republicans are doing anything other than saying no, just because they can? I am. And so is The Wall Street Journal editorial page, not a place I go normally for reassuring agreement with my views.  In an article titled “The GOP’s Payroll Tax Fiasco” the Journal states

The GOP leaders have somehow managed the remarkable feat of being blamed for opposing a one-year extension of a tax holiday that they are surely going to pass. This is no easy double play.  Republicans have also achieved the small miracle of letting Mr. Obama position himself as an election-year tax cutter, although he’s spent most of his Presidency promoting tax increases and he would hit the economy with one of the largest tax increases ever in 2013. This should be impossible . . . . The entire exercise is political, but Republicans have thoroughly botched the politics.

The article concludes “[a]t this stage, Republicans would do best to cut their losses and find a way to extend the payroll holiday quickly.”

Lessig on Campaign Finance

Students in all of my fall courses–Intro to Law, Internet Law, and Privacy Law–have expressed alarm about SOPA. They ask where it came from, who is pushing for it, why it has gotten so much congressional support. The long answer involves copyright owners, actors, musicians, concern over the effect of copyright piracy on U.S. jobs, consumer tolerance or support of file-sharing, the public debate about Free Culture versus the legal protections of copyright law. The short answer involves elections and money, specifically the corrosive effect of campaign contributions on the political process–which drew Larry Lessig’s attention as he pursued his post-Free Culture intellectual path.

No Leadership

A half-dozen students were in my office yesterday afternoon to talk about their exam today.  I put CNN.com on the monitor, refreshing the page every ten minutes or so.  Thus, as we discussed their exam-related questions we could also watch the unfolding consequences of the House of Representatives cratering the economic rescue bill.  The Dow down 700, then 500, then 650, then 770 . . . the failure of house leaders on both sides of the aisle to rally sufficient votes . . . the White House’s totally ineffectual pleas to pass the bill . . . the failure of Obama and McCain both to put themselves squarely in front of the bill and explain why it’s passage is important.  It was a total failure of political leadership, a verdict that is splashed across front pages and op-ed pages everywhere.