Responding to Lessig on Transparency and Americans Elect

I had asked Larry Lessig about how he could support Americans Elect given their well known transparency problems (for example, they won’t reveal their donors based upon unsubstantiated claims of potential harassment). Larry’s explanation is here and I appreciate the care he has taken in responding.  Here’s my reply.

Larry’s says he would like transparency of donors at Americans Elect, but he is not too troubled by the lack of transparency in this instance because, given AE’s structure, he does not believe that secret money could be used to corrupt a candidate (unlike Super PAC spending benefiting a candidate) in the AE process and it won’t affect the results of the AE candidate selection process. Further, Larry argues, maybe the concern about AE harassment is a legitimate one given that this is an effort to upend the two-party duopoly which could anger some establishment types.  I’ll respond to each of these points.

1.Transparency, Corruption, and Information Shortcuts. To begin with, corruption is not the only value I see in transparency. Another value is providing valuable information to voters. In a recent California initiative, the utility Pacific Gas and Electric supported an initiative shielding the utility from competition by public utilities.  PG&E spent $43 million supporting the measure through a “Yes” committee, compared to $1 million on the No side. But the measure went down to defeat, in large part I believe because each “Yes” ad included information that PG&E supported it. Voters are busy, not stupid. Knowing PG&E backed a utility measure was all they needed to know to vote “no.”

Similarly, if it turns out (as appears to be the case) that AE is backed primarily by a handful of hedge fund managers and no small donors, voters can evaluate whether the effort might be engineered to produce a certain kind of candidate (say, a centrist candidate who will be good to the interests of hedge fund managers). Yet AE presents itself as “unencumbered by special interest and Super PAC money. We’re not influenced by the political class of consultants or guided by Washington lobbyists.” Voters should be able to fully evaluate the AE effort. This is especially true if, as alleged by the first commenter on your Tumblr post responding to me, AE is manipulating the rules: changing how candidates are presented to the public in order to promote some over others, hiding AE delegate votes so that opponents of board rules don’t see them, etc.

As to corruption, I would not be so sure.  As I explained in my first Politico piece, under AE’s bylaws the controlling  reserve the right to veto choices of voters cast through their Internet primary.  It is also not clear that their Internet primary will be free of manipulation, and there’s no secret ballot. In short, the AE board (presumably controlled by those paying the bills) have enough levers at their disposal to be able to significantly influence who the choice of the AE candidate. If that’s right the danger of corruption is as real as it is for Super PACs.

Now it may be that the AE process could get out of the Board’s control.  I’ve suggested in my second Politico piece that it could be hijacked by Stephen Colbert as a kind of performance art. In your Kindle Single One Way Forward you say “We need to Occupy Americans Elect” to get them to choose a reform candidate (presumably your ally Buddy Roemer). But just because the process might be hijacked doesn’t mean that the corruption danger is not there.  (Of course, the possibility of hijacking also means that AE could be taken over so that a candidate of the far left or far right gets chosen, who acts as a spoiler and leads to the election of a candidate who is the last choice of a majority of voters. But that’s a different problem.)

2. Affecting the Outcome.  Even if we don’t characterize the levers the AE board has to influence the candiate selection process as “corruption,” there’s no denying that those levers exist.  And if they do that’s all the more reason for voters to know who is behind the effort.  A candidate put on the ballot by thousands of small donors across the country would be viewed differently by voters (justifiably so) compared to a candidate bankrolled by a few hedge fund managers who “bought” ballot access for the candidate in advance.  It is just something we should all know before we make our decisions.

3. Harassment. The harassment issue is a canard. I’ve done a study of the recent claims of harassment in the gay marriage context (a social issue much hotter than the question of the two-party duopoly, I’d say), and the claims are incredibly weak. It is far more likely that the AE people are hiding their donors because you would see a small group of large, wealthy donors which would be less appealing to the average voter than through a mass movement. And even if some harassment were plausible, I’d suggest that your former boss has it right here: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

UPDATE: Lessig replies here, and on this note I think all the relevant points have been made.


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