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I think the fundamental problem in American politics is the corruption of our political system. It's a corruption that makes it impossible for the Left to get what the Left wants and the Right to get what the Right wants. -- Lawrence Lessig to Cenk Uygur at the ConConCon

Left and Right alike have proposals that poll well, but never make it through Congress: taxing the rich and a public option for health care on the Left, a balanced budget amendment and (in some polls) harsher immigration policies on the Right. The grass roots on both sides object to corporate personhood (79% in one survey) and were appalled when their government responded to the 2008 financial collapse by dishing out money to the same bankers who had screwed things up.

Originally designed to be the People's voice, Congress has become a bottleneck controlled by special interests. Consequently, Left/Right political competition has only a limited amount of meaning. No matter how many seats either party wins, we won't see single-payer healthcare (Left) or a flat tax (Right).

Our democracy is broken.

On the other hand, some ideas with little-to-no public support get through Congress easily. Lessig's favorite example is the Sonny Bono Copyright Act of 1998, which extended the life of copyrights issued since 1923 -- keeping valuable characters like Mickey Mouse and Superman out of the public domain. Copyright is a temporary monopoly that the government grants to encourage creativity, but extending the copyright of works that already exist serves no public purpose whatsoever. ("No matter what the US Congress does with current law," Lessig observes, "George Gershwin is not going to produce anything more.") The extension, amounted to a gift from Congress to Disney and Time Warner, who lobbied for it like 10-year-olds in December.

So who gets what they want out of Congress? Lessig calls them "the Funders" -- the entities that finance political campaigns. And how can the People change the system to regain control of their government? By getting Congress to pass new laws or Constitutional amendments?

Good luck with that.

That's the origin of this idea: Without minimizing the significance of their philosophical differences, can grass roots from the Left and Right come together in a campaign to make democracy meaningful again?

Tea Party? Lessig's Rootstrikers organization explored this idea by getting together with Mark Meckler's right-wing Tea Party Patriots to co-sponsor a discussion of a way to end-run Congress and fix the system another way: via a constitutional convention called by the States. Hence the Conference on the Constitutional Convention held in late September at Harvard Law School. (I "attended" via the live feed on the Web. I had hoped video of the sessions would be posted by now, but they aren't. Consequently, all quotes are from memory or my hastily scribbled notes.)

I find that whenever I mention this co-sponsorship, people jump to the conclusion that the goal must be to generate some kind of homogenized, centrist agenda. To explain, I came up with this metaphor: Imagine two swordsmen dueling over a great prize. While they swashbuckle their way around the arena, focused on each other, somebody else walks past them, calmly stuffs the prize into a sack, and walks out.

The duel is real, but it becomes pointless if the swordsmen can't ally to protect the prize.

The Civics of Article V. The possibility of a constitutional convention is embedded in the Constitution itself.

on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments

Once proposed by the convention, amendments would follow the same ratification path as constitutional amendments approved by Congress: They'd have to be ratified by 3/4ths of the states -- 38 of the current 50. So any 13 states could block any of the convention's amendments.

Because this would be an orderly process authorized by the current Constitution, speakers began referring to it as an "Article V convention" rather than a general constitutional convention that could spring from nowhere and make up its own rules. (The hallowed convention that produced our current constitution was unauthorized by the Articles of Confederation that it replaced. In particular, the Articles said that any change had to be approved by all 13 states. But the new constitution wrote its own rules and said it would go into effect if only 9 states ratified it.)

Article V is about as vague as the rest of the Constitution. But since no such convention has ever been called, Article V has two centuries of rust on it rather than the reams of precedent and case law that interprets most constitutional provisions. So there are a lot of open questions, which the ConConCon's legal panel spelled out:

  • How do 2/3rds of the states "apply" for a convention? Every now and then, some legislature passes a call for a convention to consider such-and-such an amendment. If you total all those up, we've already had calls from more than 2/3rds of the states. But the general opinion is that the state's applications have to be similar in some way; they have to be calling for the same convention, not just a convention. How similar do they need to be? Lessig proposes that states pass similar wordings that call for a convention in general, and then (in a second clause) urge the convention to consider the particular amendments popular in that state.
  • What if Congress ignores the applications? A lot of the Constitution assumes that people will act in good faith, and doesn't specify what happens if they don't. For example, the 12th Amendment specifies that (in the presence of Congress) the President of the Senate counts the votes of the Electoral College -- the final step in electing a president. What if Senate President counts the votes wrong and declares himself president? All Hell breaks loose, I think.
    Similarly, what if Congress looks at the States' applications for a constitutional convention and says, "Not gonna happen"? Or calls a convention under rules that make it unworkable? It's not clear that anything other than public furor keeps Congress in line.
  • How do the conventioneers get chosen? Maybe that's defined in Congress' call. If not, nobody knows.
  • What if the convention breaks the rules set out in Congress' call? Again, we've got a good-faith issue. Probably nothing happens; if 3/4ths of the states go ahead and ratify the amendments anyway, they become part of the Constitution.

Runaway conventions. The big question everybody asks is: What if a "runaway" convention goes wild and designs some whole new country for us? What it declares a socialist republic or a Christian theocracy or something?

The simple answer is that 13 states refuse to ratify it and the whole plan goes into the dustbin of history. There are at least 13 blue states and 13 red states, so nothing could pass without bipartisan support.

This only gets tricky if the convention does what the original convention did: writes new ratification rules for itself. (Example: What if the new constitution says it will be ratified by majority vote in a national referendum?) Then you get into the fuzzier question of legitimacy: At some point the country just ignores the process and the old government continues.

What a convention could do. The consensus of the legal panel was that constitutional amendments should be about the mechanics of government, and that more specific proposals (like Prohibition) are better left to legislation that can be easily repealed if it doesn't work.

But the Supreme Court has boxed us into a situation where the corruption of our system can't be rooted out without constitutional changes. So we should be looking for structural changes that make legislative change possible.

In particular, Lessig wants public funding of campaigns, through a voucher system similar to the one Ackerman and Ayres proposed in Voting With Dollars.

Fear of democracy. Lessig argues that the fear of a runaway convention results from an underlying fear of democracy and fear of each other, which the Powers That Be encourage and profit from. This is backwards, he argues: The Powers That Be (and not our fellow citizens) have proven that they're not to be trusted.

We are used to a managed democracy, where the People only choose after the options have been very tightly scripted. (As Cake put it: "Some people drink Pepsi, some people drink Coke. The wacky morning DJ says democracy's a joke.") A constitutional convention would be deliberative, not managed. The conventioneers would have real responsibility, and a chance to shape the questions rather than choose from a prepared list of answers.

Lessig has faith in the deliberative powers of ordinary people, and supports Sandy Levinson's idea that the best way to choose conventioneers would be randomly, as juries are chosen. (The one jury I've served on supports his case; we rose to the occasion and did a good job.)

You got a better idea? Even Lessig is not wild about a ConCon. He's been driven to it by the failure of everything else. Would it work? Or would it be taken over the same forces that distort the rest of our political system? Would it all come to nothing or produce some crisis of legitimacy?

He doesn't know. But he doesn't think we can keep doing what we're doing.

Lessig's keynote address was one of the most inspiring speeches I've ever seen. Unfortunately, the most inspiring part was in the question session, which that link doesn't include. I'll try to fill in from my notes and from a similar talk elsewhere.

This is how he answered the will-this-work question. First, he admitted that it probably wouldn't. But then he asked:

If a doctor told you that your child had terminal brain cancer and there was nothing you could do, would you really do nothing? Just look at the doctor and say OK?

No you wouldn't do nothing, because that's what it means to love: to have the willingness to act compassionately for something, even if it seems impossible.

I am acting on the faith that all over America there are people who have this kind of love of country.

It is very rare to hear a liberal grab hold of the patriotism theme like this, and to attach it to having the courage to trust each other rather than the vicarious "courage" to send soldiers into somebody else's country. I got shivers. It's a powerful emotional argument.

But it also makes sense. If we can't trust each other, then we can't be a democracy. Where does that kind of thinking lead?

Originally posted to Pericles on Mon Oct 03, 2011 at 11:58 AM PDT.

Also republished by Community Spotlight.

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Comment Preferences

  •  I propose coming up with an amendment (4+ / 0-)

    To update Article V.  One update I would like to see would be to make ballot initiative a method of ratifying an amendment.  I belief this would create bipartisan support for structural reform because social conservatives would see it as their last best hope for restricting abortion and gay marriage.  

  •  There are no ammendments (4+ / 0-)

    that could be proposed, that stand any chance of passing.

    If there were, they would likely be the ones we would hate the most, because the Right is capable of uniting behind a simple, and simplistic message, and the Left is not.

    The answer to SCOTUS decisions that fly in the face of logic is not to change the Constitution, but to change the SCOTUS and re-legislate.

    That will only happen under a Democratic President, hopefully with the backing of a Democratic Senate.

    The other route won't happen, and if it does, we won't like it.

    I hope that the quality of debate will improve,
    but I fear we will remain Democrats.

    by twigg on Mon Oct 03, 2011 at 03:13:58 PM PDT

    •  I don't know (6+ / 0-)

      It would take both sides being willing to gore sacred cows - and you'd want to start with something like "let's get the money out of Politics" and not be concerned about the fact that you're depriving say... organized labor of the same ability to influence elections as you do the Disneys/Time Warners/etc.

      Personally - despite the fact that I am a union backer - I would be willing to shut labor out of political fundraising and funding if it ALSO meant that I could shut corporate America out of it.

      I just don't know if there are enough people on both sides who would make that trade.  

      Full Disclosure: I am an unpaid shill for every paranoid delusion that lurks under your bed - but more than willing to cash any checks sent my way

      by zonk on Mon Oct 03, 2011 at 07:02:20 PM PDT

      [ Parent ]

      •  There's the problem (2+ / 0-)
        Recommended by:
        palantir, radical simplicity
        and you'd want to start with something like "let's get the money out of Politics"

        The sacred cow of the Right ... "Campaign Finance Reform".

        It's what would return America to a Democracy, so it's the last thing the Red States would ever be allowed to agree to.

        And I'm not confident that the Blue States would support it either.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        by twigg on Mon Oct 03, 2011 at 07:16:50 PM PDT

        [ Parent ]

    •  End Corporate Personhood could pass (3+ / 0-)
      Recommended by:
      twigg, Sychotic1, TheOpinionGuy

      The diarist quotes 79% of citizens are against it and the link he provides has lots of other interesting data.

      Eliminate lobbyists is another that could pass.

      I've talked with a lot of tea baggers and libertarians and others on the far right and I agree with the diarist that there are many things we could agree on if we focused on the prize rather than our R & D sword fight.

      The solution you propose hasn't worked.  What did the Democrats do when they had a majority of both houses of Congress and the presidency that was so great?  Squat.  They waited until the R's controlled the Senate before even starting to act like they were trying to get anything done.

      We kidnap. We torture. It's our policy. Embrace it or end it!

      by Mosquito Pilot on Tue Oct 04, 2011 at 04:21:00 AM PDT

      [ Parent ]

      •  Neither of those things could pass (0+ / 0-)

        The people may indeed be in favour .... they are in favour of lots of things, none of which are being allowed through Congress.

        Why does anyone think that the corporate interests would let them pas a Constitutional Convention?

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        by twigg on Tue Oct 04, 2011 at 04:45:47 AM PDT

        [ Parent ]

        •  Your solution is to never even try? (0+ / 0-)

          No the corporate interests will not like it, they will do what they can to oppose it.  Of course they will, but that is a reason TO fight, not a reason NOT TO.

          If ye love wealth better than liberty, the tranquility of servitude better than the animated contest of freedom — go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that you were our countrymen!

          Sam Adams

          This looks like an inflection point to me.  Lead, follow, or get out of the way.

          We kidnap. We torture. It's our policy. Embrace it or end it!

          by Mosquito Pilot on Tue Oct 04, 2011 at 05:04:09 AM PDT

          [ Parent ]

      •  ps (0+ / 0-)

        It's worth noting that the States haven't even ratified the Equal Rights Amendment.

        I wonder what proportion of the population are in favour of that?

        The real danger is that, in return for a couple of minor concessions the Right would insist on major Amendments being passed that really roll back the Bill of Rights.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        by twigg on Tue Oct 04, 2011 at 04:48:52 AM PDT

        [ Parent ]

        •  What is the "right" or "left" (0+ / 0-)

          side of "End Corporate Personhood" or "Eliminate Lobbyists"?

          We kidnap. We torture. It's our policy. Embrace it or end it!

          by Mosquito Pilot on Tue Oct 04, 2011 at 05:05:30 AM PDT

          [ Parent ]

          •  Well now (0+ / 0-)

            I suggest you look to see where the opposition to reforms such as that is coming from ... and which candidates they support in elections.

            I hope that the quality of debate will improve,
            but I fear we will remain Democrats.

            by twigg on Tue Oct 04, 2011 at 06:38:15 AM PDT

            [ Parent ]

            •  The opposition to those reforms (0+ / 0-)

              comes from corporations.  They pay for candidates in both parties.

              These are perhaps the clearest examples that our democracy no longer works for the people, but is in the employ of corporations.


              Occupy Houston starts Oct 6.

              Get engaged. "They" want you to just give up.

              We kidnap. We torture. It's our policy. Embrace it or end it!

              by Mosquito Pilot on Tue Oct 04, 2011 at 12:01:49 PM PDT

              [ Parent ]

  •  Who knows if this is a good idea (7+ / 0-)

    Clearly, the Roberts Court has screwed up the constitution big time;  I think that for Citizens United alone, the clowns on the court deserve a Golden Taney Award®, since they got the issue about as wrong as Taney got slavery in Dred-Scott.

    I don't think it's simply fear of democracy, though, that scares people about a constitutional convention.  I think that the rich and powerful could game a con-con as well as they game everything else, and Lir knows what we'd end up with.

    You can't govern if you can't tell the country where you are taking it. The plot of Obama's presidency has been harder to follow than "Inception." -- F. Rich

    by mbayrob on Mon Oct 03, 2011 at 07:38:04 PM PDT

  •  my jury experienced has confirmed one thing (3+ / 0-)
    Recommended by:
    gmoke, glitterscale, blueoldlady

    and that is our justice system favors the rich and guilty over the poor and innocent.  I saw firsthand the stark differences between white shoe attorneys and their dazzling 'experts' and public defenders and prosecutors.  Sharing this realization has kept me off selected juries ever since.

    So by extension I would fear the idiocracy that would suffuse a Constitutional Convention.  I have no problem with the Constitution- the problem is the conservative court that interprets it.

    An investment in knowledge pays the best interest. -Benjamin Franklin

    by martinjedlicka on Mon Oct 03, 2011 at 08:05:51 PM PDT

  •  Lessig's Keynote (1+ / 0-)
    Recommended by:

    That was a great presentation that laid out the ideas well.   My report from the ConConCon is up at

    Sorta kinda think that the Occupy movement is the education in civics we're gonna get before or instead of a Constitutional Convention.

    Solar is civil defense. Video of my small scale solar experiments at solarray.

    by gmoke on Mon Oct 03, 2011 at 09:30:31 PM PDT

  •  The netroots won't find common ground (0+ / 0-)

    until after the election.  Both sides are fighting over Obama and that is monopolizing their time.  One side is going to claim victory and vindication.  The other will be in a very bad mood.  Until then the netroots are pointless.

  •  Thank you (1+ / 0-)
    Recommended by:

    I had been opposed to calling for a Constitutional Convention for fear of it running out of control.  But control is an illusion that is only giving us a slow walk to hell.  

    The analogy of the sword fighters is apt.  While the theatre of R & D goes on, the corporatists rob us blind.

    We kidnap. We torture. It's our policy. Embrace it or end it!

    by Mosquito Pilot on Tue Oct 04, 2011 at 04:11:19 AM PDT

  •  Systemic flaws (1+ / 0-)
    Recommended by:

    I do not have to live under the US constitution, so my ideas of what is wrong with the design of the existing constitution may be more objective.

    It seems to me that the executive branch has too much power concentrated in a single officer. The legislative branch has power spread too thinly, with too many choke points restricting the processes of government.

    I suggest that you have a collective executive, on the Swiss model, with say 5 or 7 members of a Council sharing the executive power. They could then take turns at one year terms as the ceremonial President.

    Congress should be a unicameral body, apportioned according to population. The Connecticut compromise made sense in the 18th century, but much less nowadays.

    I would suggest a system of proportional representation, with the executive council being elected by the whole citizenry (and possibly the Supreme Court as well), with the Congressional delegation for each state, DC and the insular territories being elected from each of the 56 jurisdictions. I would do away with the evil of gerrymandering by treating the whole of each state as an undivided district.

    The sort of proportional representation that I think would be manageable, for a national election and the vote in the larger states, would be an unordered party list system. The voter would cast one vote for the candidate they most preferred, which would both be a vote for the list as a whole and to determine the order in which individual candidates are placed in each list. This system would also make primary elections unnecessary.

    The changes I suggest, which do not touch on what should be in the bill of rights and the relative powers of the federal and state governments, would go a long way to simplifying the structure of US government and produce a more responsive democracy.

    There is no man alive who is sufficiently good to rule the life of the man next door to him. Sir Rhys Hopkin Morris, M.P.

    by Gary J on Tue Oct 04, 2011 at 04:28:33 AM PDT

  •  It might just be the ticket if (1+ / 0-)
    Recommended by:

    congress doesn't appoint its cronies to participate in the convention to the exclusion of regular peeps;
    the convention can deliberate, much like the Liberty Square folks are doing and really come to consensus and really use the power of the people;
    outside forces are kept from splintering the will of the delegates to do the best for their country.

    Clothes make the man. Naked people have little or no influence on society. - Mark Twain

    by glitterscale on Tue Oct 04, 2011 at 04:31:06 AM PDT

  •  maybe you are inadvert manipulating (0+ / 0-)

    perceptions..... can the grassroots find common ground you ask.....

    they already did..... Occupy Wall Street - nationwide....

    its happening are you sleeping through it?

    This is a contest of values. This is a choice about who we are and what we stand for. Whoever wins this next election is going to set the template for this country for a long time to come. ~ Pres. Obama

    by anyname on Tue Oct 04, 2011 at 07:44:50 AM PDT

  •  Suggestion: Explain 'ConConCon' earlier (1+ / 0-)
    Recommended by:
    Catte Nappe

    Maybe I've been under a rock, but I'd never heard of it. It's not explained until paragraph 7.

    I looked it up elsewhere long before I got that far in the piece.

    "We come on a peace thing. White flag?" "White flag!"

    by VictorLaszlo on Tue Oct 04, 2011 at 10:55:57 AM PDT

  •  Wouldn't there be (1+ / 0-)
    Recommended by:
    Oh Mary Oh

    the hugestest amount of pressure ever to corrupt the Constitution in favor of the right or of corporate interests?  I'm sorry, but the friend of my enemy is my enemy and the enemy of my friend is an enemy, too.  Too much can go wrong, I don't trust it.  Can 1 of the remaining 13 state legislatures be bought off in toto?  Hell yes they can.  Make me trust this process, I don't think you can.

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