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Lawrence Lessig

Lawrence Lessig

Posted: March 22, 2010 02:25 PM

The Moment

What's Your Reaction:

President Obama will savor, and rightly so, his extraordinary achievement in enacting fundamental health care reform. He has done something few thought possible, and he may well have revived the enormous faith that his election gave millions. But we should not miss the lesson in this fight. Nor the opportunity to rally this rebounded presidency to its real potential for reform.

However good, however essential, however transformative this health care bill may be, we should not mistake success here as a sign that Washington has been cured. Indeed, as Glenn Greenwald reminded us over the weekend -- in an essay that should be every reformer's required reading -- success on this bill is no justification for:

claiming that it represents a change in the way Washington works and a fulfillment of Obama's campaign pledges.  The way this bill has been shaped is the ultimate expression -- and bolstering -- of how Washington has long worked.  One can find reasonable excuses for why it had to be done that way, but one cannot reasonably deny that it was.

Obama's victory was achieved because his team played the old game brilliantly. Staffed with the very best from the league of conventional politics, his team bought off PhRMA (with the promise not to use market forces to force market prices for prescription drugs), and the insurance industry (with the promise (and in this moment of celebration, let's ignore the duplicity in this) that they would face no new competition from a public option), so that by the end, as Greenwald puts it, the administration succeeded in "bribing and accommodating them to such an extreme degree that they ended up affirmatively supporting a bill that lavishes them with massive benefits." Obama didn't "push[] back on the undue influence of special interests," as he said today. He bought them off. And the price he paid should make us all wonder: how much reform can this administration -- and this Nation -- afford?

For let us not forget: for a president overwhelmingly elected just a year ago, with a super majority in both the House and Senate, this has been a bizarrely difficult fight. This wasn't a third-string issue for Obama. It was the premier issue on the this President's agenda. And regardless of the foxmyths that spin with public opinion polls, it wasn't as if America didn't vote with a clear demand for health care reform. Yet the fight for this first major battle of this administration practically killed the administration, and this near death experience should finally waken this President from his conventional-politics stupor, and remind him of the reformer he originally was.

It was two years ago precisely that candidate Obama finally tuned perfectly the frame which he claimed hung around his campaign -- and which distinguished him from the Democrats' presumptive nominee, Hillary Clinton. As he said on the eave of the Pennsylvania primary, echoing a theme that had been growing over the prior 16 months,

For far too long, through both Democratic and Republican administrations, the system has been rigged against everyday Americans by the lobbyists that Wall Street uses to get its way.

Think about it. The top mortgage lenders spend $185 million lobbying Congress, and we wonder why Washington looked the other way when they were tricking families into buying homes they couldn't afford. Drug and insurance companies spend $1 billion on lobbying, and we're surprised that our health care premiums, and co-pays, and the cost of prescription drugs goes up year after year after year. The big oil companies play the same game, and we wonder how they're making record profits at a time when you're paying close to $4 a gallon for gas.

The system is broken ....

I know there's been some talk about Rocky Balboa over the last couple days. And we all love Rocky. But Rocky was fiction. And so is the idea that someone can fight for working people and at the same time, embrace the broken system Washington, where corporate lobbyists use their clout to shape laws to their liking.

We need to challenge the system on behalf of America's workers. And if we're not willing to take up that fight, then real change -- change that will make a lasting difference in the lives of ordinary Americans -- will keep getting blocked by the defenders of the status quo.

This is an administration with high hopes. They are the hopes of America. Obama ran, as an angry email from inside the campaign during the campaign told me "on a platform of universal health care, ending the iraq war, a massive cap and trade system, 18 billion in new money for education, a revamping of the tax code to make it more progressive, a restoration of our civil liberties and enforcement of our anti-discrimination laws, a doubling of foreign aid, a huge expansion of national service tied to making college more affordable, tightening regulation in the financial markets, an unprecedented set of ethics and transparency rules governing the white house." But how much, at this pace, will we get?

The lesson of the health care struggle is not that Republicans are evil. The lesson is the one candidate Obama taught us again and again. That "unless we're willing to challenge the broken system in Washington, and stop letting lobbyists use their clout to get their way, nothing else is going to change." Republicans were just the sock-puppets for that clout this time around, aided by key swing Democrats. And a campaign waged against these sock-puppets will be a useless campaign waged against ½ of America.

Rather than waging that partisan fight, this is the moment to challenge that "broken system." Americans are disgusted by the story of this reform, however much they will come to love the health care it produced. They don't need to be convinced that the "clout" in DC over this past year came not from votes in an election, but from dollars these lobbyists will deliver to a Congress still addicted to campaign cash.

Remind us again, Mr. President, about that "clout." Focus us again on the "fight" that we must "take up." And then take up that fight. That was "the reason," you told us, that you were "running for President [ -- ] to challenge that system." So challenge it now. And give us all the reason to fight to make sure you have 7 more years to deliver on the promises that you made.

 
 
 

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HUFFPOST PUNDIT
den1953
The National Inquire of Politics the GOP!
04:47 PM on 03/28/2010
If any lessons were learned through this is don't wait for the Republicans they don't care and want this administration to fail!
HUFFPOST SUPER USER
alex61
02:19 PM on 03/28/2010
America wanted health care reform, but not necessarily this reform.
Most of the delay was due to infighting in the Democrat Party. Obama's explanation for all the trouble was "Republican obstructionism."
No one knows yet how this is going to work out. A geuinine bi-partisan effort might have produced a better bill.
The way Obama & Co. operates really puts off, and even scares millions of Americans.
What Obama call "obstructionist" others call resistance.
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HUFFPOST SUPER USER
Acharn
02:20 AM on 03/29/2010
What could/should they have done to invite bipartisanship? Sen. Charles Grassley "negotiated" with Sen. Max Baucus for six months, and then told his Republican constituents, "I'm just playing with him, wasting his time, because nothing he does will get me to vote for this bill." Sen. Mitch McConnell said, "We can make this Obama's Waterloo." They were united, as never before in history, in a desire to make America fail.

You say it was resistance, not obstructionism? Well, resist away. You got a Republican bill. Now you say you don't want it. I say, "No more cooperation!"
01:58 PM on 03/28/2010
"For let us not forget: for a president overwhelmingly elected just a year ago..." -- Overwhelmingly? How divided are we that a seven point lead is defined as "overwhelming"?
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HUFFPOST SUPER USER
Acharn
02:21 AM on 03/29/2010
Quite a lot more overwhelming that fewer popular votes than your opponent. More overwhelming than 5-4 among the Supreme Court justices.
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HUFFPOST SUPER USER
Donald Fannin
provocatuer
08:48 AM on 03/28/2010
Take off your Rose Colored Glasses. You can't expect anyone to move into the White House and within a year and a half change how Washington does business. If Obama would have stuck to the high minded goals you propose nothing would have been done. Washington has been doing business this way since at least the time Eisenhower warned of the Defense-Industrial Complex. Obama pussyfooted around for over a year trying just to get a bipartisan approach. He couldn't even get them to make a proposal. If he would not have cut some deals nothing would have happened. Nothing would happen for 4 years. You have to play the game on the field that is assigned. If that field is a sloppy muddy mess then you are to get dirty doing it.
03:31 PM on 03/30/2010
I find Donald Fannin's response perceptive, especially his closing line: "You have to play the game on the field that is assigned. If that field is a sloppy muddy mess then you are to get dirty doing it".
Max Weber, who focused on what change entails, would have thoroughly agreed. In his essay, “Politics as a Vocation,” Weber offers a similar perspective. Any “ethically-oriented conduct may be guided by one of two fundamentally differing and irreconcilably opposed maxims,” he explained. One he called the absolute ethic or the ethic of ultimate ends. The other he called the ethic of responsibility. The individual who espouses the absolute ethic refuses to compromise his ideals, such a person “feels ‘responsible’ only for seeing to it that the flame of [his] pure intentions is not quenched.” The ethic of responsibility, on the other hand, is aimed at “making a difference.” The person who adopts this stance is acutely aware that he will not emerge “pure” from the involvement. He knows that only if he works within the system can he do something to change it. The person who follows the ethic of responsibility reaches a point, as Weber says, where he can only say: “Here I stand; I can do no other” to achieve this goal. In order to make a difference, then, that person must seek a greater good while simultaneously accepting that he has compromised the “purity” of his own convictions. I believe that that describes Obama's negotiations.
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HUFFPOST COMMUNITY MODERATOR
DBtv
02:48 AM on 03/28/2010
Oh, yeah, with only the economic power elite, their bought out legislators and their mind controlling media against everything he tries to do, The President should be able to fundamentally change a social and economic system set up for centuries to maintain the status quo for the elites WITH NO EFFORT.

Surely you are not so naive to actually believe that the unquestionably expressed Will of The People carries any weight in the realpolitic machinations of the country. Elections are merely a facade to keep the huge majority from rising up and eliminating the tiny minority that actually control all economic and political realities.
HUFFPOST SUPER USER
duckfan00
Après nous le deluge
01:40 PM on 03/28/2010
One week after his inauguration I remember receiving the nasty emails from people and relatives who work with Wall Street associates that were blasting and mocking President Obama....these emails did not stop all year nor will they now....But once you wake up and look at John Boehner and Mitch McConnell being the face of the opposition you realize your doing the right thing....The corporate/media elitists will always plug their friend's books and give cushy jobs to their kids who will then be couteous enough to quickly close the door right behind them...heck look at Jeff Zucker at NBC giving Bush's daughter a great job....
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HUFFPOST SUPER USER
Acharn
04:33 AM on 03/24/2010
Sorry, but I'm bitterly disappointed in Obama. I believe that he turned completely away from the effort to change the system; he certainly turned completely away from any effort to restore the rule of law; he has shown only an appalling desire to continue Bush's worst policies. I'm equally appalled by the Obama worshipers. How can they ignore the continuation of rendition, the abandonment of principle involved in refusing trials to people who were put in cages based on anonymous and often false claims. How can they let Obama's minions proclaim that there are people who cannot be tried but "are too dangerous to be set free." Our police and courts are required to do it all the time, if they don't have evidence to convince a jury. How can they let Obama skate free from his promise to reverse the awful FISA Amendment Act that he first promised to filibuster, then voted for? He is not good at the kind of negotiations Rahm and Axe persuaded him to undertake, and the country can't afford three more years of that kind of pay-off, much less seven.
05:19 PM on 03/23/2010
You might also have mentioned that Greenwald wrote: " a former Wellpoint executive was the principal author of the original Senate bill from which the final bill was derived."

This bill was an Insurance Lobbyist's dream bill through and through. It's a give-away to the Insurance and Pharma industries just as TARP was a give-away to the crooks on Wall Street. Obama gave away every thing and got almost nothing.

While the GOP is dithering on the outskirts of Lalaland, the DLC passed Republican Health Care for them.
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HUFFPOST SUPER USER
tbone99
cruisin' duality
05:16 PM on 03/23/2010
The lesson is the one candidate Obama taught us again and again. That "unless we're willing to challenge the broken system in Washington, and stop letting lobbyists use their clout to get their way, nothing else is going to change."

The only thing we learned with this insurance company victory is that the president and too many Dems are more than happy to "let lobbyists use their clout to get their way.", starting with Obama when he reneged on the public option he campaigned on, to make the for- profit hospital industry happy .Next he came out for the mandates he campaigned against.

I'm not sure democracy can take seven more years of this "reform"of the electorate.... in order to enrich the corporate sector
03:52 PM on 03/23/2010
Sometimes, the most important thing in a victory is not that you've won but the realization that you can win. I think that is the case and the most crucial lesson here. This really is a "yes, we can victory." But what has been defeated is the sense that we can't do anything for gridlock (note that gridlock is marshalling its forces to try to repeal the victory). The danger here is falling into complacency and thinking that because we have won things have changed. Things haven't changed but there is momentum to move us out of the inertia. Yes, there were compromises, but until this ball picks up speed lets not get so hung up in the compromises that we let them kill the momentum. Corrections will need to be made as we go, but the going needs be our first priority.
01:39 PM on 03/23/2010
This is a wonderful opinion. The things mentioned are unanimous and needs to be appreciated by everyone.
cash for gold
01:26 PM on 03/23/2010
Professor Lessig, this is a moderate voice in the storm.

However, I question your final assumption, that Obama is at heart a good and moderate politician who really WANTS to change things, but instead is fighting against a corrupt system.

Time and again, during the health care "reform" process, Obama made it clear that HE (and, by proxy, his bulldog/handler Rahm) was the real roadblock on the way to actual, living and breathing reform.

You cannot simply put your faith in the idea that the guy who just suckerpunched you and stole your wallet will, in fact, treat you fairly if you give him your car as well.
12:11 PM on 03/23/2010
The healthcare bill is completely constitutional because it is a tax.
02:51 PM on 03/23/2010
Actually no, it is not. If the liberals had any spine, they would have introduced a public option, directly supported by taxes, like in Great Britain, and THEN it would have been a tax!!
11:11 AM on 03/23/2010
well stated, Professor Lessig.
11:06 AM on 03/23/2010
So true, Professor Lessig, so true.. We all need to be patient and understand that this country, over the last 30 years had fallen into a deep hole. The last eight were especially dark. Change takes time-Rome wasn't buit in a day. Moving ahead is so hard in this climate but Obama has shown himself to be both resolute and canny, Dems need to take this "foot in the door" and run with it now.
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12:54 PM on 03/23/2010
"Change takes time-Rome wasn't buit in a day."

LOL...we are definitely like Rome....
12:58 PM on 03/23/2010
So true...this is the beginning, not the end. We need to get health care out of the hands of for profit insurance companies - they have ki.ll.ed too many Americans as it is!
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10:39 AM on 03/23/2010
I'm going to ask the same question now that I've asked about the Iraq and Afghanistan wars: WHERE ARE WE GETTING THE MONEY FOR THIS??? (Disclaimer: I voted for Barack Obama.) It's hilarious--you go from story to story, and NO ONE will address the big white elephant in the room. Just head out to the ol' magic money tree behind the White House and pluck off another trillion dollars. INSANE.

Here's a good post from this morning's MarketWatch boards, where people at least have an inkling of the kind of disaster that's waiting for the United States and can by and large dispense with the Democratic/Republican masturbatory partisan nonsense:

"Any economy that requires zero % interest rates ad infinitum and trillion $ stimulus injections just to tread water is by definition an economy on life support with serious/lethal structural problems. The structural problems are insurmountable debt and loss of wealth creation through the exportation of manufacturing/technology infrastructure overseas. It's like running up your credit card to the max then getting your wages slashed in half. Without change, the outcome is certain."

But hey, what's a couple of trillion between friends, right? GOOD LUCK, my friends....
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PopsinAZ
Questioning partisan politics.
12:40 AM on 03/24/2010
Hey VOOTER: Good Question "WHERE ARE WE GETTING THE MONEY FOR THIS???"
Unfortunately, you are asking this question of the WRONG people. Most of the people who post comments on Huffington Post are what we used to call 'Yellow Dog Democrats," but are now way, way, LEFT of what used to be members of the Democratic Party. They are PROGRESSIVES, and they are believers. They believe the role of the government is to be responsible for redistributing the wealth and taking care of everyone (unless they are rich, or self sufficient, or have an old fashioned work ethic, or dare I say it: Republicans or even worse Conservatives). The government can increase taxes for the rich, and/or print more money and distribute it. A few more trillion dollars in debt.........no problem. Take over banks, auto manufacturers, insurance companies, the states, etc., etc., Why not? After all, they are too big to fail, aren't they?