Conference on the Constitutional Convention

This weekend I went to the Conference on the Constitutional Convention at: Harvard Law School (#conconcon). It was co-chaired by Harvard Law Professor Larry Lessig and Tea Party Patriot co-founder Mark Meckler. That's an interesting combination. They were introduced to each other a year and half ago and while they disagree on a lot they agree that Congress is broken. They believe that it's broken enough that it won't fix itself. I know that Citizens United in part convinced Lessig that an amendment is needed to change the influence of money on Congress. Congress won't instigate it but Article V of the Constitution allows states to propose amendments without Congress by calling a Constitutional Convention (just like in 1789). Over the years other groups have come to this conclusion and tried to get a convention called, this conference brought together speakers from a variety of backgrounds on the topic. It also brought together progressives and tea partiers to see if they could have an actual dialog not limited to demagoguery or 140 characters.

Lessig gave a presentation Saturday night that was by far the best part of the conference. He's been refining his thoughts on this over the last few years, has a new book out (Republic Lost), and I think this might be the best presentation I've seen him give. It's both convincing and compelling. It's worth the hour of your time to watch it. Really, I don't say that often and I really mean it here. He explains a new kind of monied corruption in Washington that started in the last 30 years and why it will be so difficult to fix and why it has to be fixed before Washington will be able to function again. Watch this (sound required):

Rootstriking from lessig on Vimeo.

The gist? Campaigns have gotten so expensive that rich lobbyists drive everything. Good legislation isn't even considered if there aren't sides that can be found to fund campaigns. Legislation is deliberately sunsetted so that politicians can go back to the lobbyists for more money to renew the laws. Moreso, Congress is a farm league for K Street, so politicians are beholden to lobbyists for their post-Congress careers so even term limits won't help. While he believes that money is corrupting, the real problem is that the perception of this corruption has destroyed the public's faith in Congress and has broken our republic. He supports ideas, such as those of Buddy Roemer, to require small donor funded elections. But really, the point is to have a convention where people could deliberate sensibly. We don't have such a place today, in Congress or the media.

I wondered if it should have led off the conference. There were a lot of good speakers and I found most all of it interesting, in an interest in constitutional law sort of way. It did seem a little academic at times. Since there hasn't been an Article V convention there are a lot of questions of how it would work and a lot of fear about having one. Several law professors went into the details which I found interesting, but several others described how they got over their fear by realizing that the status quo wasn't good and there are various protections built in to prevent anything too radical from happening. The clearest evidence is that the convention will just be able to propose amendments and anything that comes out of it will need to be ratified by 75% of state legislatures. There are 13 solid blue and 13 solid red states that could block anything too radical.

One speaker, Bill Walker of Friends of the Article V Convention has been looking into this for a while. Their FAQ is quite good. Over the years states have submitted over 400 applications for a convention to Congress, 49 of the 50 states have submitted at least one. But Congress hasn't acted and he's brought petition to the Department of Justice to compel Congress to perform their constitutional duty (Article V says Congress "shall call a convention" if asked). The DoJ is expected to respond in a few weeks, so Walker found much of the conference moot.

I did have another issue with the conference but it was by design and I've come to accept it. The conference wasn't really about how to fix the problems but about how to go about fixing them. It was about how to get a convention where we could discuss. The people in the room didn't agree on how to fix government, they didn't even agree on what the problem was. It's still liberals and conservatives. As one speaker (perhaps Prof Tribe) said the vectors are all pointing in different directions. One group supported an anti-flag burning amendment, another wants to prevent Congress from increasing the national debt without the approval of a majority of the state legislatures, another wants to ban corporations from political donations. Uniting this group of people will be hard, but as Prof Sandy Levinson put it, centrists probably don't want a convention by definition but for better or worse we are more polarized.

Lessig also phrased it well in an article a few weeks ago, "Yet the differences between Meckler and me, or between the Tea Party and the Left more generally, are tiny as compared to the differences among many of our Founders. However much we disagree, our disagreement is puny as compared to the fight over slavery, or the decision about whether to found this nation as a monarchy or a republic. Meckler and I believe that if THEY could put aside their differences long enough to debate with respect the changes their constitution might need, then WE should be able to put aside our much smaller differences to focus on a way to end our own crisis of governance."

So I'm beginning to like the idea of a convention, I'd hadn't really thought about it before. But I also really like Lessig's analysis of the root cause of the current disfunction in Washington. It's really non-partisan and fixing it is not in any way a fundamental change to the constitution, it merely fixes a new hole that's been found (or developed by Supreme Court rulings in the last 30 years). But while he does have his ideas for an amendment, he stops short of language because the only viable path to get there is through a real dialog of people with different opinions. The country is split roughly 50/50 and yet we'll need 2/3 and 3/4 to agree.

Mark Meckler spoke on the closing panel. While he praised Lessig's speech (had he never heard one of his speeches?) he thought it was flawed. I guess I shouldn't have been surprised, the two don't agree politically. Meckler thought there was a deeper root cause to the problem of Congress. Money is corrupting and putting up another barrier won't help because money will just find another way to influence. There’s a reason there is so much money in politics and that's because there is so much money in government. If government could do less, money interests wouldn't have to corrupt Washington. I went up to him afterwards and said that I'm a liberal and I think that the big government small government debate is really just the federalist anti-federalist debate that we've had in this country since the founding. He agreed with that. I said I don't want either side codified in the Constitution, it's the Constitution that lets us debate it back and forth. The thing about Lessig's proposal, that we need a democracy that's dependent on the people, not the funders, is that it's necessary to let that happen again. I'm not sure if he agreed or not, but I know he appreciated my comment more than the two combative ones that followed me.