One central cause of the dysfunction of government is the corruption suggested by the way government is elected. I don’t mean “corruption” in the traditional sense that saps the energy from so many developing nations. I don’t believe congressmen are on the take (California’s Randy Cunningham is an exception, of course[27]); I don’t believe their motives are impure. They are trying to do the best they can in the world they inhabit. But it is that world that is the problem.
For with that world, money controls attention. To become a member of the House of Representatives, you have to run. In 2004, if you ran in an open district, then you spent on average $1,086,437. If you won, you spent $1,442,216. If you ran against an incumbent in 2004, then there’s a 97.5 percent chance you didn’t win. (Only eight challengers won.) In the Senate, only one challenger defeated a sitting senator in 2004. Incumbency means life tenure in the United States. The average term for a member of Congress rivals the average term for a Supreme Court Justice.[28]
To raise this money, members of Congress must spend their time making those with money happy. They do this by listening to their problems, and sometimes, pushing legislation that will solve those problems. That sounds harmless enough, until you begin to realize just how much time they spend doing this fundraising. Former Senator Hollings estimated that one-third of a senator’s time is spent fundraising.[29] That’s probably a significant underestimate.[30]
Now just think about how absurd these priorities are. Congressmen work for us. If an employee of a restaurant spent 33 percent of her time arranging to get to work, she’d be fired. But that’s essentially what happens in Washington. The most significant chunk of time for members of Congress is time spent to raise money to remain members of Congress. Is this really what we pay them for?
The problem here is not so much that members of Congress aren’t doing their work. The problem is the way their work gets queered by this need to raise money. The easiest targets for fundraising are the clients of the lobbyists, and the lobbyists have lots of ideas about how to bend the law to benefit their clients.
And so Congress bends, and the law gets changed to benefit the most powerful in the economy. This is not capitalism as much as lobby-ism. Our economy is defined by a combination of laws benefiting some and power benefiting some.
To crack through lobbyism, you need a way to get the attention of members of Congress. But until the system is changed, the only way to get their attention is money. This is the cycle. Its results for democracy are vicious. Our Congress sees only what a small set want them to see. And what they see often has no obvious connection to the truth.
If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom. We can stand by and do nothing as these choices are made — by others, by those who will not simply stand by. Or we can try to imagine a world where choice can again be made collectively and responsibly.
Problems with Code
At a Harvard workshop around the time the first edition of this book was published, Jean Camp, a Harvard computer scientist who taught in the Kennedy School of Government, said that I had missed the point. The problem, she said, is not that “code is law” or that “code regulates.” The problem is that “we haven’t had a conversation about how code regulates.” And then to the rest of the audience, she said, “Did all of you like the debate we had about whether Microsoft Word documents would carry in them a unique identifying number? Was that a satisfying debate? ”
Her irony carried with it an important insight, and an interesting mistake. Of course, for the computer scientist code is law. And if code is law, then obviously the question we should ask is: Who are the lawmakers? Who writes this law that regulates us? What role do we have in defining this regulation? What right do we have to know of the regulation? And how might we intervene to check it?
All that is perfectly obvious for someone who thinks and breathes the regulations of code. But to a lawyer, both Camp and I, throughout this book, have made a very basic mistake. Code is not law, any more than the design of an airplane is law. Code does not regulate, any more than buildings regulate. Code is not public, any more than a television is public. Being able to debate and decide is an opportunity we require of public regulation, not of private action.
Camp’s mistake is a good one. It is a mistake more of us should make more of the time. Because while of course code is private, and of course different from the U.S. Code, its differences don’t mean there are not similarities as well. “East Coast Code” — law — regulates by enabling and limiting the options that individuals have, to the end of persuading them to behave in a certain way. “West Coast Code” does the same. East Coast Code does this by increasing the cost to those who would deviate from the rules required by the code. West Coast Code does the same. And while we might argue that East Coast Code is more prevalent — that it regulates and controls a far larger part of our lives — that is a difference in degree, not kind. It’s a reason to be balanced in our concern, not to be unconcerned.
Of course, there are differences between law and code. I don’t think that everything is necessarily public, or that the Constitution should regulate every aspect of private life. I don’t think it is a constitutional issue when I turn off Rush Limbaugh. But to say that there should be a difference is not to say that the difference should be as absolute as present constitutional thinking makes it. When we lawyers tell the Jean Camps of the world that they are simply making a “mistake” when they bring the values of public law to code, it is rather we who are making the mistake. Whether code should be tested with these constraints of public value is a question, not a conclusion. It needs to be decided by argument, not definition.
This won’t be easy, of course. Code is technical; courts aren’t well positioned to evaluate such technicality. But even so, the failure is not even to try. The formalism in American law, which puts beyond review these structures of control, is a third pathology that inhibits choice. Courts are disabled, legislatures pathetic, and code untouchable. That is our present condition. It is a combination that is deadly for action — a mix that guarantees that little good gets done.
Chapter 17. Responses
We need a plan. I’ve told a dark story about the choices that a changing cyberspace is presenting, and about our inability to respond to these choices. I’ve linked this inability to three features of our present legal and political culture. In this short chapter, I consider three responses. These responses are nothing more than sketches, but they should be enough to suggest the nature of the changes we need to make.
Responses of a Judiciary
I’ve said that we should understand judicial hesitancy as grounded in prudence. When so much seems possible, and when a rule is not clearly set, it is hard for a court to look like a court as it decides what policies seem best.[1]
Although I agree with this ideal of prudence in general, we need to move its counsel along — to place it in context and limit its reach. We should isolate the source of the judge’s difficulty. Sometimes a certain hesitation before resolving the questions of the Constitution in cyberspace finally, or firmly, or with any pretense to permanence, is entirely appropriate. But in other cases, judges — especially lower court judges — should be stronger, because there are many of them and because many are extraordinarily talented and creative. Their voices would teach us something here, even if their rulings were temporary or limited in scope.
27.
See Wikipedia, "Duke Cunningham," available at http://en.wikipedia.org/wiki/Randy_%22Duke%22_Cunningham (cached: http://www.webcitation.org/5J6nriPtV).
28.
The average term for a Supreme Court justice is 15 years. See http://www.supremecourtus.gov/about/institution.pdf (cached: http://www.webcitation.org/5J6ntfdHN). The average term for a Senator in the 109th Congress was 12.1 years, and for a member of the House, 9.3 years. See . The figures for campaign spending are derived from http://www.senate.gov/reference/resources/pdf/RS22007.pdf (cached: http://www.webcitation.org/5J6nwR1Lk).
29.
Ernest F. Hollings, "Stop the Money Chase,"
30.
Peter Francia and Paul Herrnson, "The Impact of Public Finance Laws on Fundraising in State Legislative Elections," 31
1.
Deborah Hellman, in "The Importance of Appearing Principled" (