HH: Professor Lessig, welcome to the Hugh Hewitt Show, good to have you.
LL: Very good to be here.
HH: I’ve introduced you as a longtime admirer of Barack Obama as the Stanford Law professor, and the founder of Change Congress, et cetera. How well do you know Barack Obama?
LL: I was a colleague of his at the University of Chicago in the early 1990s. So I knew him, I mean, he wasn’t a best buddy, but I knew him back then.
HH: And have you stayed in touch throughout this campaign?
HH: And in what capacity are you advising him, if at all?
LL: The advice I’ve been giving is not directly to him. I’ve been working with a technology group to figure out what good technology policy might look like.
HH: And do you think he is committed to net neutrality in a lot of the issues that those who deal in new media care about?
LL: Yeah. He was committed to those issues before the campaign started. But I know, especially from the kinds of people inside his Senate office, that he’s extremely sensitive to these issues in a way that I think net people would be very excited about.
HH: Now you are well known as someone who is now in favor of trying to get money out of politics. Senator Obama is going to take private money for the campaign in the fall. What’s your reaction to that?
LL: Well, Senator Obama has supported public funding for Senate and Congressional elections. He’s a co-sponsor of that bill. Nothing he’s done in the presidential election has questioned that. I think it makes it harder to support that, given what he’s done in the presidential elections. You know, I understand why he did what he did. But I also think that you know, this message that we need to begin to communicate about why it’s so important to get money out of these, especially in Senate and House elections, is going to be a harder message to convey now than it was before.
HH: Did you perceive it as a breach of a commitment?
LL: Well, it’s certainly true that he said he was going to take it, and now he said he’s not going to take it. I understand, I understand why he made that change. I don’t think it’s been well articulated by the campaign, but I think the reality was when they sat down and they realized they would have $80 million dollars, and the other side was going to spend maybe $150 million dollars in 527s, or these kind of independent expenditures, it was extremely hard to, in that sense, tie your hands and continue to wage a successful campaign. So given the existing system, the relative, you know, disproportion of spending that’s going to be possible under the existing system, I can see why they felt like they had to change that position. And I think the real measure is going to be once he is president, Obama, how strongly he pushes for both the reform of the presidential system, and the change at the state and Senate and House level, because you know, even if we come to the view that presidents don’t need money from the Treasury to run their election, that you know, everybody can be like Obama and raise money from a million plus, close to two million people from the internet, that just is not going to be the case with the Senate and the House races. And that’s the place where money, I think, has its most …. effect.
HH: Spending more time, though, on the argument put forward by Senator Obama as to why he did it, did you find it persuasive that there’s more 527 money on the Republican side than the Democratic side? I mean, after all, George Soros and many other Democrats, and labor unions, have put a lot of 527 money into this effort. Do you think that’s really an effective answer to ‘they were going to outspend me’, when in fact there was so much 527 money from the left in the system?
LL: Well, I think it’s persuasive because it’s true. The 527 and MoveOn, which is what Soros is being the strongest supporter for, has shut down. There’s no 527 from MoveOn anymore. And Obama has pretty openly asked supporters not to be giving money to 527s on what’s perceived to be the left. So I think that in fact, the reality was it was not going to be, you know, he would have to, he would have had to do what would have been even worse from the standpoint of the values that he advances, which is to out and say okay, we’re limited to $80 million dollars, but I want all my friends to give money to these 527s so that the 527s can balance the 527s on the right, because the 527s, you know, they’re raising some of the worst questions of this kind of corruption, because you know, essentially unlimited campaign giving makes them extremely powerful in the balance of influences that go into a campaign.
HH: Do you expect there will be 527s contributing to the campaign for Obama and against McCain?
LL: I certainly do.
HH: Yeah, and do you think they’ll match, pretty much, the money put in by the Republicans?
HH: Okay, we disagree on that. I think actually, even though that…
LL: Well, here’s an empirical question. Let’s see where we are, then, in six months, who was right.
HH: That’s what I mean. But if in fact it is similar in scale and magnitude, that will have undermined Obama’s claim. And I do think he’s going to have a hard time making any kind of persuasive argument about public funding in the future when given the key moment in his own personal political life, it’s in his best interest to take private money so he takes private money, do as I say, not as I do, isn’t it, Professor?
LL: No, I don’t think it undermines his claim, because his claim is based on the expectation, and I don’t think there’s any real credible difference in expectation. You know, first, start off with the amount of money that the RNC has in their bank account right now to spend on the campaign versus the amount that the Democrats are going to have. So he might turn out to be wrong about the expectation, but that doesn’t change that it was in fact a fair estimation of what was going to happen in the future. Again, I do think, when it comes later after the election, to being able to support public funding, it’s going to be hard to explain how he didn’t support, he didn’t take public funding, and now he’s supporting public funding for the rest of the campaign. But it’s hard if you don’t spend ten seconds thinking about the issue. Once you’ve spent ten seconds thinking about the issue, you can see there’s a distinction here, and he’s going to have to get over that in order to push public funding. I still expect that fundamental reform to the electoral systems, to assure that we have not disproportionate influence of money, is his objective, and I’m certain that’s where he’s going to go after he’s president. But I agree this complicates it.
HH: You also have a fairly forward profile on encouraging conversation in the campaign debate. Senator Obama had agreed to meet John McCain anytime, anywhere, but of course has now refused to do so. Disappointment for you there?
LL: I think that it’s not clear exactly what is being said, so I’m holding back from being disappointed there. But I think what’s encouraging is that both sides want to have a debate that’s not going to be mediated by a press keener to focus on the gotcha issues that might raise their ratings, and instead focus on issues that are important. I think McCain and Obama are both driven to that type of position. That’s a good thing. I hope both of them take the position that guarantees that as a product of the debate, the actual tapes of the actual recorded events, gets freely licensed where anybody can do whatever they want with them, as opposed to the last series of debates where basically, networks owned the debates, and then would issue threatening letters to anybody who used them in ways they didn’t like. So I think that’s going to be a pretty big issue to what happens today.
HH: But again empirically, Senator McCain said let’s go ten weeks in a row with town hall format, no moderator, and Senator Barack Obama said no, let’s do one on July 4th, which didn’t happen. Clearly, I mean, this is not ideological, he just doesn’t want to do those, because he’s ahead. Are you disappointed in his sort of sitting on his lead and not engaging in these sorts of conversations, which could have had sort of Lincoln-Douglas debate potential for edifying American political discourse.
LL: Yeah, I think if on, I don’t remember what the day of the election is, but if after the election it turns out we didn’t have a series of Lincoln-Douglas like debates, yeah, I’ll be disappointed. But what I’m saying is I don’t think, I think it’s premature to be disappointed now, because we’re just in the middle of the dance that both campaigns do when they’re trying to set out the terms of debate. So let’s see whether it happens. There should be a series of Lincoln-Douglas style debates. It would be fantastic for the nation to have that for the range of issues that we’ve got to think about.
HH: I agree. I just, I don’t see any hope that Obama will agree to it, and I think maybe Obama supporters need to bring some pressure to bear on him. Have you encouraged him to do this?
LL: I haven’t talked to him about it, no.
HH: When you were writing a very famous blog post for Barack, November of last year, I’ve got it in front of me, you said one of the reasons you couldn’t support Senator Clinton is, “her eager embrace of spinelessness.” Do you think Obama is playing the bold sort of politics you could not find any evidence of on Senator Clinton’s part?
LL: Well, you know, I think that the last month has certainly made it hard for some people, because they feel like he’s changed positions. I actually think the places that he’s changed positions are pretty narrow. It was just two. One of them is the one we’ve already talked about, the second is telcom immunity. But the positions which, you know, especially people on left don’t like, for example, his view on whether child rapists should be executed, or his view on the Second Amendment, are not changes in his position. Barack Obama is not a lefty. You know, he has a mix of positions, some which are attractive to the left, some which will be attractive to the right. And I think that what he’s done is get some people on the left upset when he’s allowed himself to articulate those positions people on the left don’t like. So I certainly, in fact, there’s a blog today about how the changing of positions feeds the opportunity for the other side to say this is not someone different, this is a just a regular politician. But I certainly don’t believe that that’s a true characterization of him. I just think, you know, they’ve given, he’s given the other side some Kryptonite, and that’s a bad development for the campaign.
HH: Now you suggest he’s not a lefty, but let’s take some issues. He did support the D.C. gun ban until it was overturned. He says he’s in the individual rights model, but he did like the D.C. gun ban, and the Chicago gun ban, for that matter. So that’s pretty far out on the left side, isn’t it?
LL: I don’t know why that’s on the left side. You know, obviously, people who support gun bans are not necessarily on the left. Think of Sara Brady and the Brady Bill, which you know, comes from pretty strong support on the right. He’s an individual rights person on the Second Amendment. He’s, I think, always been an individual rights person on the Second Amendment. I personally don’t agree with that interpretation, but you know, the opinion of the Supreme Court is not an opinion, is not a model of clarity. We’re going to have a whole bunch of litigation now to figure out which of these individual gun bans pass the new standard articulated by Justice Scalia for the majority. But the part that’s not changed, and the part that liberals don’t like, is that he’s an individual rights person on the Second Amendment. Well, that’s to say he’s not a lefty. He’s, you know, on this position in particular.
HH: But in ordinary typology of politics, most people who would support a complete ban as D.C. had would be understood to be on the far left side of gun control advocacy. Whether you want to accept the ordinary political typography, you know, I can’t oblige you to, but that’s just ordinarily how one would define it, the Chicago, D.C. ban, San Francisco bans representing the mast draconian of the gun laws of the United States. And he supported them. And then when he spoke in favor of the Supreme Court decision, that was perceived as inconsistent with supporting the bans. That was a fair reading of his position, wasn’t it?
LL: I don’t think so. I think what you’re trying to do, let’s simplify it, so that we can understand it in the terms of ordinary political discourse, and then let’s point out any inconsistency, when it turns out he is not consistent with the simplification. The point is, he’s not been a supporter of collective rights’ views of the Second Amendment. That is not a lefty position. That’s a position…you know, I don’t know what…it’s not a Rush Limbaugh position, but it’s certainly not a lefty position. The lefty position is the only thing the Second Amendment does is support the ability of the militia to arm itself. And that’s not what happened. That’s not what’s at stake in these other areas.
HH: Let’s talk about…
HH: …gay rights if we could.
HH: This week, he released a letter to a gay, lesbian, transgender rights organization in San Francisco, which you may or may not be familiar with, but in the in the letter, he called for the repeal of the Defense Of Marriage Act, he called for the defeat of the California Marriage Amendment. Previously, he said he favored marriage between a man and a woman. This appears again to be a change of his position, sort of a lurch left, actually, to the maximalist position on same sex marriage. What’s your assessment?
LL: You know, I’ve never seen his position change here at all. I’ve seen him, a number of times, I’ve seen him speak, get up and say he supported gay rights, the right of people to marry whether or not heterosexuals or homosexuals. His opposition to the California initiative is consistent with that. But this is not an area I’ve been following closely, so I don’t know…
HH: Well, that’s my understanding. I’m just trying to be fair to what his campaign has said. But I believe he’s on the left side of that issue. Do you agree with that, Professor Lessig?
LL: Sure, but again, my point is that he’s not consistently on the left. He is on the left on some places, and on the right in other places. For example, supporting the execution of people who are child rapists, that’s certainly not a lefty position, and I think part of the problem here is that we come to the campaign with a kind of left-right distinction from that set in stone in the 1960s. And the whole point of Obama, the Obama campaign, is, I think, to get us over that generation, and begin to look at the world without, with the glass of the 1960s.
HH: Well, some of us are skeptical, though, of that, and think that it’s more marketing than anything else, and wonder, for example, if you want to raise the highest marginal rate of income tax in the United States to 53-57%, depending on how you calculate, take off the cap on Social Security, repeal or allow the death tax to resume to its highest level, those strike us as fairly ordinarily left wing positions. Are we wrong to believe that?
LL: Uh, no. The question isn’t whether he’s got left wing positions. The question is whether he’s a left winger. And the whole point that he’s getting pressure from the left on is that he also takes positions that are not left winger. So he’s not left, not right. He’s cutting both…he’s doing both, so people on each side are going to be upset with certain things. But particular issues that he’s supported, like the ones that you’ve just identified, you know, I think would make some people on the left happier than some people on the right.
HH: Well, intellectually, though, if you’ve got a series of fifteen issues of salience to most voters, and on those fifteen, on thirteen of them, he’s demonstrably on the left side, and you can point to one or two, for example, he’s changed his opinion on FISA after opposing it all these months, he’s now for telecom immunity.
LL: No, no. That’s not precise. What happened in that bill was that there are two parts to that bill. One part is changing FISA, and making sure prospectively the procedures are followed, despite the fact the President said he didn’t have to follow procedures. The second question is telecom immunity. And the point is, they put those two separate issues into the same bill, so they were buying off votes for the FISA change by granting telecom immunity. Now he has said consistently that he supports, he doesn’t support immunity, although he said he would support the compromise, the compromise meaning these two things wrapped into one bill, because he supports the change in FISA. Now that’s not a change in his position on FISA. What it is is a change in his position of whether he would filibuster a bill that has telecom immunity in it. What he said is, before he would filibuster. Now, he’s not going to filibuster, but he would support abolishing immunity in the future. That’s not a change. That’s not a change on FISA.
HH: Except in the reality of politics, in the way that Congress legislates. He previously opposed the package, he now supports the package.
LL: He now supports a different package. So again, you want to simplify, you want to dumb it down so it’s no longer recognizable, yeah, I guess I have to agree with you. But within the facts, the facts are the bill changed. The bill changes, he now supports the compromise. What’s different is he is no longer going to filibuster on the issue.
HH: That’s right.
LL: But he still does not support immunity, and he now says he wants to oppose it. Now I wish he’d gone further. I’ve criticized him for that.
HH: But he’s going to vote for immunity.
LL: …and say he would not vote for immunity, period.
HH: But he is going to vote for immunity.
LL: But it is not accurate to say that he’s changed his position on FISA. He’s not.
HH: But he is going to vote for immunity this time.
LL: Right, but again, are you trying to snip it down so you can have a snippet that’s misunderstandable from the truth?
HH: No, I…
LL: Because the truth is as I just described.
HH: I’m just trying to find out why the left is upset with him, if what he has done is an imminently reasonable adjustment of position, why is the left so…and I mean they’re very angry with him, Professor, as you probably know from reading some of the left wing blogs. They’re very upset with his position on this compromise bill, and his refusal to follow his commitment to filibuster. Are they justified?
LL: You’ve exactly identified why they’re upset, his refusal to filibuster. But his refusal to filibuster is not the same as saying he’s changed his position on FISA. And that’s what you said. He didn’t change his position on FISA. He changed his position of whether he would filibuster a bill that had immunity in it. Now again, I wish he had not done that. I criticized him for doing that. But that’s not to say he’s changed his position on it.
HH: Well, I think we have to disagree on that, and again, I’m not debating you. I’m more interested in getting your opinion. I can explain at great length why I don’t accept that premise when you vote for a bill and against a bill in the legislative compromise. But I’m just more curious about the left and Obama, given his run to the left in the primaries, now his lurch back to the right with a couple of positions, his inconsistency on public financing, his turnaround on the debates, his sudden candor on marriage, his cloudiness on guns. I mean, he’s just another pol. He’s a left wing pol, and I don’t know how sort of the fervor can be maintained when he’s revealed just to be basically a South Side of Chicago pol.
LL: Well, I agree with you that if he’s a South Side pol, there’s no reason to have fervor. I also agree with you that if he changes his positions on issues, it will make it easy for people to characterize him as a South Side pol. I don’t agree with you in the list of issues that you’ve just gone through, that he’s changed his position in any interesting way. I’ve identified for you the two places I do think he has changed his position. One on campaign finance, two on whether he would filibuster telecom immunity. Now you know, of course the other side is going to try to take these two issues, and explode them into a long list that suggests that he is just flipping whenever he finds it convenient to flip. I don’t think that’s what’s happening. But I understand the rhetorical power of trying to characterize it like that, and I think the whole question of this campaign, for the campaign, is going to be whether they can avoid in the process of running for president the difficulty of explaining the decisions you make as a United States Senator as you have to vote on particular issues. So he’s not flipped on whether he supports immunity or not. What he’s done is agreed not to filibuster a different bill as it goes through the United States Senate.
HH: All right, a different example…
LL: I wish from the standpoint of the presidential campaign he hadn’t done that. But from the standpoint of being a senator from Illinois, you know, that’s what a legislative process is. It’s about that kind of compromise.
HH: A different example, he appears before AIPAC, and says Jerusalem should be the united capitol of Israel. And the next day, he changes his mind on it. Bothersome?
LL: Yeah, I think the next day, what happened was there was a statement issued that clarified what he meant by divided. This is not an area of my expertise, so I don’t know. If in fact he’s changed his position, that bothers me. I just haven’t seen that that’s happened.
HH: Have you perceived…he gave two press conferences in the same day last week on Iraq, one in which, the second one, he announced I’m not looking for maneuvering room on Iraq when the previously one had been widely understood by the poor guys in the press just trying to follow the bouncing ball, that he had changed his views on Iraq. What do you think are his views on Iraq?
LL: What do you mean, what do I think are his views on Iraq?
HH: What’s his policy?
LL: I’m not going to speak for the campaign on his policy in Iraq.
HH: Do you have an understanding of what you think it is?
LL: Yeah, I mean, his policy in Iraq starts with his opposition to the war, second his desire to get out as quickly as possible, and third, in the structure of how that’s going to be executed, depending on the advice of the military commanders. That’s my understanding, but again, you’re…this is not an area of my expertise.
HH: Have you perceived that he’s changed his position about meeting without preconditions with Ahmadinejad, Chavez, Castro, et cetera?
LL: I have not perceived that, no. I’ve understood, you know, to be a huge amount of press about whether parsing statements made in particular ways makes it look like they’re inconsistent. But again, you’re part of this spin, and this spin is let’s see how many places we can find inconsistency in order to say see, he’s just a flipping politician.
HH: I’m just asking. I’m not arguing.
LL: You’re just asking? Come on, there’s no such thing as just asking.
HH: I really am, because you’re one of the smart…
LL: Really just asking? Okay.
HH: You’re one of the smart lefties who’s hanging out with Obama’s people and givine them energy. And I, if my candidate had done this, I would be sitting, with my head in my hand, saying gosh, what did I sign up for? But you’re evidencing no concern, and I find that interesting that you have got such faith in Obama that you’re not…
LL: Wait, first of all…
HH: Everything is a simplification, everything is a maneuver, we’re all wrong. Everyone in the media is wrong, he hasn’t been shifting. That’s a lot of faith, Professor.
LL: Wait, so your candidate is McCain?
HH: No…yes, I am supporting McCain. I was a Romney guy, but I am supporting McCain in the general, yes.
LL: Okay, so your guy, who has flipped in a whole bunch of places, immigration, drilling off coast, that’s the consistent guy? Tax cuts?
HH: I’m not making that argument. My argument is…
LL: Okay, but you said, if you were sitting there watching your guy flip like this, you’d be going crazy. So are you going crazy about your guy flipping?
HH: No, because he has not flipped on the key thing which is the war. Your guy has flipped on all the key things to the left. To me, it’s just the war, and I want to get to that. To the left, with Obama, and believe me, I’m not trying to trap you, Professor. I’m just curious. As one of the intellectuals of the left, your guy was the left, and now he’s trying to become not the left, and you’re trying to assist him not to become the left, which seems to me to be the repudiation of your eager, your condemnation of Hillary’s eager embrace of spinelessness. I mean, this guy is going chameleon on you, and you’re not upset. I find that fascinating.
LL: Yeah, so I am not, first of all, the intellectual of the left. I’m certainly lefty in places, but not in others. Second, I told you exactly where I think that he’s changed. I don’t think you’re right to characterize the list that you did as a list of him changing. I think what you’re doing is playing along with the latest spin about he’s flipping all over the place. I don’t think that’s a true characterization, certainly not true…you said there’s only one issue in this campaign? That’s whether you still agree that the war was a great idea?
HH: No, for me, the most important issue is the war, and that therefore…
LL: Okay, well, let’s talk about the most important issues in this campaign on the Obama side. It’s certainly not telecom immunity.
HH: It’s the war, isn’t it?
LL: It’s what?
HH: It’s the war.
LL: Well, yeah, but again, I don’t think he’s flipped on the core issue of the war in the same way, you know, in the same way you’re going to say McCain hasn’t flipped on the core issues here. I mean, tax cuts, immigration, drilling off the coast, these are pretty important issues he’s flipped on. So you know, if you want to say that we’ve got flipping going on, I’ve said to you I think that there are two places, two places, and if he continues to feed the ability to say that he’s flipping in a bunch of other places, I think the campaign’s in trouble. But I don’t think, in fact, that he has been flipping in a bunch of places except in these two, which I think are, which I think it’s unfortunate that he feeds this suggestion.
HH: Let’s put the campaign aside for a second. I’m curious just to talk with you a little bit about the war. What do you perceive…
LL: Why? I don’t know anything about the war.
HH: Well, you’re an American…
LL: What are you talking to me about the war for?
HH: You’re an informed American, and you write a lot, and Change Congress is obviously got, that’s your new organization. First, let’s tell people about Changecongress.org. Is it .org or .com, Professor?
HH: .org. Tell people what Changecongress.org is.
LL: So Change Congress is a bipartisan movement that’s trying to gather support for fundamental reform in Congress. So it opposes earmarks, it opposes taking money from lobbyists or PACs. It supports the idea of public funding of public elections, and it supports more transparency in Congress.
HH: And Joe Trippi, who I have gotten to know Joe out on the stump is actively involved with you on this. And God speed on earmarks. We can agree on that.
HH: Now let’s go to the war, though. Do you think that international terrorism presents a real and immediate danger to the United States?
LL: Of course.
HH: And do you think the war in Iraq has successfully crushed al Qaeda in Iraq as it existed over the last three or four years?
LL: No. There is more al Qaeda in Iraq than there was before the war. I think that’s the universal consensus as every major study that’s been done of the situation. We’re worse off with respect to al Qaeda in Iraq, and given that we’re not funding the war in Afghanistan the way it has to be funded, probably worse than we would have been at stopping al Qaeda in Afghanistan.
HH: I probably wasn’t clear. I said in the last three or four years, not from before the war, but from the heights of the insurgency 18, 20 months after the war began. Do you think al Qaeda in Iraq has been defeated now, strategically, in Iraq?
LL: But that’s like an arsonist saying look, that building is not burning as badly as it was ten hours after I started it, so therefore, I’m innocent of starting the building on fire. Yeah, maybe from three or four years ago, there’s certainly been, undoubtedly, a drop in a certain number of incidents. So that’s true. But the question is whether we’re worse off with respect to al Qaeda in Iraq is unambiguously we are worse off with respect to al Qaeda in Iraq, when the fundamental mistake here was made, the one you support, that McCain supports, namely the decision to go into war, the one decision that Obama fundamentally opposed.
HH: But do you think the surge has in fact worked?
LL: Hugh, why are you asking a guy about technology about what do I think the surge has worked? I don’t know anything about the military situation here. My understanding is the number of incidents has gone down, sure.
HH: And do you think as a result that the United States is safer or less safe today than it was four years ago when the surge was not in place?
LL: We are still just as unsafe because of the extraordinary amount of furor that this whole war has created. I don’t think the surge has changed that one iota.
HH: You see, that’s what I’m getting to. Obama wants us out in sixteen months. Do you think that will make America safer?
LL: I think finding a way to get to peace in Iraq will make America safer, yeah.
HH: And does withdrawal do that?
LL: Well, you’ve got to find a military expert to ask about that.
HH: Okay, let me ask you about the broader war on terror. To a public intellectual like you, do you spend much time reading about the war?
HH: Have you read The Looming Tower by Lawrence Wright?
HH: Dreams And Shadows by Robin Wright?
HH: A couple more, Nuclear Jihadist or Tim Weiner’s Legacy Of Ashes?
LL: Legacy Of Ashes I’ve read.
HH: Okay, and Robert Kaplan’s books on Imperial Grunts? Hog Pilots, Blue Water Grunts?
HH: Okay, you’ve got two out of six, which is a lot more than most people do. My question is given what you know from The Looming Tower and Robin Wright’s, how does American withdrawal in Iraq make us safer?
LL: You know, I don’t think the question is, I don’t think you can say the withdrawal alone makes us safer. I think what makes us safer is restoring the perception that American is not waging unjustified war. And that certainly is the perception after every precondition for going into the war turned out to be false. So people in the region, people around the world believe we are not justified in going into this war. It was an unjust war, and therefore, waging, continuing to wage an unjust war fuels the other side in their ability to say we are not a just people. Now I believe we are a just people. I believe we believe we waged war for just reasons. But the other side doesn’t believe that, and we give them the Kryptonite to the extent we continue to wage what was an unjustified war.