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Authors: Lawrence Lessig

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BOOK: One Way Forward
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The inevitable conflict came to a head over an extremely powerful ad that Adam had developed for Change Congress. The ad targeted opponents of Obama’s “public option” for health care reform (this was before Obama himself became the “opponent-in-chief”). It was beautifully conceived and produced, and was powerfully messaged. And as a liberal who supported the public option, it moved me profoundly. It was easily among the very best political ads that I have seen.

But it was too partisan. It didn’t focus the audience on the message that we (or, it turned out, I) were pushing—about the corrupting influence of money. Instead it focused the audience on the compelling and powerful case for the public option—no doubt an idea opposed by special interest money, but money wasn’t the ad’s focus. And when I complained about this misfocus, Adam explained that he didn’t believe it was possible to run a cross-partisan movement. Messaging, he told me, is always targeted. It must always be specific to the interests or values of the audience. Maybe technology could allow us to perfectly separate the messaging we gave to our conservative followers from the one we gave to our liberal followers. But a television ad can’t do that. And if it can’t, as he explained to me, it has to take sides.

The business model of hate had arrived right at my own back door.

I didn’t want to give up so easily. I told Adam that his new organization could pay for the ad and use it to launch its work. (I understand secondhand that it was among the most successful ads the Progressive Change Campaign Committee has ever run.) And we continued (eventually sans Adam) to putter along with the goal of building a cross-partisan base. But again and again, like a hammer on my thumb, I’d see just how right Adam was. Whenever I would send an e-mail to our list praising, for example, something great the Tea Partiers had done (and trust me, non–Tea Partiers, there are plenty of examples there), we’d get a huge drop-off in members. We on the Left had no patience for praise of the Right, even if the praise was for actions that we on the Left should like!

This is the business model of hate—or, at least, the business model of polarization. And while it might not matter much if it were limited to activist organizations like mine, it isn’t. Indeed, perhaps the biggest challenge we face as a republic comes from the fact that the business model of hate operates within every modern mediating institution—most prominently, the media itself.

As competition within media has intensified, so the drive to polarize has increased as well. Commercial media needs devoted listeners; devotion is most extreme at the extremes. If you want to whip up a frenzied following, follow the model of Fox News or MSNBC or Current TV. Tune away from the likes of CNN or NBC: They are antiques from the age of reason. We’ve moved far beyond that age.

It wasn’t always like this. When choices were fewer, the few played to the middle. In 1980, more than fifty million Americans watched network news every night. By 2010 that number had been more than halved.
23
Those earlier news shows prized anchors like Walter Cronkite and Peter Jennings. But a Cronkite would flop on Fox or MSNBC. Not enough sizzle, or attitude. The trend today is toward the niche—a smaller, maybe more profitable, corner of the market that can reliably and effectively drive advertising sales and, hence, profit. We watch what we agree with.
24
We surf to sites we agree with. And while opposing ideas are just a click away, most of us never click.
25

This business model is not just for the media. Politics, too, follows the business model of hate. That was Meckler’s point. Legislatures craft districts to create as many “safe seats” as possible—seats practically guaranteed to one party or the other. That means the only real challenger that an incumbent could face is one from his own party. But typically, the only challengers who could beat an incumbent are ones from the more extreme wing of the incumbent’s own party. Thus, Democratic incumbents in safe Democratic seats worry about left-wing challengers; Republican incumbents in safe Republican seats worry about right-wing challengers. And why are the extremists the most likely to prevail? Because—in part, at least—the extremists are able to raise campaign funds more easily than those in the moderate (read: squishy) middle. A militant base, on either the right or the left, is a reliable base upon which to build a political campaign. So campaigns become militant. The rhetoric becomes more extreme. And as the pressure to raise money increases, the pressure to polarize increases as well.

Again, it wasn’t always like this. I’m not saying that there was a golden past, a long-gone utopia, where only reason and principle guided politics and social life. We’ve always had extremists. Indeed, we’ve celebrated—and constitutionalized—extremists. “The press” referred to in the First Amendment’s “the freedom of the press” clause—the press of 1790—thrived on extremism and partisanship. That pamphlet press looked more like the blogosphere today than the
New York Times
of 1970. There has always been a business model of polarization. We should not pretend—as Al Gore’s book
The Assault on Reason
(2007) seems keen to suggest—that we were all once statesmen, and then television turned us into crack addicts.

But the difference is that in those times, there were also mediating institutions that could, for a time at least, put aside the business model of hate and do the work of the Republic. There was a Congress that wasn’t campaigning full-time. There were social organizations that asked not what could be done for the Democrats but, instead, what could be done for the country.

No more. There was not a single moment in the life of the 111th Congress when the campaign was over. From the very first day, members were raising money for the next election. From the very first vote, the minority was scheming its return to majority power.

So, too, outside of Congress. There was not a single moment after the inauguration of Barack Obama when Fox News didn’t play to its base. And nothing could have made MSNBC or Comedy Central happier, since, having lost George Bush as a target, they could now shift to a network—Fox News—as a target.

And so, too, with us. We all have joined our i-enabled organization of choice: the Tea Party or MoveOn, Drudge or Huffington Post. We all get our daily fix of fury, from e-mail lists or podcasts, from news sites or blogs. We tune in to the message we want. We tune out the message we can’t stomach.

Indeed, as Eli Pariser so powerfully demonstrates in his 2011 book
The Filter Bubble,
the machines themselves help us tune out. There’s no such thing as “a Google search”; there’s only “my searches on Google.” Google remembers the sort of stuff I’m interested in. Those interests help determine the search results that Google gives me. And thus are my search results different from yours: once again, the business model of polarization, made perfect by the amazing Google.

But so what? you might ask. Why isn’t this passionate, polarized politics just what politics needs? Isn’t this just vigorous debate?

Exactly right. It is certainly correct that we shouldn’t worry (or, worse, regulate!) in response to the business model of polarization unless it is actually doing harm. So what is the harm? Why should anyone care? How is the Republic weakened by the strengthening of extremism?

We can put the answer in a single line: The business model of polarization turns #WeThePeople into #WeTheGeeks—and not the cool, techie geeks who have come to rule the consumer universe, but the decidedly uncool political geeks who are obsessed with the horse race of politics, with the pathetic drama of power, but who care not a whit about building a republic that is “re:public”—as in “regarding the public.”

For here’s the forgotten fact about America that all this talk of polarization obscures: We, the People, are in fact not polarized. If you focus on the attitudes of Americans—not politically active Americans, or voters, or even registered voters, but instead all those people plus the rest of us—our attitudes and politics fall on a normal distribution. A little bit more to the left than most people think, with the extremes lying in the tails of that distribution.
26

But as politics becomes more polarized, that normal middle becomes more and more silent. For the average American, the ravings of the talking heads on Current TV, MSNBC, or Fox News are just alien. They listen, but they can’t relate. And so they simply tune out, leaving the job of politics to the tiny minority of politically active Americans, who dominate the viewership of those networks and who dominate political giving.

Our current politics thus shrinks the We. “We, the politically active,” turn out to be a tiny fraction of “We, the People.” And thus what they, the government, does has little connection to what “We, the People,” would actually want.

So “We, who care about this Republic,” have every reason to want to change the current dynamic of American politics. But in doing that, we face this critical dilemma, captured best, perhaps, in a “good news/bad news” story:

First the good news: For the first time in a hundred years, we have the technology to empower ordinary citizens to be engaged and passionate about their government again.

Now the bad news: The business model for this engagement, of the entities that build these movements of passion, whether for profit or not for profit, make it extremely hard to imagine them ever working together on anything.

The DNA of America is a house divided. A Civil War without guns. Just at the time technology enables us the most, the business model of hate disables us the most.

Unless we can find a way around it.

Chapter 4

 
Potential
 
 

In Chicago, in January 1973, representatives of Major League Baseball voted to allow the American League to adopt one of the dumbest rules in baseball: the designated hitter rule. First suggested in 1906 by the legendary Connie Mack, the rule permits a team to designate a hitter to substitute for the pitcher. When the team is at bat, the pitcher stays in the dugout. When the team’s on the field, the DH stays in the dugout.

This rule was inspired by the fact that pitchers are not typically great batters . (Babe Ruth is the most famous exception.) In 1973, baseball was looking for a way to make the sport more interesting. Specialization would, as Adam Smith had predicted about markets in general, improve the overall efficiency of a team. In particular, it would increase the “offensive punch that baseball needed to draw more fans.”
27
In 1972, nine of the twelve clubs in the American league “drew fewer than a million customers.”
28
The league was desperate to try anything.

Whether you like this rule or not (and you might guess my view on the matter), here’s the obvious point I want you to see: that although those representatives of the Major League Baseball teams met as competitors, the deliberation about the DH rule was not a competition between them. It was not treason for Gene Autry, owner of the (then) California Angels, to agree with Charlie Finley, owner of their rival, the Oakland A’s. It was not even bad form. The A’s and the Angels wanted to compete against each other. Each side wanted to win. The discussion the league was having, however, was not a game of baseball. It was a discussion about the rules of baseball. Proponents of the change thought the game would be better if the rules were different. They didn’t promote the change to give one team a special advantage.

Deliberations like these are constitutional. Not in the sense that baseball has a constitution, but in the sense that the debate is about the rules that constitute the game. The discussion is not about who would win the game; the discussion is about which set of rules would make the game better.

We need just such a constitutional conversation today. Not about baseball but about our government. About the rules by which our government gets constituted. About the conditions under which it demands our trust. Not a conversation about whether liberals or conservatives are right. I have my view; you have yours. But a conversation about the rules within which the Right or the Left gets to translate its view of right into law.

This is the difference between constitutional politics and ordinary politics. And this distinction is critical to everything that follows. Because there’s no reason, in principle, why people who disagree fundamentally about ordinary politics can’t agree fundamentally about constitutional politics. That’s not to say that they will agree. We all would say in the abstract that votes cast in an election should be fairly and accurately counted. That’s different from saying that all sides in a particular election would favor a recount of Miami–Dade County. Opponents in a political battle use whatever means they can to win. But even so, it is still possible for us to engage in a conversation with people with whom we disagree about what the rules of the game should be, independently of who is likely to win.

Yet to do this in the current political environment is extraordinarily difficult. If we’re to do it, we need a clear symbol or tag—a kind of Red Cross or UN flag—that we could show to people on either side and expect them to understand it to say:

I am here to have a constitutional conversation. I’m not here to convert you. I respect your position, even if I disagree with you. I hope someday to have a chance to persuade you of the error in your ways. That’s not my aim today. I aim today simply to talk about whether the system under which our differences get resolved is one we can trust or one we should change. I aim to talk about the rules of the game, and not about which side should win.

 

This is, no doubt, a complex idea. It can’t be explained in 140 characters. Yet if we’re to make progress in saving this Republic, we need to find a way to express it clearly. And then we need experience in practicing it.

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