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LESSIG LEVELS WITH OBAMA

Lawrence Lessig

Professor of Law, Harvard Law School; Director of the Edmond J. Safra Foundation Center for Ethics

On The Rage of Gibbs

White House Press Secretary Robert Gibbs has been slapped around silly by commentator after commentator, decrying his anti-Lefty rage. But as I read the battle, it seems to miss a pretty fundamental point:

It's certainly not fair to criticize Obama for not being a Lefty. He wasn't ever a Lefty. He didn't promise to be a Lefty. And there's no reason to expect that he would ever become a Lefty.

But Lefties (like me) who criticize Obama are not criticizing him for failing our Lefty test. Our criticism is that Obama is failing the Obama test: that he is not delivering the presidency that he promised.

When Candidate Obama took on Hilary Clinton, he was quite clear about what he thought about the way Washington works. And he was quite clear about why he was running for President. As he said:

[U]nless 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. And the reason I'm running for president is to challenge that system.

Read it again: "The reason I am running for president is to challenge that system."

Or again:

[I]f we do not change our politics -- if we do not fundamentally change the way Washington works -- then the problems we've been talking about for the last generation will be the same ones that haunt us for generations to come.

Or again:

But let me be clear -- this isn't just about ending the failed policies of the Bush years; it's about ending the failed system in Washington that produces those policies. For far too long, through both Democratic and Republican administrations, Washington has allowed Wall Street to use lobbyists and campaign contributions to rig the system and get its way, no matter what it costs ordinary Americans.

Or again, as he asked, again and again:

Do we continue to allow lobbyists to veto our progress? Or do we finally put our national interests ahead of the special interests and address the concerns people feel over their jobs, their health care and their children's future?

Or again, as he explained:

We are up against the belief that it's OK for lobbyists to dominate our government -- that they are just part of the system in Washington. But we know that the undue influence of lobbyists is part of the problem, and this election is our chance to say that we're not going to let them stand in our way anymore.

Or perhaps put best:

We need to challenge the system... 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.

Once Obama clinched the nomination, however, his rhetoric changed. And as he came to office, his focus, as a senior administration official explained, was to clean up the Executive, and leave to Congress the problem of cleaning up Congress (begging the obvious question: Does the president believe the problem with Washington is the presidency, and not Congress?)

Since coming to power, Obama has pushed just one piece of legislation that would have any effect at all on the power of lobbyists over Congress. That bill has not passed, and even if it had, it would have changed nothing in the lobbyists' power. He has not even indicated that he would support the only substantial reform of lobbyists power with support in Congress today -- the Fair Elections Now Act. Indeed, "congressional reform" doesn't even merit a mention on the "Additional Issues" page of whitehouse.gov (though "sportsmen" does).

Obama's strategy as president has not been to "change the way Washington works." Rather, he has pushed reforms in the same old way, with the same old games. As Glenn Greenwald put it, speaking of health care:

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.

Now I'm not sure whether it is leftist, or rightist, or centerist to govern through special interest deals. It certainly is Clintonist. It's precisely the administration that Hillary "lobbyists are people, too" Clinton promised. And were she president, and had she done exactly what Obama has done, then no one, I included, would have any reason to criticize her.

But beefed up Clintonism is not what Obama promised. He promised to "take up the fight." His failure to deliver on that critical promise -- the promise that distinguished him from his main primary rival -- or even to try, is a failure that everyone, Lefties included, should be free to complain about without suffering the rage of Gibbs.