"Having No Power, I Have No Duty to
Waive Any Freedom I Might Have"
On Sunday evening, I sent Americans Elect advisory
board member Lawrence Lessig a letter asking him to explain his repeated public advocacy for Americans Elect candidate Buddy Roemer.
I and others have found these activities hard to square with Americans Elect's official policy of neutrality, which is codified in Section 10.0 of the corporation's Rules (pdf link — emphasis mine):
Until the Americans Elect ticket has been selected by majority vote of participating Delegates in the Nominating Round of voting, Americans Elect shall be neutral with respect to all Candidates and shall not endorse, oppose, advance, or advocate any particular Candidate.
I posted my challenge as an open letter, and advised Lessig of the same.
Yesterday, Lessig responded as follows (emphasis mine). Elliot Ackerman, referenced in Lessig's note, is the son of Americans Elect founder and lead investor Peter Ackerman, and also is the COO of Americans Elect.
Thank you for your letter, and especially for
the decency in the manner in which you have framed your criticism.
When I was asked to join the Advisory board,
I explicitly asked about whether that would preclude me from advocating on behalf of anyone, including candidates for an AE position. I was told it did not. That position
was confirmed to me by Elliot Ackerman in
My understanding of an "Advisory Board" is precisely the same: Members are asked to
give their advice, but not their loyalty. As a Member, I am free to criticize AE if I believe they are behaving badly. As a Board Member,
I would not have that freedom (to the extent it was inconsistent with a duty of loyalty). Giving up that freedom would be fair (again, were I a member of the Board) because Membership
on the board would give me power in the organization. But having no power, I have no duty to waive any freedom I might have.
Let me know if that has clarified things. I don't think this distinction is "Clintonian": By that, you mean that the actions have the same effect. But my actions don't have the same effect. I have no power in AE. I have no rights in AE. I therefore have no duty to waive any liberty I otherwise have as a citizen.
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Actually, by "Clintonian," I mean the tendency
to rationalize a given behavior by appealing to a hair-splitting interpretation of the "law" — in this
case, the Americans Elect neutrality policy (which most broadly is embodied in Rule 10, above) — that skews heavily to the letter of the law rather than to its spirit.
Perception is reality. And what has been clear to me, from the beginning, is that the official and actual public neutrality of Americans Elect — including
the public perception that Americans Elect is neutral — is key to the integrity of the whole Americans Elect project. That citizens simply are not going to trust and take seriously an organization that pays lip service to "opening up the political process" and putting full voting power in the hands of the people, and that claims to be interested solely in creating the structural "empty vessels" of an additional 50-state
ballot line and a Web-based nominating platform — but that also seems to be designing these vessels to carry only a certain kind of political cargo.
So the ideological "stacking of the deck" guaranteed by Americans Elect's "unity ticket" mandate — in which the corporation favors a "centrist" Republican-Democrat ticket — always has struck me as wrongheaded. (Lessig
and I agree, on this point.)
But the double standard of applying the neutrality mandate embodied in Rule 10 only to the relative handful of "directors"and "officers" (see Sections 4.12 and 6.1 of the Bylaws; pdf link), but not to the 100-plus members of the Board of Advisors — individuals who frequently have been the public faces of Americans Elect in the media, and whose names and institutional affiliations Americans Elect displays prominently on its Web site, in an effort to enhance its public credibility — this, too, is an impartiality disconnect.
The truth is: Even in the case of Americans Elect's directors and officers, the neutrality policy is only wink-wink (see Christie Whitman). But the idea should be to go "above and beyond," in assuring the public that Americans Elect is neutral and that delegates hold all the power — not to design and implement elaborate layers of political bet hedging such as a "neutrality" policy that, in practice, hasn't been made to apply to anybody on the masthead.
That the COO and son of the founder of Americans
Elect disagrees — "nothing about your membership
as a member of our Advisory Board prohibits you from supporting any candidate you wish" — is telling.
Telling, too, that this "neutrality gap" with respect
to the Board of Advisors is nothing that the "free to criticize Americans Elect" Lessig — or, apparently, any other Americans Elect advisory board member — has deemed "behaving badly," to borrow Lessig's phrase.
Telling that Buddy Roemer, too, thinks that Lessig's non-neutrality is A(E)-OK.
And telling that nowhere in Americans Elect Rules or Bylaws is the behavior of the advisors or the Board of Advisors of Americans Elect constrained in any way.
They aren't even mentioned.
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A major reason why Americans Elect now has had
to cancel all three of its scheduled primary ballots,
for lack of sufficient public support for any Americans Elect candidate in particular, and for the Americans
Elect process in general, is this: Americans Elect is not seen as a neutral broker. Citizens are not motivated to participate, when they don't believe and have confidence that their voices and their votes have full weight but, rather, believe that they have been "pre-subjugated" to the will of insiders with money, power and media access.
Americans Elect is not immune to this fundamental law
of political psychology.
Had Americans Elect instead created an unambiguous and airtight "public neutrality" plank that applied with equal force to Americans Elect directors, staffers and advisors — and had Americans Elect implemented a zero-tolerance policy on violations of this plank — Americans Elect would not be where it finds itself today. Of this I am sure. Indeed...
If Americans Elect hopes to recover any
possibility of a sustainable future for itself —
or, perhaps, any future at all — it will have to abandon its "centrist" ideological pretensions
and get serious about neutrality, along the lines
I suggest here.
Lessig sees it differently. He says that his "duty"
to Americans Elect — including his duty to abide by Americans Elect's neutrality policy (which he frames as his duty to "waive any liberty I otherwise have as a citizen") — is limited by his "power in the organization."
Lessig has "no power," he says, and "no rights" —
by which he means that, since he's not a member
of the Board of Directors of Americans Elect, he has
no voting rights and power — thus he has "no duty."
It's not quite that simple.
The truth is, Lessig and other members of the Board
of Advisors have considerable soft power.
In pubicly listing Lessig and other advisors, Americans Elect is saying — indeed, promoting — to the general public, to prospective delegates and to the media that these advisors are "on the team" at Americans Elect.
This being the case, it's reasonable to assume that all three audiences — general public, prospective delegates and media — are looking to the statements and actions
of Lessig and other members of the Board of Advisors of Americans Elect, to help them determine:
- Who is Americans Elect?
- How deeply — if at all — should I
So, when Lawrence Lessig or Mark McKinnon, for example — people who, in addition to their status as Americans Elect advisory board members, also are public figures with public reputations and outsized national media access, giving them the potential to have enormous influence and, yes, power in shaping public and delegate and media opinion about the sort of thing that Americans Elect is...
When Americans Elect advisors like Lessig or McKinnon take to MSNBC or to The Atlantic or even to Twitter (Lessig has 190,037 followers) and give the nod to Buddy Roemer — or to David Walker — or to Jon Huntsman — or to any other specific candidate or type of candidate,
it can't help but telegraph and reinforce to delegates
and to potential delegates the suggestion that certain decisions about the nominee pool already have been made.
And, for those delegates and potential delegates who don't happen to share the politics being promoted, the candidate or ideological advocacy being engaged in by these Americans Elect advisors can't help but have a chilling effect on the desire of these citizens to participate in the Americans Elect process. In effect, it robs them of their power.
And that matters. It matters very much.