Last Saturday I went down to the Occupy Portland camps to have a look at what was going on there. This was the last day of occupation at the initial camp before the city ordered their eviction later that night. I’ve made my share of jokes about the Occupy movement, and I have a hard time taking any political movement too seriously, but I did want to give it a fair shot. As a friend of mine said in an “Appeal to Libertarians Concerning Occupy Wall Street,” we share significant common ground and shouldn’t dismiss the movement:

But, hold on a second. Last time I checked, aren’t we against bailouts and crony capitalism (a.k.a. capitalism), too? Remember how we have gay friends, and immigrant friends, and how we like freedom of expression, and we hate thug cops, and all that good stuff?

It was in that spirit that I walked through the camp. So first some good things, then some things I can’t get on board with.

One encouraging observation from the camp was the almost complete absence of signs promoting politicians. This is probably due in part to the fact that Obama faces no serious challenge to the Democratic nomination, so there’s no one campaigning hard left for Occupiers to get behind. But still, a lot of the people protesting were probably pretty excited about Hope and Change a few years ago, and today they are disillusioned with government, or at least with the current crop of politicians. Who knows how long it will last, but it’s heartening to see.

I didn’t notice any signs for Lyndon LaRouche, so hey, progress! There were limited signs of support for Ron Paul, presumably for his strong anti-war and anti-bailout stances. Unsurprisingly, there was nothing for Gary Johnson. He’s a successful two-term governor of a Democratic state. He’s anti-war and wants to cut defense spending. He’s liberal on abortion, same-sex marriage, and drug legalization. He’s against crony capitalism. He’s Ron Paul with actual executive experience and none of the social conservative baggage. Unfortunately he’s running as a Republican and not receiving any media attention, so he’s not getting any traction here. Or anywhere else for that matter. So if any Occupiers feel like getting behind a quixotic presidential campaign and totally confusing the narrative, well, here’s your guy.

Another interesting thing about the movement is its experiment in spontaneous order. A bunch of people setting up semi-permanent camp in a public park creates all kinds of logistical problems, like resolving conflicts, finding lost people, and taking care of basic sanitation. What it reminded me of is Hernando de Soto’s description of how extra-legal tent cities develop, which he analogizes in The Mystery of Capital to putting on your shoes before your socks:

Consider what it takes for a new migrant from a rural area to create a home for his family in a shantytown outside a large city. First, he not only has to find a spot for his house but also has to occupy the land personally, with his family. The next step is to set up a tent or shelter made from, depending on the country, straw matting, mud bricks, cardboard, plywood, corrugated iron, or tin cans — and thus stake out a physical claim (because a legal one is unavailable). The migrant and his family will then gradually bring in furniture and other household items. Obviously, they need a more livable and durable edifice. But how to build it without access to credit? They do what everyone else does — stock solid building materials and begin to build a better house, stage by stage, according to what kinds of materials they can accumulate.

Once the inhabitants of these new buildings have organized enough to protect their holdings or the local authorities take pity on their deprivation, they can bring in pavement, water, waste disposal, and electricity — typically at the cost of having to destroy parts of their houses in order to hook up the utilities. Only after years of building and rebuilding, and saving construction materials, are these owners finally in a position to live comfortably.

The Occupiers were living out the first parts of this process. I was impressed by the ingenuity required to set up a semi-functional community in the middle of a downtown park. Yet the protesters also demonstrated how the basic rudiments of capitalism — secure property rights and an accessible legal system — make it so much easier to get things done and can make the poor immensely better off. To be fair, this isn’t the sort of capitalism that most of them are protesting, but from a global perspective the Occupiers have to acknowledge that they have it pretty good. I’m not asking for three cheers for capitalism, but how about just one?

It’s signs like the above, and the “Capitalism is Destroying Our World” sign at the top of the page, that ensure I’ll stay politically homeless. The anti-intellectualism and social conservatism of the Tea Party prevent me from getting on board with that group. Similarly, no matter how much I agree with Occupiers about some of the flaws in our current system, I can’t ever march under banners like these. Capitalism and the pursuit of profit remain the most reliable methods we have of improving people’s lives. The trick is to differentiate between profits earned by creating value and profits taken via subsidies, tax breaks, and regulations that cripple one’s competitors. I realize it’s trite to point out the irony of people damning capitalism while tweeting from their iPhones, but what else can you do?

“People Not Profits” is not the answer. “People And Profits, Not Subsidies” is a mantra I could get behind. Alas, not catchy.

“Corporate personhood is not the issue here, Dude!” — What I feel like yelling at a lot of people lately. If you follow the Occupy hashtags on Twitter or walk through the protests you hear a lot of anger directed at corporate personhood, and it’s as facepalm-inducing as the “People Not Profits” signs.

As Pascal-Emmanuel Gobry helpfully explains, corporations are persons, not people. This means that “they’re recognized by the law as entities that can have a name, sue in court, be a party to contracts and have property.” And that is incredibly important. This doesn’t mean that corporations must be given all the rights enjoyed by flesh and blood people. The law is perfectly capable of recognizing different rights for different types of persons. See for example the different treatment of natural born citizens, naturalized citizens, non-citizens with visas, and undocumented workers. They’re all legal persons; they don’t all have the same rights. If the government has a compelling interest in restricting rights of corporations, it can do so.

Since corporations are persons, not people, why give them rights at all? Another way to ask the question is, why should people forfeit their rights just because they organize in the corporate form? Corporations would be useless if they did. It’s emphatically a good thing that the government cannot seize corporate assets without due process. It’s emphatically a good thing that it can’t take corporate-owned land for public use without paying just compensation. And yes, it’s emphatically a good thing that corporations have at least some speech rights to express the interests of their shareholders.

Which brings us to the real issue here, Citizens United. Reasonable people can disagree about where to set the limits on corporate speech rights, but this case was a fairly perfect example of the sort of speech the First Amendment was designed to protect. Citizens United is a non-profit advocacy group funded mostly by individuals that sought to air a movie criticizing a presidential candidate. If that’s not protected speech, what is?

The Court arguably ruled more broadly than it needed to in Citizens United, but it’s worth pointing out how much didn’t change as a result of the ruling. Corporations are still forbidden from contributing to political campaigns. Citizens United addressed the relatively narrow question of whether corporations could pay for broadcast ads mentioning a candidate by name 60 days prior to a general election or 30 days prior to a primary. That’s it. Before and after Citizens United, corporations had and still have many other ways to speak politically. They can form PACs. They can broadcast issue ads. Wealthy individuals who work for or own corporations can spend as much of their own money as they please. Corporations can promote their messages in other media. Hell, they can become media by purchasing a newspaper or a TV station. And that’s just speech; this list doesn’t even get into the numerous other ways corporations can gain influence. About half of the states were already operating without laws similar to those overturned by Citizens United.

I happen to think that Citizens United was decided essentially correctly, but I also don’t think it’s quite the disaster for progressives that some of them think it is. It’s worth noting too that the decision also extends rights to unions and non-profits whose speech rights had also been restricted.

Fundamentally, beyond limits on direct campaign contributions and requirements of disclosure, it’s just not easy to limit expenditures on speech without violating First Amendment rights of deserving speakers. Even Lawrence Lessig now says:

Of course money equals free speech. And we should ask the people who are railing against the idea of money being free speech: “What if congress passed a law, and the Supreme Court allowed it, that said ‘Nobody can spend more than a thousand dollars challenging an incumbent.’”? You’d say, wait a minute, that’s a pretty effective way to guarantee an incumbent will always win, and I want to use my money as a way to speak freely about my desire to challenge the incumbent.

There’s no simple solution for reducing the influence of money on politics. Lessig proposes a sort of voucher system of public financing. Libertarians say we need to reduce the scope of government so that its favors are less important. Regardless, while Citizens United may work as a symbol for too much money in politics, I take Lessig to be right about this much: We’re better off finding new ways to enable speech than seeking new ways to restrict it. It’s disappointing that one of the more popular ideas among the Occupiers is a desire to reduce the scope of the First Amendment.

One of the most frequently noted difficulties with the Occupy movement is figuring out exactly what it’s fighting for. The spontaneous order that it has successfully used to organize tactics has been less useful for building consensus about political ends. The camp in Portland became a place to air a mish-mash of complaints. There’s nothing wrong with that per se, but it makes it hard to hold together a coherent protest. Protests work best when there are specific wrongs to be righted. Stop denying people’s right to vote. Stop denying people’s right to marry. Stop executing people when there is untested DNA evidence that could exonerate them. Or in this example of a sit-in that worked, stop your university from investing in companies that do business in Apartheid era South Africa. These are demands that can be acted on and goals that can be met.

It’s not clear that the same is true for Occupy, whose goals seem to be much more nebulously grouped around a loose concept of economic justice. At what point does the economic system become sufficiently just for protesters to stop occupying? Without articulated aims the movement never gets to declare victory and go home. Already, in reaction to evictions, it’s hard to tell if occupation is a means to an end or if it’s becoming an end in itself. What are the occupations accomplishing now that couldn’t be accomplished through regular meetings, smart online advocacy, and well-planned protests?

Post-eviction, the best thing going for Occupy Portland is that they provoked a response from the police. They got a chilling photo of cops in riot gear shooting pepper spray into the face of an unarmed woman. Things are even uglier in other cities. You look at those photos and videos and whose side are you going to be on? I have my share of disagreements with the Occupiers, but I’m absolutely disgusted by cops using excessive force against non-violent protesters.

But longer term, the movement needs to figure out what it’s doing. Prior to the evictions last weekend it was a point of pride for Occupy Portland that it was only protesting on public space. And while it’s a dubious proposition that the right of peaceable assembly includes setting up indefinite camp on public land, I’m all for people getting out there and protesting crony capitalism. Protest away! I was glad to see the Tea Party emerge and I’m glad to see the Occupy movement echoing some of the same themes.

But please, keep it to peaceful protests in public venues. I can’t tell you how much sympathy I lost for Occupy Portland when I saw the mob shutting down private bank branches, and from scanning local tweets I wasn’t the only one. Interfering in the private commerce of ordinary individuals is no way to advance a cause. An appeal to the Occupiers: By all means, persuade the customers of big banks to switch to local credit unions, but don’t become so certain of your views that you feel you have the right to force them on your fellow citizens.

Ultimately, the Occupy movement is going to have to accept that it doesn’t speak for the 99%. The 99% is divided. Support for Occupy is only around 33%. The consensus that groups can arrive at in a General Assembly is much greater than what they can pull off among the general population. Achieving anything in practice is going to require the much more prosaic business of working changes through the democratic process. Julian Sanchez says this more eloquently than I could:

[...] if disagreement is real—if large numbers of my fellow citizens sincerely hold very different views about what policy is best—then protest, however vital as a consciousness raising tool, can only be a preparation for the more humdrum enterprise of convincing your neighbors with sustained arguments (or being convinced yourself), electing candidates, and all the rest. To imagine protest not as prologue to politics, but as a substitute for it, suggests a denial of the reality of pluralism, and an unwillingness to find out what democracy actually looks like.

I’m afraid the alternative is going to be a self-defeating conflict between Occupiers and anyone who disagrees with them or is unwilling to sacrifice for the movement. There is some sign of this in the indifference shown to the many Portlanders, almost surely in the 99%, who couldn’t get to public transportation or their bank branch. Or in the decision of Occupy DC protesters to forcibly prevent people from leaving an Americans for Prosperity dinner where they listened to contrary views. Or in this reaction to Oakland workers who just wanted to get past the protest and to their jobs:

“These people tried to kill us. I can’t believe they are being that aggressive over a paycheck, over your own people fighting for you.”

If I counted myself among the Occupiers, I’d be looking very closely at the Tea Party right now. Despite all the jokes directed at the Tea Party it has endured as a political force. What it hasn’t done is produce a credible candidate for the presidency. Here’s Conor Friedersdorf explaining this failure:

[...] the actual tea party isn’t savvy. It overestimates its clout within the GOP, fails to appreciate the many obstacles to winning a general election, let alone implementing its agenda, and is therefore careless and immature in choosing its champions. It elevates polarizing figures of questionable competence like Sarah Palin because doing so is cathartic. [...]

Why couldn’t the tea party produce a viable candidate? Its partisans put fiery rhetoric ahead of substance, judged GOP politicians based on the extravagance of their promises more than what they’d actually accomplished, failed to demand of its champions some baseline level of competence, and insisted on pols who deliberately piss off outsiders rather than Reaganesque communicators intent on converting them. Tea partiers got drunk off the pleasure of hearing their prejudices echoed. They’re now waking up to face their hangover. And his name is Mitt Romney.

Is Occupy up for the challenge of doing better?