Since the rally and the election, several people have asked me what the rally was about. Some of these people asked out of complete ignorance, others in a more confrontational way. I realized that I didn’t have a great answer for what the rally was about. For some it was a cult of personality thing. For others it was an opportunity to hang out with fellow members of the internet culture. As a political action, it’s hard to point to much success though.

The rally didn’t really work to unify people. It was kind of an un-political rally. Like the NoSQL database movement, defined by what it is not rather than what it is. The rally was not about confrontational politics, sound bytes, 24-hour news cycles, and a divisive approach to our nation’s challenges. It was not about party politics, or third-party politics, or any specific political agenda. To the extent there as an agenda, it was a media agenda. But that’s just Jon Stewart’s agenda, because he is a media personality criticizing media behavior. Based on the number of Reddit signs I saw, most people at the rally have already opted out of the mainstream media.

The question is what they can opt into. Stewart may have organized the rally, but he is ill equipped to lead a movement. And there were a lot of people at the rally, myself included, who might be ready to join a movement. The problem is that movements are about branding, and branding is about media, and if your goal is to opt out of the current media structures, how do you built a movement with a voice? If your goal is to avoid extremism, how do you get people enthused enough to accomplish anything? And what would the movement be trying to do anyway?

As I thought more about this, I think the desire of most people at the rally is for more fact-based, moderate, and cooperative politics. But what policies or actions will actually bring that about? The best I’ve been able to come up with is to work to end gerrymandering and to improve election structures. Gerrymandering leads to “safe” districts, which are then decided by primary voters, who favor uncompromisingly partisan candidates. The simplistic “first past the post” voting schemes used for congressional and state legislative elections put a heavy emphasis on party politics and encourage gerrymandering. People who study elections have lots of superior systems for both districting and voting, but only a handful of elections in the United States use them.

The Rally for Sanity demonstrates that there is a large group of people interested in seeing more moderate and constructive politics. I think the best way to make that happen is with election reform. But where does that lead? The most compelling election reform group I find is FairVote.org, but I don’t feel like they have a lot of momentum. Election reform is often a fairly technical idea. Will many of my fellow rally-goers be interested?

What activity to you see coming out of this rally, or coming out of the silent majority of frustrated moderate American voters? How are you supporting improved political discourse?

One frequent claim is that we who oppose non-competes are only doing it to emulate California. To whit, in the comment thread of Amrith Kumar’s post “In defense of employee non-compete agreements” he claims

I also have to agree with you that the only arguments that have been advanced in favour of eliminating the non-compete are the ones that as you point out amount to “CA doesn’t have it, and Google and Facebook are in CA”.

But that is far from the only argument. In fact, Amrith immediately goes on to link to a Boston Globe article that discusses the research of Matt Marx, a recent HBS PhD and now faculty member at the MIT Sloan School, who studied non-competes and found three compelling (to me) problems with them:

First, he looked at Michigan. During the decades of that state’s greatest economic growth, from 1915 to 1985, noncompete agreements were illegal. In 1985, the law changed – and Marx found that inventors were suddenly less likely to move from one company to another, and specialized inventors were much less likely to move. (I’d observe here that the last 25 years in Michigan have not been a good era to emulate.) Marx has also surveyed inventors in the speech recognition industry around the country and found that about 25 percent of those who were bound by noncompetes often took “occupational detours’’ into other technology sectors reluctantly, to avoid getting sued.

Finally, Marx’s research has found that employees bound by noncompetes tend to take jobs with large companies rather than small start-ups – in part because they believe that a larger company might be able to defend them against a potential lawsuit. (Also, as with the Conduit example, small companies are less likely to take a risk with employees covered by noncompetes.)

There seems to be a persistent desire by defenders of the status quo to tar all supporters of change as mere California fan-boys, desperately trying to emulate a state they envy. In fact, there are many compelling reasons to be opposed to non-competes, even for a state that favors more conservative technology startups like enterprise software and biotech.

My own argument comes in three parts, none of which mention Facebook:

1. Currently the system is broken – Individuals are prevented from taking jobs, they are required to sign agreements they do not understand which limit their future potential. For engineers, this starts with their first job out of school, if not before, and likely continues through their entire career. What little understanding they have of their rights comes from anecdotes and scaremongering from their peers and the occasional human resources representative.
2. Economics is insufficient to solve the problem – Employees do not generally have collective bargaining opportunities. While it is possible to avoid non-competes, it is difficult at best and likely career limiting. Employers, on the other hand, have little incentive to reduce their use of non-competes. They could be accused of acting outside the fiduciary interest of their investors, for example. And so we have the current stable situation, where everyone requires strict non-competes, whether they have any ability to or intention of enforcing them.
3. A middle-ground cannot be created with more complex legislation – One of the biggest problem with non-competes is their chilling effect. I only know one person who ever had a non-compete legally enforced and supported in court. But no startup, and few individuals, are interested in initiating a court battle over employment. It is too distracting, too costly, and all together too risky. Legislative complexity favors organizations with large sophisticated legal teams over individuals. Adding more complexity to the legislation cannot resolve the chilling effect. We need simple legislation that all employees can understand.

The only thing I look to California for is validation that the extreme position, basically banning all non-competition agreements, does not lead to some kind of entrepreneurial apocalypse. We can see rather that non-competes are a minor aspect of the regulatory environment, when it comes to venture funding and venture success.

I hope you agree that the current system is broken, that it is not going to be solved through laissez-faire economics, and that more complex legislation is not the answer. That is why I support legislation significantly restricting the use of non-competes, to the point where every employee will be able to know and exercise their right to compete with a former employer.

But not everything is software. A few weeks ago John Weisz of the Judge Baker Children’s Center at Harvard gave a talk at our church about his group and the work that they do. It’s a great organization, with the mission to improve psychiatric care for children. They do this in many ways, such as running the Child At-Risk Hotline for Massachusetts, operating a school for children with psychiatric challenges, teaching Harvard students, running summer programs for kids with problems, and funding various studies of children’s psychiatric care.

The studies lead to an interesting if depressing problem. Because the Judge Baker center does some of the best research in the topic, they often know exactly what treatments work for children and which do not. But there is no good way for them to spread this information out into the world.

Unlike software developers (at least the software developers I know), most psychiatrists aren’t able or inclined to reach research papers and form their own conclusions about the state of the art in their profession. Rather, they are overworked, underpaid, and have no money for professional continuing education.

Normally in medicine this problem is solved by drug companies. They have an incentive to teach doctors about their new drug or device. They will get paid by patients in the end, if they can convince the doctor that their treatment is worth prescribing. So they produce not only research, but also continuing education programs, often hosted as part of lavish vacations. They give away pens with their name on it, send reps in regularly to talk about new systems or treatments. They even do television commercials, educating consumers directly. And the whole process is kept relatively honest by FDA oversight.

Psychicatric care, at least the kind that doesn’t involve drugs, is missing both sides of this equation. There is no FDA analog, forcing rigor in research about treatments and setting acceptable practice. And there are no drug companies, developing new techniques and spending the money to inform practitioners.

The reason for this, at it’s heart, is the lack of intellectual property protection for psychiatric treatment techniques. There is no way for a developer of new techniques to capture the value that other people, providers and patients, get from their new techniques. And as a result there is no incentive to push those techniques out into the world, to market them and train providers in them, to measure their effectiveness and get articles written in parenting magazines.

In software, it often seems like we have too much intellectual property protection. It’s interesting to hear about a discipline with too little.

The good news is at least one legislator is doing something about it. Will Brownsberger has announced that he will be sponsoring legislation to abolish non-compete agreements in Massachusetts. Xconomy reported about it in a story earlier this month, “Legislator Drafting Bill to Outlaw Non-Compete Agreements in Massachusetts“.

This is a simple legislative change which will cost the government little and have a big impact on Massachusetts competitiveness. However, I expect larger employers to resist any change in the law, so there may well be a fight. I want to encourage as much grassroots support of this as I can, so after the break you can find my email for inspiration and details on how to write your own representative.

Last night I wrote the following email to my congress critter, Sean Garballey. You are welcome to use it as a template for writing your own.

Representative Garballey:

I am a resident of Arlington, living in your district, and I had the pleasure of voting for you in a primary and two elections thus far.

As you may be aware, Representative Will Brownsberger of Belmont has announced a plan to introduce legislation abolishing non-compete agreements in Massachusetts. You can read more about it at http://www.xconomy.com/boston/2008/12/16/legislator-drafting-bill-to-outlaw-non-compete-agreements-in-massachusetts/

As a Massachusetts native, university graduate, and entrepreneur, I strongly support legislation abolishing non-compete agreements in our state. I think that this is the single most concrete step the legislature can take to encourage small, innovative companies to be founded and continue to operate here in Massachusetts.

As the founder of StreamBase Systems of Lexington, non-competes have been a challenge for me. We are a technology startup, spun out of MIT, that makes software for real time data processing, such as stock market data or signals intelligence data. Our system is a major improvement on many existing tools. In recruiting engineers from larger companies, I have on multiple occasions run afoul of non-compete agreements. While the other companies are generally not competitors, non-competes are often broad enough to cover at least some of our business. In some cases, potential employees have declined to pursue discussions with me, fearing legal repercussions from their previous employer. In other cases, employees have requested that they not work with certain customers or on certain lines of business, in order to avoid the appearance of impropriety.

While these agreements are seldom enforced, their existence and the legal grey areas surrounding them are a drain on our economy. They hurt workers, who are not able to change jobs freely and make use of their skills in the best jobs possible. And they hurt companies, making it harder to recruit the best employees. Removing noncompetes will help everyone in Massachusetts benefit more from our skilled workforce.

Sincerely,

Richard Tibbetts

I was pleased to receive his prompt reply:

Thank you for writing to me in regards to the bill that Rep. Brownsberger will be filing for this legislative session. I strongly support the initiative to abolish non-compete agreements in Massachusetts. I agree with your comments and I hope we can move this legislation forward during this session.

I also contacted the sponsor of the legislation, Will Brownsberger, and also received a reply, in only 20 minutes or so, after midnight. He is definitely on top of electronic communication with his constituents, including Google groups.

I’ve heard that Senator Patricia Jehlen is going to sponsor the bill in the senate. If you live in Medford or Somerville you may be in her district. Unfortunately my newly-elected state senator, Jim Marzilli, doesn’t seem to post his email address, so I’ll have to bug him other ways.

If you also support banning non-competes, I encourage you to write your representative and senator. You can likely find them at http://www.wheredoivotema.com/. And consider sharing your support with Rep. Brownsberger as well.