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Lawrence Lessig

  • Is It Time to Change the Rules for Big Tech? Experts Weigh In.

    February 28, 2022

    This is your Tech News Briefing for Monday, February 28th. I'm Zoe Thomas for The Wall Street Journal. Big tech companies are facing more scrutiny from lawmakers and regulators than ever. An astonishing amount of the tech that plays an integral role in our lives is being run by just a handful of companies. And the question hanging over many congressional hearings and regulatory investigations is, are the current rules enough, or do new ones need to be made? On today's show, we'll bring you a conversation from the WSJ pro team with experts discussing how we should rethink the rules around tech, and the impact any changes could have on the everyday user. ... The WSJ Pro team recently brought together a panel of experts to discuss some of the most pressing issues that regulators and tech businesses are grappling with. Steve Rosenbush, Bureau Chief for WSJ Pro Enterprise tech spoke with Rob Atkinson, President of the Information Technology and Innovation Foundation, a think tank that promotes innovation and has several tech companies on its board. Lawrence Lessig, a Professor of Law currently at Harvard law school who studies the interplay of tech and policy, and Barry Lynn, Executive Director of the Open Markets Institute, which focuses on threats from business monopolies and the concentration of power. Here are some highlights from their conversation, starting with Steve.

  • The Supreme Court Needs Its Own Filibuster

    February 16, 2022

    An article written by Lawrence Lessig: The Supreme Court’s decision last week to reverse the finding of a three-judge panel that Alabama must redraw its 2022 Congressional map after violating the Voting Rights Act — a ruling the Supreme Court reached without the benefit of full briefing and argument—has raised again the question of what could be done about the court’s use of the “shadow docket.” Here’s one answer: Congress should give the justices a filibuster.

  • Why the US Is a Failed Democratic State

    December 15, 2021

    A column by Lawrence Lessig: The State Department is hosting a democracy summit this week. Representatives from around the world will assemble, virtually, “to set forth an affirmative agenda for democratic renewal.” For the United States, the state.gov webpage declares, “the summit will offer an opportunity to listen, learn, and engage with a diverse range of” democratic actors. America will also, the page continues, in what is certainly the money quote of the whole conference, “showcase one of democracy’s unique strengths: the ability to acknowledge its imperfections and confront them openly and transparently, so that we may, as the United States Constitution puts it, ‘form a more perfect union.’” I’m not certain who precisely is going to be showcasing our own “imperfections.” The agenda online is incomplete. But it is right that we “confront” these “imperfections” “openly and transparently.” Because what’s most striking about America’s understanding of our own democracy is our ability to see what’s just not there. We are not a model for the world to copy. The United States is instead a failed democratic state. At every level, the institutions that the US has evolved for implementing our democracy betray the basic commitment of a representative democracy: that it be, at its core, fair and majoritarian. Instead, that commitment is now corrupted in America. And every aspiring democracy around the world should understand the specifics of that corruption—if only to avoid the same in its own land.

  • For Rules in Technology, the Challenge is to Balance Code and Law

    November 23, 2021

    The first time the Harvard law professor Lawrence Lessig told computer scientists they were the unwitting regulators of the digital age — about 20 years ago — he made a coder cry. “I am not a politician. I’m a programmer,” Mr. Lessig recalls her protesting, horrified by the idea. Now, the notion that “code is law”— from Mr. Lessig’s 1999 book “Code and Other Laws of Cyberspace” — does not shock young engineers or lawyers, the professor says. To digital natives it is “obvious” that technology dictates behavior with rules that are not value neutral.

  • Burning smartphone

    ‘The algorithm has primacy over media … over each of us, and it controls what we do’

    November 18, 2021

    Social media’s business model of personalized virality is incompatible with democracy, agreed experts at a recent Harvard Law School discussion on the state of democracy.

  • Facebook Is Bad. Fixing It Rashly Could Make It Much Worse.

    October 27, 2021

    The nicest thing you can say about the Health Misinformation Act, proposed in July by the Democratic senators Amy Klobuchar and Ben Ray Luján, is that it means well. The internet has been a key accelerant of widespread myths, misunderstandings and lies related to Covid-19; Klobuchar and Luján’s bill would force online companies like Facebook to crack down on false information during public health emergencies, or lose immunity from lawsuits if they don’t. ... Klobuchar and Luján’s bill is one of many plans that attempt to curb the power of tech companies by altering Section 230 of the Communications Decency Act, the much-hated and much-misunderstood 1996 rule that affords websites broad immunity from liability for damage caused by their users. ... As Daphne Keller, the director of the Program on Platform Regulation at Stanford’s Cyber Policy Center, has outlined, there are at least six different ways that the Constitution limits Congress’s power to regulate online discourse. ... Not everyone agrees that the Constitution is incompatible with speech regulations for tech companies. Lawrence Lessig, a professor at Harvard Law School who has been working with Frances Haugen, the Facebook whistle-blower, told me that some content-neutral rules for online speech might survive constitutional scrutiny — for example, a rule that set an upper limit on the number of times a Facebook post could be reshared.

  • The Facebook Papers may be the biggest crisis in the company’s history

    October 25, 2021

    Facebook has confronted whistleblowers, PR firestorms and Congressional inquiries in recent years. But now it faces a combination of all three at once in what could be the most intense and wide-ranging crisis in the company's 17-year history. ... "The most interesting thing I discovered as I read these documents is how extraordinary the company is," Lawrence Lessig, a Harvard Law School professor and strategic legal adviser to Haugen, told CNN. "The company is filled with thousands of thousands of Frances Haugens ... who are just trying to do their job. They are trying to make Facebook safe and useful and the best platform for communication that they can."

  • Crowd of protesters people. Silhouettes of people with banners and megaphones. Concept of revolution or protest

    Power to the people

    October 12, 2021

    In “Power to the People: Constitutionalism in the Age of Populism,” co-authors Mark Tushnet and Bojan Bugarič argue that populism is neither inherently conservative nor necessarily inconsistent with constitutional democracy.

  • Crowd of people in front of the U.S. Capitol

    Is democracy in peril?

    September 23, 2021

    The state of American democracy will be examined in a lecture series, "Democracy," which had its first session this week and will continue through the fall and spring.

  • Chuck Schumer Rejects Joe Manchin’s Voting Rights Strategy

    May 20, 2021

    Chuck Schumer and Joe Manchin are locked in a voting rights standoff. Senate Majority Leader Schumer, D-N.Y., shot down an effort from Sens. Manchin, D-W.Va., and Lisa Murkowski, R-Alaska, to focus narrowly on reauthorizing the 1965 Voting Rights Act, instead championing the For the People Act as the more immediate fix for systemic problems in the U.S. electoral system...Democracy reform advocates say using this moment only to pass the John Lewis Voting Rights Act would squander an opportunity...Worse yet, said Lawrence Lessig, a professor at Harvard Law School, a dangerous possibility could be that Manchin actually does manage to get Republicans to cynically co-sponsor his approach. “The reason you see Republicans supporting HR4 is that they believe that this bill will be passed by Congress and kill HR1 but then be struck down by the Supreme Court and lead us back to where we are right now,” said Lessig, author of “They Don’t Represent Us: Reclaiming Our Democracy.” “The reality is, bipartisanship is not possible with the Republican leadership on voting rights reform because they are convinced the only way they maintain power is by preserving the ability of the states to make it harder for Democrats to vote.”

  • Was media always so polarized?

    March 29, 2021

    Lawrence Lessig, Sue Gardner and others explain how and why American broadcast news became increasingly polarized.

  • This is no time to compromise on democracy reform

    March 23, 2021

    An op-ed by Lawrence LessigH.R. 1 is poised to be the most important democracy reform enacted by Congress since the Voting Rights Act of 1965. But in the wake of its passage in the House on a strict party-line vote on March 3, some anxious scholars and pundits worry it cannot pass the Senate and are urging Democrats to pull back. That advice is wholly misguided, both politically and morally. This is not the time to compromise on H.R. 1. It is not time for Democrats to negotiate against themselves. This is the time to make the argument for every facet of H.R. 1 even more strongly. H.R. 1 is an omnibus reform package that covers a wide range of flaws in our current representative democracy. Building on the work of the late representative John Lewis, the bill would assure that every qualified voter had equal freedom to vote, and that no state could deploy complex rules to suppress anyone’s right to participate. It would end the partisan gerrymandering of congressional districts, increase election security and, for the first time in U.S. history, give candidates for Congress a real opportunity to rely on small contributors alone to fund their campaigns. The bill would also impose substantial ethics regulations on Congress, the Supreme Court and the president. And it would be funded by fines, penalties and settlements from corporate tax, lobbying and financial fraud cases.

  • The Internet Doesn’t Have to Be Awful

    March 9, 2021

    To read the diary of Gustave de Beaumont, the traveling companion of Alexis de Tocqueville, is to understand just how primitive the American wilderness once seemed to visiting Frenchmen...If Tocqueville were to visit cyberspace, it would be as if he had arrived in pre-1776 America and found a people who were essentially powerless. We know alternatives are possible, because we used to have them. Before private commercial platforms definitively took over, online public-interest projects briefly flourished. Some of the fruits of that moment live on. In 2002, the Harvard Law professor Lawrence Lessig helped create the Creative Commons license, allowing programmers to make their inventions available to anyone online; Wikipedia—which for all the mockery once directed its way has emerged as a widely used and mostly unbiased source of information—still operates under one...All of that began to change with the mass-market arrival of smartphones and a shift in the tactics of the major platforms. What the Harvard Law professor Jonathan Zittrain calls the “generative” model of the internet—an open system in which anyone could introduce unexpected innovations—gave way to a model that was controlled, top-down, and homogeneous. The experience of using the internet shifted from active to passive; after Facebook introduced its News Feed, for example, users no longer simply searched the site but were provided a constant stream of information, tailored to what the algorithm thought they wanted to read.

  • An obscure Alaska court case could end super PACs and reshape our democracy

    February 16, 2021

    On January 20, while the country was focused on the presidential inauguration, the Alaska Supreme Court heard arguments in a case that could upend the big money systems that have come to fund the nation's elections. It's time for the rest of the country to pay attention. The case comes from Lawrence Lessig, a law professor at Harvard and founder of the organization EqualCitizens, who spent Inauguration Day on Zoom arguing against super PACs...Lessig's case asks the Alaska court — and potentially the US Supreme Court — to recognize a different type of corruption. His argument relies on originalism, an interpretive technique that examines how ordinary people would have understood the Constitution back when it was first proposed. In support of his originalist argument, Lessig marshals impressive evidence that the framers' generation had a deep and capacious understanding of political corruption. People back then understood bribery, of course. But they also worried about institutional corruption: even if a particular individual isn't taking bribes, an institution as a whole can become corrupted by an improper dependence on anything other than the support of voters. And super PACs corrupt the system by making politicians far too dependent on a small number of super-wealthy donors.

  • Trump’s legal team prepares for Senate impeachment trial as Schumer agrees to delay

    January 25, 2021

    Senate Majority Leader Chuck Schumer has agreed to delay former President Trump's impeachment trial by two weeks. The House still plans to submit the article of impeachment on Monday, prompting the proceedings to begin. Harvard Law professor Lawrence Lessig joined CBSN to explain what the former president's legal team may be doing to prepare for the trial and what Democrats need to do to prove the president intended to start an insurrection.

  • Have Trump’s Lies Wrecked Free Speech?

    January 6, 2021

    In the closing days of his presidency, Donald Trump has demonstrated that he can make innumerable false claims and assertions that millions of Republican voters will believe and more than 150 Republican members of the House and Senate will embrace ... In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech ... Rebecca Tushnet, a law professor at Harvard, wrote by email: “Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.” ... Lawrence Lessig, a law professor at Harvard...wrote by email, that “the First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.” ... Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.” ... In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that, “We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.”

  • Molly Brady wearing a bright red jacket sits in front of a computer and teaches her class in Zoom

    2020 in pictures

    January 5, 2021

    A look back at the year at HLS.

  • The Outdated Law that Republicans Could Use to Upend the Electoral College Vote Next Time

    January 4, 2021

    On Monday, amid heightened security measures spurred by threats of violence, the electors of the Electoral College cast their votes to affirm that Joe Biden will become the forty-sixth President of the United States. That vote is a ritual typically of interest only to the electors and their friends and families, but this year the major wire services moved news bulletins as the states tallied their counts. It was one more case of how Donald Trump’s denialism about his electoral defeat, and his continuing attempts to retain power by conjuring a constitutional crisis, have brought Americans into anxious acquaintance with the anachronistic mechanisms of a democracy that they can no longer take for granted...If Democrats were to win control of both the House and the Senate, following next month’s runoff Senate elections in Georgia, “It would be super-wise to rewrite the E.C.A.,” Lawrence Lessig, a law professor at Harvard and a democratic-reform activist, told me. “We need to clear up what exceptional cases there are” that could ever allow state legislatures to intervene on the basis of a “failed election,” how such a determination would be made, and how judgments by legislatures would be subject to review by other political authorities and courts. There are other provisions of the E.C.A. that bear rewriting, too, Lessig said, such as a complicated tie-breaking procedure if disputed slates of electors are sent to Congress.

  • Alternative slates are voting: What this means

    December 15, 2020

    An article by Lawrence LessigAs reported by Rick Hasen at the Election Law Blog, Stephen Miller has now announced that alternative slates of electors are in fact voting in each of the swing states. Rick discounts the significance of this. I think he moves too quickly in reaching that happy conclusion. The precedent is Hawaii, 1960. As Van Jones and I had written on CNN.comon November 4, “In 1960, Hawaii’s vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes. On November 28, the acting governorcertified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon. But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii’s voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then-Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to ‘open all the certificates’ as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.” As with what Miller imagines with the swing states in 2020, Hawaii had two certifications. The question for Nixon was whether he would count that second certification, given after the electors were to have voted (especially since they were electoral votes for Kennedy, not for Nixon).

  • Missouri, 5 more states ask to join Texas Supreme Court election case against Georgia, others

    December 11, 2020

    Missouri and five other states on Thursday threw their support even further behind the Texas lawsuit aiming to prevent Georgia, Pennsylvania, Michigan and Wisconsin's electors from casting their electoral votes by asking the Supreme Court to let them join the Texas suit. Missouri on Wednesday led a group of 17 states in filing a brief that supported the Texas lawsuit, which alleges that the four key swing states that voted for President-elect Joe Biden violated the Constitution by having their judicial and executive branches make changes to their presidential elections rather than their legislatures...Despite the backing of so many state attorneys general, most legal experts say the Texas suit is fatally flawed in several ways and nearly certain to fail. "This is political posturing through litigation. Not one of those attorneys general believes they are entitled to win," Harvard Law professor Lawrence Lessig told Fox News. Lessig is a former clerk for the late Justice Antonin Scalia and currently works with Equal Votes, a nonprofit that seeks to end winner-take-all allocation of electoral votes in states. Lessig continued: "As lawyers, that should stop them from signing onto such an action. But they are acting as politicians, not lawyers here – to the detriment of the rule of law."

  • The Last Long-Shot Chance For Trump Allies To Challenge Election Results

    December 10, 2020

    President Trump’s campaign and his allies’ litany of legal challenges to the 2020 presidential election have not succeeded in changing the results of the election. But two weeks before inauguration, Republican lawmakers who have yet to acknowledge President-elect Joe Biden’s victory will have one last long-shot chance to challenge the outcome showing Mr. Biden won 306 electoral votes to Mr. Trump’s 232...Claiming widespread irregularities in the race between President George W. Bush and Democratic opponent John Kerry, a group of lawmakers objected to Ohio’s 20 crucial electoral votes, potentially putting the election in the balance. Kerry himself did not support the effort. “While I am deeply concerned about the issues being highlighted by my colleagues in Congress and citizens across the country and support their efforts to highlight the need to ensure voting rights,” Mr. Kerry said, the New York Times reported at the time, “I will not be joining the protest of the Ohio electors.” President Trump tweeted support for Brooks after his announcement that he would challenge battleground states’ electoral votes. The statute allowing objection, outlined in the Electoral Count Act, exists because of another contested election, explained Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School. In the 1876 presidential election, three states submitted competing slates of electors, with each candidate “claiming victory in violent and confused elections,” according to the U.S. House Archives.

  • Boston Public Radio Full Show: 12/3/20

    December 4, 2020

    Today on Boston Public Radio: Lawrence Lessig discussed the legal window for Republicans to replace electors in a last-ditch effort to get President Trump reelected, and other extrajudicial efforts to overturn the results of the 2020 election. Lessig is the Roy L. Furman professor of law and leadership at Harvard Law School, and the founder of Equal Citizens. His latest book is “They Don’t Represent Us: Reclaiming Our Democracy.”

  • The Electoral College: Keep or Replace? A Soho Forum Debate

    November 23, 2020

    When Donald Trump won the presidential election in 2016 even though 2.8 million more people voted for Hillary Clinton, everyone from Bill De Blasio, to Michael Moore, to Eric Holder and Bill Maher said that at long last we should abolish the electoral college. Then-California Senator Barbara Boxer introduced a bill to amend the U.S. constitution to do just that. A Gallup poll from September of this year showed that 61 percent of Americans support abolishing the electoral college in favor of a national popular vote, although it's an issue that breaks along partisan lines. 77 percent of Republicans want to keep the electoral college, while 89 percent of Democrats said that we should get rid of it. Is the electoral college the best system for electing a president? That was the subject of an online Soho Forum debate held on Wednesday, November 11, 2020. Richard Epstein, a law professor at New York University, defended the system against Lawrence Lessig, a law professor at Harvard. Soho Forum director Gene Epstein moderated. Lessig won the Oxford-Style debate by gaining 14.29 percent of the audience's support. Epstein lost 2.04 percent of his pre-debate votes.

  • Sound On: Trump Election Strategy, Biden Transition (Podcast)

    November 23, 2020

    Bloomberg Chief Washington Correspondent Kevin Cirilli delivers insight and analysis on the latest headlines from the White House and Capitol Hill, including conversations with influential lawmakers and key figures in politics and policy. Bloomberg's June Grasso served as guest host. She was joined by Lawrence Lessig, Professor of Law and Leadership at Harvard Law School and founder of Equal Citizens, Jennifer Rie, Bloomberg Intelligence Senior Antitrust Litigation Analyst, John Sitilides, Geopolitical strategist at Trilogy Advisors and diplomacy consultant to the State Dept, and Kevin Walling, Democratic Strategist at HG Creative media.

  • State legislatures do not have the power to veto the people’s choice in an election

    November 20, 2020

    An op-ed by Lawrence LessigThe conservative radio talk show host Mark Levin has tweeted an all caps call for state legislatures to “get ready to do your constitutional duty.” Levin believes they have “the final say” on which slate of presidential electors gets to vote in the Electoral College. Under this theory, even if more people in a state voted for Democrat Joe Biden, their legislature would still have the power to pick a slate of Donald Trump electors. In other words, the Republican legislatures in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin could all now select a slate of electors for Trump. Needless to say, Levin’s theory has been embraced by many who continue to believe it can give Trump a second term. Levin is wrong about the power of state legislatures. But he’s not making his theory up out of whole cloth. There’s a kernel of truth to Levin’s theory. And it’s important to understand why that truth does not mean that legislatures have the power to do something that no legislature has ever done  —  to veto the results of a popular election and pick a slate of electors for the loser in that popular election. Levin grounds his claim on the part of the Constitution that gives legislatures the power to select the “manner” by which presidential electors are appointed. In Bush v. Gore, the Supreme Court interpreted that power to mean that the legislature could vest the selection of electors in the people — through a popular election — but that it could “take back” that power “at any time.” On Levin’s reading, “at any time” includes after an election. So that after an election, the legislature could say, “Thanks for your input, but we’re going a different way.”

  • Zoom meeting with five HLS faculty

    Election 2020 debrief: What happened and what’s next?

    November 5, 2020

    In an “Election 2020 Debrief” event, a panel of Harvard Law School professors agree that the essential divisions of the American electorate remain unresolved, but find cause for some highly cautious optimism.

  • Why Pennsylvania should take its time counting votes

    November 5, 2020

    An op-ed by Van Jones and Lawrence LessigElection night is over, but the election is not. And given the unexpectedly tight race, Pennsylvania's 20 electoral votes may be those that decide who wins the White House. To be sure, Biden still has a path to victory that doesn't involve Pennsylvania, but he could end up needing the state if he suffers reverses elsewhere. The key for Pennsylvania to have an orderly and complete vote count is for the state to take its time. And the key precedent that should show Pennsylvania that it may take its time is not Florida in 2000, but Hawaii in 1960. Even though Richard Nixon said it should not be a precedent, what he did in 1960 should be the model for this election in 2020. In 1960, Hawaii's vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes.On November 28, the acting governor certified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon. But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii's voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to "open all the certificates" as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.

  • photo illustration Larry Lessig and tally marks

    How It All Adds Up

    October 26, 2020

    Lawrence Lessig discusses institutional threats to representative democracy.

  • These Are The Nightmare Scenarios For The 2020 Election

    October 14, 2020

    The 2020 presidential election could be so tight, and the result so hotly contested, that the losing party refuses to concede, triggering a chaotic free-for-all in which Congress, the courts, and, in the most extreme case, the military could determine the winner. It may sound far-fetched, but the Constitution has major gaps when it comes to deciding a contested presidential race...Now let’s take the alternative scenario from above, where the Florida legislature replaces the pro-Biden slate of electors with a pro-Trump slate. Congress oversees counting the Electoral College votes. Both slates of electors from Florida — those ready to vote for Biden, and those for Trump — would surely show up in Washington claiming to represent the true will of the people. Who chooses which set of votes to count? Some say it would be Vice President Mike Pence in his capacity as president of the Senate. But most experts agree that decision falls to Congress. What happens if a split Congress can’t agree on which votes to count? The Constitution has no answer. In a true nightmare scenario, Pelosi declares the electors invalid, refuses to count the votes, and claims, in the scenario laid out above, that the House has the power to declare Biden the winner. Then, Senate Republicans rally behind Trump while Pelosi and the Supreme Court face off over who has authority. “If it’s a contest between Nancy Pelosi and the Supreme Court, we have no idea,” said Lawrence Lessig, a professor of law and leadership at Harvard Law School. “At some point, it’s the military’s judgment — because if Trump refuses to leave, who’s going to show up at the White House on Inauguration Day and escort him out?” ...Lessig said he believes the courts would ultimately get involved to avoid the appearance of a stolen election. “These are people who think about history. That’s what their whole lives are about,” he said. Still, at a time when norms are being shattered and the president is openly talking about neutering the United States Postal Service’s ability to count millions of mail-in ballots, Lessig says unimaginable scenarios have become very imaginable. “The question is not what’s reasonable or fair,” he said. “The question is what’s possible.”

  • What happens if a nominee dies shortly before or after the election? It’s complicated.

    October 7, 2020

    An op-ed by Jason Harrow and Lawrence LessigWhat would happen if a presidential candidate were to die close to an election? All of us should hope President Trump recovers quickly from covid-19, and that this difficult situation never arises. But the president’s illness underscores the reality that this outcome is within the realm of possibility — and that our existing election architecture needs fine-tuning to deal with it. This scenario arose when we argued Supreme Court cases last spring about the role of presidential electors. Based both on history and current state and federal law — including the Supreme Court’s decision in the so-called faithless-elector case, Chiafalo v. Washington— it’s not clear what would happen if a presidential candidate dies either shortly before Election Day or before the electoral college has gathered to ratify the election results. That dangerous ambiguity can be closed if states act quickly to make sensible modifications to their laws, and if the political parties and state officials in the remaining states commit to letting the electoral college carry out the will of the people, as the Supreme Court envisioned in Chiafalo. Many states have laws that, if read literally, would force presidential electors to cast votes for candidates who have won the state’s popular vote — even if the candidate were deceased. Take Colorado, whose law was before the Supreme Court. Colorado law says “each presidential elector shall vote for the presidential candidate . . . who received the highest number of votes” in the general election.

  • How Ginsburg’s Seat is Saved

    September 23, 2020

    An article by Lawrence LessigThere’s no doubt that the death of Justice Ginsburg has radically changed the dynamics of the 2020 election. But there is no reason to believe that Justice Ginsburg’s seat is lost to a Trump appointee. Mitch McConnell is playing a difficult game. At each stage between now and January 20, his actions are significantly constrained. It would make no sense for McConnell to bring a nominee to the floor before the election. That’s no gain for the Republicans, but only significant costs. It’s no gain, because by filling the seat, McConnell eliminates the turnout effect that this event is certainly going to have for Republicans. There are many who were on the fence about Trump who will now turn out for the Supreme Court seat alone. If that seat is filled, they stay home. And it’s a significant cost because key Republicans would face a backlash at the polls for reversing themselves on election-year appointments. Susan Collins most obviously. Maybe even McConnell himself (though who can begin to understand Kentucky voters?). Bottom line: I don’t expect we’ll see any nominee on the Senate floor before November 3. If Trump wins, game over, obviously. If he doesn’t win, then everything depends on whether the Senate has been flipped as well. If the Democrats have won all three contests — the House, Senate, and White House—then the path to stopping McConnell in the Senate is clear: The Democrats declare that they will add four seats to the Court if there’s a lame-duck appointment, and they promise they won’t if there isn’t. That deal is fair and right. What McConnell did with Garland was wrong. The hypocrisy in now reversing the “principle” (as he then put it) that blocked Garland adds insult to injury. Bad behavior must be punished — especially in politics. If they steal two, they should lose four.

  • Democracy In Crisis, Part 1: What’s Wrong With Elections?

    August 28, 2020

    In the late 1980’s and early 1990’s western-style democracy appeared ascendant and inevitable.  U.S. President George Herbert Walker Bush hailed events such as the fall of the Berlin Wall and the dissolution of the Soviet Union as heralding a New World Order, based on democracy and global capitalism.  But the last thirty years have seen, not an expansion of democracy, but a rebirth of authoritarianism.   Across the globe,  electoral fraud, political corruption, disenfranchisement of political minorities and the specter of fascism now seem the rule rather than the exception.  In 2017, the London-based Economist Democracy Index hit its lowest score ever, including the downgrading of the United States from a “Full Democracy” to a “Flawed Democracy.”  Today, we start a three-part series, Democracy in Crisis, which will explore the failures of our current electoral system and perhaps, provide some hope for an alternative model.  Joining WORT host Brian Standing...Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School. Prior to returning to Harvard, he taught at Stanford Law School, where he founded the Center for Internet and Society. Lessig is the founder of Equal Citizens and a founding board member of Creative Commons. His books include: They Don’t Represent Us: Reclaiming Our Democracy, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution, America, Compromised and  Republic, Lost v2.

  • ‘The Swamp’ looks at political reform through the eyes of an unlikely hero: Rep. Matt Gaetz

    August 3, 2020

    Washington wasn’t built on a swamp — but try telling that to American voters or the politicians they keep electing to metaphorically drain it. This facile fixation long ago turned into a catchphrase (“Drain the Swamp”), but for the most part, it’s all promise and no follow-through. President Trump is only the latest in a long line of bellicose, would-be reformers — of all ideological stripes — who campaign on the idea of a sickened, murky, ethically inhospitable U.S. capital in need of a deep cleanse. The only thing this long-held bias achieves is to keep Washington’s taxpaying residents in an ironic limbo of second-class citizenship, unrepresented in Congress. Oh well — you’ve seen our license plates, you know D.C.’s drill. Daniel DiMauro and Morgan Pehme’s intriguing documentary, “The Swamp” (premiering Tuesday on HBO), makes a good-natured and often compelling attempt to explain some of the endemic, deep-seeded dysfunctions of Congress (a.k.a. “Washington”), while also doing its best to not seem so naive as to present old outrages as fresh news...The “where to begin” aspect of fixing Washington is as much a hurdle for the film as it is for the representatives, while the history of partisan gridlock and big-money influence is more easily traced to the rise of former House Speaker Newt Gingrich in the 1994 midterm elections, when Republicans won a long-sought majority. Seeding dissent between voters and widening the rift between conservatives and liberals turned out to be a powerful moneymaker and a point of no return for both parties — “the perpetual campaign,” says Harvard professor and government reform advocate Lawrence Lessig.

  • Wireless Industry Calls For End To Berkeley RF Exposure Law

    July 24, 2020

    The wireless industry urged a California federal judge Thursday to find the city of Berkeley, California's wireless disclosure ordinance violates the First Amendment, saying the Federal Communications Commission supports the trade group's view that cellphone retailers need not warn customers about potential harm from radiofrequency emissions. CTIA – The Wireless Association, a trade association composed of U.S. wireless communications companies including AT+T, Verizon, Samsung and Apple, urged U.S. District Judge Edward Chen to grant its bid for judgment on the pleadings that Berkeley's ordinance violates free speech laws and is preempted by federal regulations...An attorney for Berkeley, Lawrence Lessig of Harvard Law School, brushed aside the FCC's letter of interest, saying that it merely reflects the views of the FCC's general counsel, who is appointed by the FCC chairman, who in turn is appointed by the president. Lessig said that the FCC's general counsel clearly has views about what the policy is and voices those views, but that they are not necessarily the agency's. Lessig told Law360 after the hearing that the FCC's general counsel had become "extremely activist" and "extremely aggressive" in his pursuit of his policy preferences. But Lessig said this case calls into question to what extent the general counsel can establish policy for the FCC. The lawsuit stems from a 2015 ordinance requiring phone sellers to inform customers that holding an internet-connected mobile phone close to their skin — such as "in a pants or shirt pocket or tucked into a bra" — could expose users to too much radiofrequency radiation.

  • Electoral College

    Does recent Supreme Court ruling suggest the Electoral College is ‘good for nothing’ ?

    July 8, 2020

    In a Q&A, Jason Harrow ’11, who argued before the Supreme Court in a case involving the electoral college and faithless electors, shares where he believes U.S. electoral reform should go from here.

  • Lessig, who argued on behalf of ‘faithless electors,’ responds to the Supreme Court’s decision

    July 8, 2020

    Lawrence Lessig issues a statement on the unanimous Supreme Court ruling that states can require Electoral College voters to back the victor of their state’s popular vote.

  • Supreme Court Upholds ‘Faithless Electors’ Laws—Here’s How They Voted in 2016

    July 7, 2020

    The Supreme Court ruled Monday that states can remove "faithless electors," who vote contrary to the people's wishes, four years after 10 members of the Electoral College broke ranks. The Court unanimously ruled that states can effectively prohibit Electoral College representatives from voting for someone whom they didn't pledge to support. The ruling came from a case in Washington state in which three electors challenged a law that allowed them to be fined for choosing how to cast their ballot...Harvard Law professor Lawrence Lessig, who is representing Chaifalo, denied it was a "good possibility" but said it was possible. "We agree that, of course, the possibility exists that you could flip electors. But look historically at the number of times that could have mattered," Lessig said. "In fact, in the history of electors, there has been one elector out of the 23,507 votes cast who have switched parties against the majority party in a way that could have mattered." Had all the "faithless electors" cast their ballots for Clinton, Trump still would have won the election by more than 60 Electoral College votes. However, swinging 10 electors in five previous presidential races could have changed the results, Lessig said in court papers, according to CNBC. Therefore, it was imperative that the court resolve the issue before November. In a statement to Newsweek, Lessig said that obviously his view (and that of the plaintiffs) of the Constitution differs from the Court's, but he noted he was happy that the question was answered before it created a "constitutional crisis." "But now that the Court has essentially removed 'electors' from the Constitution, it is time we think about why the Electoral College makes any sense at all anymore," Lessig said.

  • Supreme Court rules ‘faithless electors’ can’t go rogue at Electoral College

    July 6, 2020

    The 538 people who cast the actual votes for president in December as part of the Electoral College are not free agents and must vote as the laws of their states direct, the U.S. Supreme Court ruled Monday. The unanimous decision in the "faithless elector" case was a defeat for advocates of changing the Electoral College, who hoped a win would force a shift in the method of electing presidents toward a nationwide popular vote. But it was a win for state election officials who feared that empowering rogue electors would cause chaos...Harvard Law Professor Larry Lessig, who advocates Electoral College reform, told the court that nothing in the Constitution gives states any authority to restrict how an elector can vote, because they act in a federal role when meeting as the Electoral College. Instead of voting for Hillary Clinton, who won the popular vote in Colorado, Micheal Baca cast his vote for John Kasich, the former Republican governor of Ohio. And in Washington state, where Clinton also won the popular vote, three of the state's 12 electors voted for Colin Powell, the former secretary of state. The Supreme Court ruled in 1952 that states do not violate the Constitution when they require electors to pledge that they will abide by the results of the popular vote. But the justices had never before said whether it is constitutional to enforce those pledges. Lessig said he hoped the controversy would encourage more states to adopt a system in which they would assign all of their electors to the candidate who wins the nationwide popular vote for president.

  • Interview: Harvard Law Professor Lawrence Lessig Talks Electoral Reform

    June 8, 2020

    Who is Lawrence Lessig and why is he campaigning for electoral reform? Lawrence Lessig is an academic, attorney and political activist who has served as Director of the Edmond J. Safra Center for Ethics at Harvard University. He rose to prominence in 2014 when he launched the crowd-funded Mayday PAC, with the aim of electing members of Congress who support campaign finance reform, before ultimately running for President on a platform of electoral reform. In 2016, he founded the non-profit ‘Equal Citizens’, an organization “dedicated to reforms that will achieve citizen equality”. On 13th May 2020, he argued at the Supreme Court in a case that will decide whether presidential electors in each state can be legally compelled to vote for the candidate that won the popular vote in that state.

  • The Supreme Court v. the coronavirus

    May 15, 2020

    An article by Lawrence LessigAt any time, arguing any case before the US Supreme Court is challenging. The justices are among the best lawyers in the nation. They do their homework. They are prepared. An argument quickly focuses on the weak points on both sides. The whole purpose of the argument is to give the court a chance to work through the implications of each side. And for practically the whole of the Supreme Court’s history, that exchange has happened in person, with justices and counsel given the chance to see each other face to face and to read in the eyes and the body language of the justices what’s been heard and understood. The coronavirus pandemic has changed all that. For the past two weeks, the Supreme Court has heard arguments by telephone. Not Zoom, not Google Meet, by telephone. The format is different, and much more strictly formatted. The lawyer on each side opens with a two-minute statement; each justice gets a couple of minutes of questions. The questions go in order of seniority. That at least makes it clear who is speaking and when. It is difficult to say whether these changes make the process better or worse. In some ways, it’s clearly better: Justices are encouraged to participate, and more of them do. They come to the argument prepared with questions. They’ve learned how to present their questions concisely because time limits are severe. The format is the format of a congressional hearing, yet the justices get less time for their questions than a congressional representative.

  • Supreme Court seems reluctant to unbind ‘faithless electors’ who could ‘create chaos’ in presidential contests

    May 14, 2020

    The justices of the Supreme Court seemed reluctant Wednesday to tamper with the system America uses to choose its president, based on their comments during oral arguments over the workings of the Electoral College. The issue in the two "faithless elector" cases is a simple one: Are the 538 presidential electors free agents, or must they vote in accordance with the election results in their states? If they are free to vote as they wish, a small group of them, or even a single one in a tight contest, could decide who wins...Lawyers for four electors from Colorado and Washington state who did not conform to the popular votes in their states urged the court to rule that states can regulate only how electors are chosen, not how they vote in December. "Once the voting starts, the state disappears," said Lawrence Lessig, a Harvard law school professor arguing before the court. "States have no power to control how an elector may vote." ...Lessig said nothing in the Constitution gives the states authority to restrict how an elector can vote, but several of the justices said the Constitution doesn't explicitly block a state from doing so, either...Lessig has said he hopes the cases will eventually lead to a change in the Electoral College, either through a constitutional amendment or by encouraging more states to adopt a system in which they would assign all of their electors to whoever wins the nationwide popular vote for president.

  • Justices Fear ‘Chaos’ If Electoral College Delegates Have Free Rein

    May 14, 2020

    The U.S. Supreme Court seemed pulled in two directions Wednesday—between the original meaning of the Constitution, on the one hand, and chaos in the 2020 election on the other. The election will take place amid a pandemic, at least a partial economic collapse, and potentially a Supreme Court ruling that could directly affect the election itself. The issue before the court Wednesday was whether states may remove or fine Electoral College delegates who do not vote for the presidential candidate they were pledged to support. The states say they have the power to do that. A group of 2016 electors say they don't...Harvard Law professor Lawrence Lessig, representing the electors, told the court that the founders believed that states can require electors to make a pledge, but that pledge is not enforceable by the states. Justice Clarence Thomas challenged Lessig, asking, "Can the state remove someone who openly solicits payments for his or her vote?" Lessig replied that the state can regulate corruption, but it can't remove electors unless they have been convicted of a bribe or another corrupt act. The justices seemed particularly disturbed by this assertion, asking all four attorneys arguing the case to weigh in on the possibility of states being powerless to remove electors who accept bribes...Lessig acknowledged the risk of chaos, but reiterated that he believes the risk is small. He added that there is "risk on both sides."

  • Justices ask if chaos will ensue if states can’t force electors to back popular-vote winners

    May 14, 2020

    Supreme Court justices invoked fears of bribery and chaos Wednesday to suggest they think states can require presidential electors to back their states’ popular vote winner in the Electoral College. The justices heard arguments on an unusual voting issue that could have important consequences for the 2020 presidential election in an era of intense political polarization. A focus of the questions was whether states can replace electors who decide to vote for someone other than the state’s popular vote winner. If they can’t, “it would lead to chaos,’’ Justice Samuel Alito said, “where the popular vote is close and changing just a few votes would alter the outcome." ...Harvard Law School professor Lawrence Lessig, who favors broad changes in voting, redistricting, and the way campaigns are funded, represented the Washington electors at the Supreme Court. Lessig briefly sought the 2016 Democratic nomination and called for presidential electors to support Clinton because she won the national popular vote four years ago. Lessig warned that binding electors could open the door to other restrictions, including denying electoral votes to candidates who don’t visit their states or fail to release their tax returns.

  • Supreme Court Weighs Whether Electoral College Members Must Stick to State’s Popular Vote

    May 14, 2020

    The Supreme Court set out to clarify the nation’s age-old rules for the Electoral College system of selecting U.S. presidents, considering whether presidential electors can go rogue and ignore the voter-chosen candidate. The court, in its final teleconference arguments of the term, spent more than two hours Wednesday considering whether a state can remove or punish “faithless” electors who don’t follow its popular vote...The overwhelming majority of electors don’t attempt to break ranks, but faithless votes have been sprinkled throughout the nation’s history, starting with the first contested presidential election in 1796...Justice Samuel Alito raised the possibility of chaos, with a losing party seeking “to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.” “We deny it’s a good possibility. We don’t deny it’s a possibility,” responded Harvard law professor Lawrence Lessig, representing faithless electors from Washington state...Mr. Lessig told the justices that his clients are expected to follow instructions from voters, but with discretion built in. Electors, he said, are constrained “by moral and political obligations,” not legal ones.

  • Supreme Court to hear ‘faithless elector’ cases affecting Electoral College

    May 13, 2020

    The Supreme Court is set to hear arguments Wednesday in a pair of cases that could impose new rules on the Electoral College just months before the November election. Justices will be weighing in on “faithless electors,” members of the Electoral College who choose not to support the presidential candidate picked by the voters in their state...The Supreme Court is now being asked to decide, just months before another presidential election, whether electors are bound by the popular vote results in their states. How the justices answer that question could have significant consequences on Election Day. “It’s critically important to resolve the rules of this election before the election takes place,” Lawrence Lessig, a renowned Harvard Law School professor representing the electors, told The Hill. “The worst thing imaginable would be for this question to get raised after the vote has been taken when a decision by the court would basically choose who becomes president.” ...Lessig has been an outspoken critic of the Electoral College system, which has been at odds with the popular vote in two recent presidential elections — in 2000 and 2016 — and three in the 19th century. The two cases before the Supreme Court are a key component of his broader push for the elimination of the Electoral College in favor of elections determined by popular vote. “It’s important because we think it will make clear a fundamental design choice the Framers made about the Electoral College and help everybody focus on the question of whether this is the type of Electoral College that we want,” Lessig said.

  • Supreme Court Considers Pivotal Electoral College Case

    May 13, 2020

    The U.S. Supreme Court hears arguments Wednesday in a case that could affect the outcome of the 2020 election, and all future presidential elections, in unforeseeable ways. At the heart of the case is the Electoral College, which though it is enshrined in the Constitution, has for the most part been a mere formality for over the past two centuries. Specifically, the question is whether Electoral College delegates are a rubber stamp for the will of American voters in each state, as most people have assumed, or if they have the power to decide for themselves who they want to vote for when the Electoral College meets...The question before the Supreme Court on Wednesday is whether the states have the power to remove or fine such so-called faithless electors. Harvard Law School professor Lawrence Lessig, who has taken the electors case all the way to the high court, says these Electoral College delegates are "not faithless," but instead they were simply doing what the Founding Fathers envisioned, exercising their independent judgment and their consciences. "It's clear that the Framers thought [electors] had discretion," Lessig says...Harvard's Lessig agrees with Smith that the Electoral College has increasingly become a dysfunctional instrument of democracy. But he says, "The way to solve this problem is a constitutional amendment." That, however, could be harder than it seems. A constitutional amendment requires two-thirds of both the House and Senate to approve, and three-quarters of the states.

  • Supreme Court confronts ‘faithless electors’ as 2020 presidential election looms

    May 12, 2020

    Election Day is Nov. 3, but the winner of the White House traditionally isn't official until December, when 538 presidential electors confirm the results. On Wednesday, the Supreme Court will consider giving those virtually unknown people more than perfunctory power. The justices, customarily allergic to politics, appear on track to decide a threshold question that haunts the way presidents and vice presidents are chosen: Must the men and women chosen on Election Day to cast ballots for the winner of their state's popular vote keep their pledge? Or can they go rogue? Never before have these electors flipped an election. But 10 electors were disloyal or tried to be in 2016, enough to change the results of five previous presidential elections. And there's a first time for everything...The Supreme Court decided in January to hear both appeals, lest it be forced to intervene in a potential emergency situation after Election Day should an electors' rebellion this fall potentially affect results. "This court should resolve this conflict now, before it arises within the context of a contested election," Harvard Law School professor Lawrence Lessig urged on behalf of the three Washington State electors. "As the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this court to resolve the question of electoral freedom within the context of an ongoing contest," he warned.