Lawrence Lessig

An op-ed by Jason Harrow and Lawrence Lessig: What 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.

An article by Lawrence Lessig: There’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.

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.

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.

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.

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.

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.

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.

An article by Lawrence Lessig: At 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.

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.

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."

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.

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.

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.

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.

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.

Most Americans would like to abolish the electoral college, the idiosyncratic institution that picks presidents six weeks after election day. Twice this century, candidates who received more votes in the nationwide tally watched their rivals move into the White House the next January. But in 2016, when Hillary Clinton, the popular-vote winner, was vanquished by Donald Trump, another electoral-college flashpoint came to light. The controversy over whether America’s 538 electors are free to deviate from their pledges comes to the quarantined Supreme Court live by telephone on May 13th. So-called “faithless” electors are rare, but nothing new...The plaintiffs have ample support from the founding era. Alex Keyssar of Harvard’s Kennedy School, the author of a forthcoming book on the electoral college, says there is no “serious doubt” that the framers “envisioned electors as free agents, actors who would deliberate and could decide whom to vote for.” Lawrence Lessig, a Harvard law professor arguing the electors’ case, notes that Samuel Johnson defined electors as people who have “a vote in the choice of any officer”—quite distinct from “agents” or “delegates” who merely “act on behalf of others”. In the words of Alexander Hamilton in the Federalist Papers No. 68, electors would be chosen for their “discernment” and would be “most capable of analysing the qualities” of a potential president.

Amid all the well-justified worry during this troubled election season about vote suppression, the most direct threat to having every vote count has been hiding in plain sight: “faithless electors” who might cast their Electoral College votes according to their own preferences rather than for the choice of their states’ voters. Eight such votes were cast four years ago, including by electors in Colorado and Washington, despite the fact that those states and most others required would-be electors to pledge to vote according to the popular will...The argument from practice — how the Constitution has actually been understood and deployed, a process some scholars refer to as constitutional construction — holds obvious appeal for the court’s more liberal members. It gets a vigorous pushback from Lawrence Lessig, a Harvard Law School professor who is representing the rogue electors from the two states. Conceding that “our current political culture views the power of presidential electors differently from how the Framers did,” Professor Lessig warns the court that “the expectations of the public have not amended the Constitution.” In the aftermath of the 2016 election, Professor Lessig, who actually embarked that year on a brief presidential campaign of his own, was the most prominent of several academics who declared that Republican electors had a duty to deny Donald Trump the presidency. He publicly offered to provide “strictly confidential legal support to any elector who wishes to vote their conscience.” He will argue on behalf of the rogue Washington electors. His brief adds: “For the states to prevail in these cases, this court must conclude that the Constitution can be amended by custom.”

The Supreme Court’s announcement this week that it will hold oral arguments via teleconference for the first time in its history has a small group of America’s top attorneys prepping for the most important phone calls of their careers. The court said that it will hear 10 arguments over the first two weeks in May, including blockbuster disputes over the Electoral College and whether President Donald Trump can keep his tax records shielded from investigators. The issues are weighty, whether they are discussed in a basement office over a cell phone or inside the Supreme Court’s historical Corinthian building. But lawyers who will be arguing before the court are still adjusting...In interviews, lawyers expressed overwhelming relief that the court was moving forward with arguments, even as some worried about kids and dogs being overheard on the phone. The most pressing concern, unanimously, was about how to gauge the justices’ reactions without body language cues. “The opportunity to see people, and how they are understanding or not understanding what you’re saying, is very important,” said Lawrence Lessig, the Harvard Law School professor and 2016 Democratic presidential candidate, who will represent Electoral College voters next month in a dispute over whether they may disregard their state’s popular vote. Lessig said he had already been doing moot courts, or rehearsals, over the videoconferencing platform Zoom. Now, he will “definitely” be doing moots by phone, he said.