Lawrence Lessig

The Supreme Court, breaking with longstanding tradition because of the coronavirus pandemic, said Monday it will hear oral arguments by teleconference in May, including in cases about the potential disclosure of President Trump’s financial records. “In keeping with public-health guidance in response to Covid-19, the Justices and counsel will all participate remotely,” the court said in a written statement, adding that it will share more details “as they become available.” The court for the first time will transmit a live audio feed of its sessions, allowing the public to hear the arguments as they unfold...Lawrence Lessig, a Harvard law professor who will argue on behalf of so-called faithless electors from the 2016 election, said the teleconference format would present challenges. “It’s difficult to do an argument like this without the opportunity to have eye-to-eye contact with justices,” he said. “The most important thing in an oral argument is to understand where they’re getting what you’re saying, and where they’re not getting what you’re saying,” something advocates pick up from facial expressions and body language. “We’re going to be thinking through the strategy of what the right response to that is—do you package your points more concisely, or more comprehensively?” Mr. Lessig said.

The Supreme Court’s plan to hold its first-ever arguments by phone next month introduces special challenges for those presenting their cases, including gauging the full reactions of the justices, high court advocates said. “We’re in a new frontier here,” said Colorado Attorney General Phil Weiser, who will argue remotely in an election case on behalf of the state. While lawyers are thankful that the court is showing historic flexibility amid the coronavirus pandemic and moving forward with their cases beginning May 4, they wonder how things will ultimately work via phone... “The Court’s decision to allow argument via teleconference in some of its more time-sensitive cases” like these “perhaps reflects an awareness that it could be important to decide some of these issues before the next election cycle,” said Bryan Cave partner Barbara Smith, who clerked for Justice Samuel Alito in the court’s 2015 term...Perhaps the justices cherry-picked the cases they thought would be easier to decide, said Harvard law professor Lawrence Lessig, who will be arguing one of the faithless elector cases. And while telephone arguments are a first in the Supreme Court, some advocates have experience working remotely. Weiser noted that his office has been conducting virtual meetings during the Covid-19 outbreak, and Lessig said he’s gotten more comfortable with remote working by teaching remotely for the past three weeks.

The coronavirus pandemic has put on indefinite hold a major portion of the U.S. Supreme Court’s docket, including a multibillion-dollar clash between software giants Google and Oracle Corp. and cases that could affect President Donald Trump’s re-election chances. What was supposed to have been a drama-filled spring at the high court has instead become a season of waiting, especially for the lawyers and litigants in 20 arguments that had been scheduled for March and April. The court has postponed 11 of those cases and could do the same soon for the remaining nine...Similarly, the court had been aiming to resolve clashes over the Electoral College, the body that will formally select the next president, before any election controversies may arise. At issue in cases scheduled for argument April 28 is whether states can stop “faithless electors” who try to cast a vote for someone other the candidate who won their state’s balloting. “We’ve gotten no indication about whether it’s going forward,” said Lawrence Lessig, a Harvard Law School professor and the lawyer for two groups of electors who say they have the right to vote as they please. But “we’re preparing as if it is.”

An attorney for Micheal Baca, a former Colorado member of the Electoral College, told the U.S. Supreme Court this week that the state of Colorado unconstitutionally violated Baca’s right to vote for the presidential candidate of his choice in 2016, calling it an act without precedent in American history. The state’s punishment of Baca, if it stands, would allow state governments to stop the Electoral College from electing candidates who have not released their tax returns, not visited the state, or who support policies the state government opposes, argued the attorney, Lawrence Lessig of Harvard Law. “A state’s power to appoint electors does not grant it the power to control or remove appointees,” he wrote in a legal brief Monday...In his brief Monday, Lessig often cited the Constitution and American history. There were more than 180 instances of electors voting against their state’s wishes — what Lessig calls “anomalous electoral votes” — without punishment until 2016, he told the Supreme Court. In 1968, for example, an elector chosen to support Richard Nixon voted instead for George Wallace. The matter was debated in Congress and it was determined the vote for Wallace should count. “Voting is the core act of discretion and free judgment on which our system of constitutional government depends,” Lessig wrote, adding that Electoral College voting “may not be controlled by a state.”

Members of the Electoral College get their authority from the US Constitution, not states, and shouldn't be punished for voting their conscience when it comes to presidential nominees, Harvard professor Lawrence Lessig told the Supreme Court in a court filing Monday. The case, which the justices will hear next month with a ruling expected by July, adds another hot-button political issue to the Supreme Court's docket in the middle of the presidential election... "This Court should restore the practice that has governed for more than 220 years and make clear that while states have plenary power 'to appoint' electors, it is the 'Electors' who have the power 'to vote' free of state control," wrote Lessig of the advocacy group Equal Citizens, representing the Colorado elector and the Powell voters. A state must appoint electors, but once that happens, Lessig argues, its power ends...Lessig suggests a hypothetical to the Supreme Court, asking that if states are allowed to enforce who electors vote for, there may not be a way to stop them from adding other conditions such as blocking candidates who don't release their tax returns. "If a state has the power to direct electors to vote consistent with the election returns, a state has the power to forbid electors from voting for candidates who fail to release their taxes returns, who fail to visit the electors' state, or who fail to commit to any political position deemed by a state legislature to be important and correct."

In an era when millions of songwriters upload music to the internet—and just about any song can be plucked from obscurity by TikTok teens—it seems inevitable that the same melodies end up in different songs. There have been a number of high-profile music copyright-infringement cases, including a multimillion-dollar decision against Katy Perry for her song “Dark Horse.” A jury found that she’d infringed upon the copyright of Flame, a Christian rapper who’d posted a song with the same melody to YouTube, even though Perry insisted that she’d never heard of the song or the rapper. For some musicians, musicologists, and lawyers, the verdict felt scary; after all, large numbers of songs now live on SoundCloud and YouTube. It became thinkable to ask: Could the world run out of original melodies? ... “I just don’t get it,” Lawrence Lessig, an eminent copyright scholar at Harvard Law School, told me in an email. “Whether or not melodies can be represented in math, they are not just math. So that seems like a dead end.” Lessig did agree that it’s unfair that anyone can be dinged for “copying” work even if they could not be shown to have consciously done so. “The whole doctrine of subconscious copying is absurd. So I get the motivation,” he said.

An article by Lawrence Lessig: After almost two years of hard work, suffering thousands of hours of television ads, endless digital ads, house parties, town halls, coffee shop speeches, and millions and millions of robocalls, New Hampshire voters have given us their insight in to the 2020 Democratic presidential campaign: Bernie Sanders convinced 25.6% of them, Pete Buttigieg won over 24.1%, and Amy Klobuchar surprised everyone by rallying 19.6%. But the views of the rest of New Hampshire, more than 30% of the votes cast – which is more than total votes of the frontrunner – will not count in the final results because no candidate getting less than 15% of the vote will get any delegates from New Hampshire. We could have learned so much more. No one should underestimate the gift that New Hampshire gives to the rest of America. Most of America pays little attention to primary races. Most never attend a public meeting or meet a candidate running for any federal office. But New Hampshire takes its first-in-the-nation primary responsibility very seriously. Almost 300,000 turned out, about 20% higher than in 2016. And that is on top of a practically endless engagement with candidates in every possible public place – as well as countless living rooms across the state.

They need it, but they resent that they need it. They've acquired it, but are almost embarrassed by it. They rail against it, but end virtually every speech or debate closing remarks asking people to please give it to them. The Democratic presidential contenders have a love-hate relationship with money, which is essential to running a presidential campaign but which – among Democrats at least – carries a sort of dirty quality that has contenders competing not just for dollars but for dollars they claim are cleaner than everyone else's...Modern politicking has gotten very complicated for the Democratic field, which is seeking to appear the most sympathetic to poor and middle-class Americans while simultaneously struggling to amass war chests that will force the others out of the race. "On the one hand, I think it's good Democrats are concerned about money. I do think money is a corrupting influence in our government," says Harvard Law School professor Lawrence Lessig, author of the book "They Don't Represent Us: Reclaiming Our Democracy" and a one-time Democratic presidential candidate who ran on a platform of reforming money in politics. But "I also think the way it's playing out in the presidential election is a little bit crazy," he adds.

The U.S. Supreme Court last week agreed to hear Colorado’s appeal of a federal court ruling that allows presidential electors to ignore the will of the people and back the candidate they want. Colorado Attorney General Phil Weiser and Colorado Secretary of State Jena Griswold last October petitioned the court to hear the case, hoping to avoid chaos in November...Baca, one of Colorado’s nine electoral voters, tried to cast his ballot for then-Ohio Gov. John Kasich, a Republican, instead of Clinton as part of an attempt by a handful of electors across the country to block Republican Donald Trump from becoming president...Two other electors – Polly Baca and Robert Nemanich – intended to follow Baca’s lead but ultimately did not. The three have battled the Colorado Secretary of State’s Office in court since the 2016 election. They are represented by Equal Citizens, led by Harvard Law professor Lawrence Lessig. The three have been referred to as “faithless” or “Hamilton” electors, the latter referring to U.S. founding father Alexander Hamilton, who helped outline the role of presidential electors in the Constitution. “We are glad the Supreme Court has recognized the paramount importance of clearly determining the rules of the road for presidential electors for the upcoming election and all future elections,” Lessig said in a written statement. “My team and I will get right to work on our briefs, and we look forward to a full and fair hearing.”

QUESTION: Senators who have already said how they are going to vote, and have expressed a bias, are they automatically guilty of perjury when they take their 'impartiality' oath? ANSWER: No, thanks to special protections the Founding Fathers gave to Congress. SOURCES: Robert Ray - partner at Zeichner Ellman & Kraus LLP, James Ziglar - Senior Counsel at Van Newss Feldman LLP, Lawrence Lessig - Professor at Harvard Law School...Lawrence Lessig, a law professor at Harvard University, referred our researchers to an Opinion piece he penned in The Washington Post. "To swear a false oath is perjury — the crime President Bill Clinton was charged with in his impeachment," Lessig wrote in the Washington Post. "Yet given the Constitution’s speech or debate clause, a senator likely could not be charged with perjury for swearing falsely on the Senate floor. Instead, it is the Senate itself that must police members’ oaths — as it has in the past." So we can verify that senators are not automatically guilty of perjury, if they've already expressed how they will vote on impeachment.

As the 2020 race heats up, the Supreme Court agreed on Friday to hear a dispute involving the complex U.S. presidential election system focusing on whether Electoral College electors are free to break their pledges to back the candidate who wins their state's popular vote, an act that could upend an election. ..."We are glad the Supreme Court has recognized the paramount importance of clearly determining the rules of the road for presidential electors for the upcoming election and all future elections," said Lawrence Lessig, a lawyer for the faithless electors sanctioned in Washington and Colorado.

The U.S. Supreme Court has agreed to hear two cases challenging state attempts to penalize Electoral College delegates who fail to vote for the presidential candidate they were pledged to support. ..."This court should resolve this conflict now, before it arises within the context of a contested election," Lawrence Lessig, a Harvard law professor who is the attorney for the Washington state electors, said. "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."

QUESTION: Senators who have already said how they are going to vote, and have expressed a bias, are they automatically guilty of perjury when they take their 'impartiality' oath? ANSWER: No, thanks to special protections the Founding Fathers gave to Congress. ... Lawrence Lessig, a law professor at Harvard University, referred our researchers to an Opinion piece he penned in The Washington Post. "To swear a false oath is perjury — the crime President Bill Clinton was charged with in his impeachment," Lessig wrote in the Washington Post. "Yet given the Constitution’s speech or debate clause, a senator likely could not be charged with perjury for swearing falsely on the Senate floor. Instead, it is the Senate itself that must police members’ oaths — as it has in the past."

The Supreme Court on Friday said it will consider whether states may punish or replace “faithless” presidential electors who refuse to support the winner of their state’s popular vote, or whether the Constitution forbids dictating how such officials cast their ballots. ...Challengers say the Constitution leaves up to states the appointment of electors, but that is all. “There is no mechanism for state officials to monitor, control, or dictate electoral votes,” said a brief filed by Harvard law professor Lawrence Lessig and his group Equal Citizens. “Instead, the right to vote in the Constitution and federal law is personal to the electors, and it is supervised by the electors themselves.”

Bernie Sanders is a fierce critic of the Supreme Court’s Citizens United ruling, which removed most limits on corporate and union spending on politics. The “disastrous” decision, he repeatedly warns voters, is transforming America from a democracy to an “oligarchy” where billionaires can “buy elections"...After reviewing dozens of studies analyzing the impact of contributions on lawmakers’ voting records, the researchers settled on what seemed like a pretty clear answer: Donations don’t buy you much...Lawrence Lessig disagrees. Vehemently. A Harvard law professor who ran for president in 2016 on an anti-corruption platform, he says you can’t learn much by analyzing the effect of lobbyists’ donations on representatives’ final votes on legislation. “There are 10,000 places between the idea and the final vote where influence can be exercised — and that’s indeed what we see," he says. "The lobbyists don’t stand on the floor of Congress and say, ‘don’t vote for this’ or ‘do vote for that.’ They go to a committee and say, ‘Look, we don’t want this bill to come up. And if this bill comes up, we want it to be amended in the following way.’”

An article by Lawrence Lessig: Before the Senate begins its trial to determine whether the president should be convicted of the charges for which he has been impeached, the jury — the members of the Senate — must be sworn to service. The oath is mandated by the Constitution; its language, set by Senate rules, requires each senator to swear to “do impartial justice according to the Constitution and laws.” To swear a false oath is perjury — the crime President Bill Clinton was charged with in his impeachment. Yet given the Constitution’s speech or debate clause, a senator likely could not be charged with perjury for swearing falsely on the Senate floor. Instead, it is the Senate itself that must police members’ oaths — as it has in the past.

One of the biggest divides in the race for the Democratic presidential nomination is whether Donald Trump is a cause or a symptom of the current dysfunction in American politics... Two new books -- "They Don't Represent Us," by Lawrence Lessig, and "The Great Democracy," by Ganesh Sitaraman -- are firmly in the big, structural change camp, making a strong case that there is no normal to go back to. "The crisis in America is not its president," Lessig writes in his opening pages. "Its president is the consequence of a crisis much more fundamental." That crisis is the state of democracy itself. You could fill an entire bookshelf with works about the crisis of democracy in the Trump era, but Lessig, a professor at Harvard Law School, has been eloquently hammering this point longer than most. He isolates the problem with American democracy to one word: "unrepresentativeness." Voter suppression undermines free and fair elections, gerrymandering allows politicians to pick their preferred electorate, the Senate and the Electoral College favor small states and swing states over the rest of the country and the post-Citizens United campaign-finance system gives a tiny handful of billionaires far more clout than the average small donor. "In every dimension, the core principle of a representative democracy has been compromised," he writes. This is by now a familiar critique, but Lessig tells it with skill, citing a plethora of studies and historical examples to make a persuasive case about the unrepresentativeness of America's political institutions. He suggests a wide range of policies to fix this, ranging from practical ideas like universal automatic voter registration and a $100 "democracy coupon" for every voter, to more controversial ones, like scrapping the Electoral College and reducing federal funding for states like Georgia that disenfranchise their voters.

An op-ed by Lawrence Lessig: As the Democratic Primary kicks into high gear, it is increasingly clear that 2020 could give America a choice that it has not had since Richard Nixon resigned: An election that promises critical change to our political system. At least 7 of the remaining candidates in the Democratic primary have committed to making fundamental government reform their first priority in office. We have not been this close to real change of America's politics since the Voting Rights Act of 1965. It is therefore time that the candidates' plans -- and how they differ -- become the focus of more media attention. Michael Bennet, Pete Buttigieg, Tulsi Gabbard, Amy Klobuchar, Tom Steyer, Elizabeth Warren and Andrew Yang have promised both to make this reform happen, and to happen first. This itself is a first in the history of American politics.

When Americans are not equally represented in our government, our democracy is endangered. That’s what’s happening now, argues law professor Lawrence Lessig in his latest book, They Don’t Represent Us: Reclaiming Our Democracy. “They,” Lessig tells me, refers both to our elected representatives, as well as the “voice” that they are representing. Lessig has been an outspoken critic of the Electoral College, campaign financing, and gerrymandering, and is a frequent commentator on these issues. In 2016, he took matters into his own hands, running for president on a platform of campaign finance reform. In his book, Lessig proposes some solutions to these problems, including penalties on states that suppress voters, incentives to end gerrymandering, and “civic juries,” which would be a system to have representative bodies make decisions on behalf of constituents. I spoke to Lessig, a professor at Harvard Law School, about the role of education in democracy and about why campaign funding is a critical obstacle to democracy, among other subjects. Here is our conversation, edited for length and clarity.