Lawrence Lessig

In his new book, Harvard Law Professor Lawrence Lessig argues that American democracy is broken not only because of partisanship in Washington, but also because the American system of government does not properly ensure representation under the ideal of "one person, one vote." To discuss what ails us — and how to potentially fix it — Jim Braude was joined by Lessig to discuss "They Don’t Represent Us: Reclaiming Our Democracy."

Over the course of the past two years — the past 18 months, really — President Trump has talked about insurance policies more than 90 times. This is the sort of thing presidents talk about — who’s covered, who isn’t, closing the gap. But that’s not what Trump’s talking about...He’s instead propagating a conspiracy theory about the origins of the investigation into Russian interference in the 2016 election and possible overlap with his own campaign...That conspiracy theory holds that rogue FBI agents who disliked Trump launched the probe before the election to boot Trump from office once he won...The alleged plot was revealed in a text message made public last year, one of a giant set of messages released as Republicans investigated the agents. Harvard’s Lawrence Lessig saw this coming. Not this particular example, but things like this. In October 2009, he wrote an essay for the New Republic called “Against Transparency,” a provocative title for an insightful assessment of what the Internet would yield. Lessig’s argument was that releasing massive amounts of information onto the Internet for anyone to peruse — a big cache of text messages, for example — would allow people to pick out things that reinforced their own biases.

In new book, Lawrence Lessig says voter suppression, gerrymandering, big-money politics, and the Electoral College undermine democracy

Ask people in America whether “the people” rule, and “most would find the idea somewhat quaint,” writes Lawrence Lessig in the introduction to his new book They Don’t Represent Us (Dey St., $26.99), published for election day this year. “Everywhere, there is the view that democracy represents the elite.” He continues: That an oligarchy or a monarchy would reward an elite is understandable. It’s built into the DNA. For a democracy to favor the elite over the people is to add insult to suffering. It is to betray the very promise at the core of the institution. It is to reveal, in a word, that the institution has been corrupted. Lessig, who is Furman professor of law at Harvard Law School, argues that the responsibility for this failure lies partly with the system of elections in the United States, that elevates unrepresentative candidates to political office, and partly with “us,” the voters, who have become increasingly partisan and/or uninformed about critical issues.

In this edition: Why it matters that Joe Biden said “yes” to a super PAC, what happened at South Carolina's criminal justice forum, and whether the killing of Abu Bakr al-Baghdadi will affect the election. I still don't know what “died like a dog” is supposed to mean, and this is The Trailer. Until Thursday, when Joe Biden's presidential campaign ended its opposition to a supportive super PAC, Biden convincingly explained why this would be a bad idea. In his 2017 memoir “Promise Me, Dad,” Biden revealed that he would have refused super PAC support had he run in the 2016 primary. ... Larry Lessig, an academic and activist who launched a super PAC and then a 2016 presidential campaign to demand campaign finance restructuring, said that Biden's approach to super PACs was less important that what he committed to do if he won in 2020. “I always find this distracting,” Lessig said. What mattered was not how Biden's allies raised money; it was whether he, or any other Democrat, pledged to replace the campaign money system with some kind public financing. “That would be one thousand times more important than whether or not he had a super PAC. We need to focus people on the real issue.”

In November, Seattle will elect a new city council. It is the second election in which the city’s democracy vouchers are in play, a first-of-its-kind financing program for taxpayers, which is either, depending on who you ask, the roadmap to fixing big money in politics across America or responsible for a $3 million jump in PAC spending. In 2015, Seattle overwhelmingly passed Initiative 112  with 63 percent of the vote. The idea first surfaced in the broader public sphere in 2011, 13 months after the Citizens United decision allowed a new flood of corporate money into politics. Harvard law professor Lawerence Lessig proposed a counterbalance in a New York Times op-ed: “more money.” Lessig argued that if corporations were able to classify vast sums of money as protected speech, it might be time to start asking how to match that capitalistic tide with money from ‘the people.’ “[I]magine a system that gave a rebate of that first $50 [we pay in taxes] in the form of a ‘democracy voucher,'” Lessig proposed.

With the 2020 race for the White House in full swing, speakers at a Harvard panel on Saturday sharply differed on whether an interstate compact to effectively disable the Electoral College and move to a national popular vote offers an antidote to problems with the presidential selection system. “We are not seeking perfection. We are seeking a more perfect union,” National Popular Vote advocate Rob Richie said during the discussion, part of a conference at Harvard Law School on the history and future of the Electoral College hosted by the Harvard Law & Policy Review...While he backs the compact, in a keynote speech Lawrence Lessig, the Roy. L. Furman Professor of Law and Leadership at Harvard Law School, outlined a new proposal for a constitutional amendment he suggested could garner broader support. The proposal would award the support of each state’s electors to the top two candidates on a “fractional proportional” basis, meaning they would receive votes equal to their percentage of the overall state results. It also includes a provision aimed at lessening what some critics consider the unfair advantage small states enjoy in the allotment of electoral votes. “If we had fractional proportional allocation by states, the swing-state problem disappears,” Lessig said. “Presidential candidates would … at least try to campaign to everyone throughout the whole country.”

Reed Hundt, the former chairman of the United States Federal Communications Commission and current chairman of Making Every Vote Count, jokes that he has a unique boast. He went to high school and law school with the only two people alive today who won the popular vote for U.S. president, but didn't end up getting the job: Al Gore and Hillary Clinton. The reason? The Electoral College, the idiosyncratic presidential election process enshrined in Article II, Section 1 of the U.S. Constitution.  Hundt was one of the more than 20 speakers at “The Electoral College: Open Questions, Paths Forward” conference at Harvard Law School (HLS) this Saturday, organized by professor Lawrence Lessig and the Harvard Law & Policy Review. Lessig, founder of Equal Citizens and Equal Votes, was a candidate for the Democratic party’s nominee for President in 2016, running on a platform of electoral reform. The mismatched popular vote and Electoral College results of that election saw Donald Trump elected as President, despite Hillary Clinton receiving nearly 3 million more votes. Trump’s ascendency has brought the skewed design of the Electoral College under more scrutiny, reignited interest in electoral reform, and added fuel to Lessig’s argument.

President Donald Trump’s decision not to release his tax returns in 2016 has spurred battles coast-to-coast on the state and federal level. Two states have passed laws in response to his refusal, which he has said is because he is under IRS audit. And Congressional Democrats have requested and subpoenaed his returns, saying they need them to assess how the IRS audits presidents. Those efforts have brought unique legal battles, and the outcomes could determine whether lawmakers or the public are able to scrutinize the president’s financial activity...“The California law does not add an additional ‘qualification’ because any candidate can easily comply with it merely by disclosing readily available and obviously relevant information,” said Laurence H. Tribe, a professor at Harvard Law School who focuses on constitutional issues. A free speech question is whether California could be seen as forcing Trump and other candidates to speak, in a certain sense, by producing their returns, said Lawrence Lessig, also a professor at Harvard Law School...“The idea that it’s not constitutional because it doesn’t serve a legitimate legislative purpose is just crazy talk,” Lessig said. While politics will always play a role in the decisions of lawmakers, Congress “certainly has the right to police the integrity of the executive branch of the president,” he said. That assessment fits into the Supreme Court’s jurisprudence, according to Howard Abrams, a visiting professor at Harvard Law School who focuses on tax issues. “Historically the Supreme Court has been reluctant to invalidate legislative action based on bad intent because if it could be done with good intent, they’ll just re-pass the law with a different record,” he said.

When liberals and progressives cite former Supreme Court Justice Anthony Kennedy’s best and worst rulings of the Barack Obama era, they typically praise his support for same-sex marriage in Obergefell v. Hodges while slamming him for his support for unlimited corporate donations in Citizens United v. the Federal Election Commission. The U.S. Supreme Court obviously isn’t going to be overturning Citizens United anytime soon given its swing to the right, but a group of 50 legal experts have another idea for ending that decision: a 28th Amendment to the U.S. Constitution. ...The legal experts, according to the Law & Crime website, have signed a joint letter they plan to release on Constitution Day that calls for a constitutional amendment ending Citizens United. Those who have signed the letter range from former Federal Election Commission Chairman Trevor Potter to Zephyr Teachout (a law professor at Fordham University in New York City) to two professors at the Harvard Law School: Lawrence Lessig and Laurence Tribe. The letter states, “As attorneys, law professors and former judges with a wide variety of political beliefs and affiliations, we are convinced that our nation’s current election spending framework is a root cause of dysfunction in our political system and requires fundamental reform.”

In a wide-ranging conversation about the state of our democracy with Equal Citizens founder and Harvard Law professor Lawrence Lessig, Gabbard also supported a wide range of specific democracy reforms, including the use of ranked choice voting, proportional allocation of electors in the electoral college, and getting big money out of politics to end corruption. She pledged democracy reform would be her first priority as president. “You’re a candidate who supports fundamental chance, who supports HR1,” said Lessig. “Would you support what we call POTUS1? Would you say that, like Nancy Pelosi, you think democracy reform is the first Congress should take up in 2021?”

There's a kind of academic corruption that most people have never considered. Not plagiarism. Not cheating on an exam. This is the kind of corruption that occurs when corporations and industry lobbying groups pay academics for expert testimony before Congress. Even the perception that such payments have occurred will result in an erosion of public confidence in scholarly research and in the impartiality of the academy. And the people most vulnerable to this ethical trap are those who believe they are doing good. As Furman professor of law and leadership Lawrence Lessig explains in this podcast, “Doing good can make you bad.” ... Lawrence Lessig: Well, I guess it confronted me quite viscerally when I was testifying before the United States Senate Commerce Committee about network neutrality. And just before I testified, I got an email from a senator who basically said, “I can’t believe you’re shilling for these big internet companies.” And I was shocked to think that he would have thought that I would be paid to give testimony. And then I realized that of course he thought that because basically everybody in that field was being paid to give testimony. And so when the senator heard what I was saying, he was filtering it on the assumption that I was being paid to say what I was saying and so therefore he wasn’t taking seriously what I was saying as an academic. And it was that moment I really thought we need a way, a better way, to either control what academics are doing in taking money to give public testimony like this or to at least signal that, I might be wrong, I might be biased, I might be focused on the next election. There are lots of reasons why you might want to discount what I'm saying, but I ought to have a simple way to say, look, don't discount what I'm saying on the assumption that what I'm saying, I'm saying because I'm trying to get money. That's the corruption of the integrity of the academy that I think that we have to be incredibly vigilant against.

Since the 2016 election, some Democrats have raged against the Electoral College as an anti-democratic institution that does not reflect the will of the people. Some Republicans have defended the institution as protecting the power of small states and preserving the federal system. But whether you like the Electoral College in theory or not, it turns out that the actual rules used to implement its use are creaky and dangerous. Indeed, thanks to new conflicting rulings, the institution could generate chaos and confusion in 2020 or in a future presidential election. In August, the United States Court of Appeals for the 10th Circuit heldthat the state of Colorado violated the Constitution in 2016 when it removed Micheal Baca, a presidential elector who acted “faithlessly” and voted for John Kasich over Hillary Clinton, who was chosen by the state’s voters. It followed a contrary ruling from the Washington state Supreme Court, which held that the state could fine electors $1,000 for being faithless. Now, Harvard Law professor Larry Lessig is planning to bring the Washington case to the United States Supreme Court—and in doing so, hopes to blow up the current Electoral College system.

Heading into what looks to be a hard-fought presidential election, the Supreme Court will likely be asked to resolve a lingering but fundamental question about the creaky, little-understood electoral college system adopted in 1787. ...Harvard law professor Larry Lessig, who founded the Equal Citizens project and argued the Washington state case, said the aim is to “reform” the electoral college. “We know electoral college contests are going to be closer in the future than they have been in the past, and as they get closer and closer, even a small number of electors could change the result of an election,” he said in response to the Colorado ruling. “Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election.”

Controversy over laws prohibiting members of the Electoral College from voting their conscience rather than the presidential candidate who won their state appears headed to the U.S. Supreme Court. A challenge is likely now that a federal appellate ruling this week split the courts over whether states can lawfully remove or sanction “faithless electors,” or those who stray. An unsual number did so in 2016 in the election of President Donald Trump. Harvard Law professor Lawrence Lessig, who founded the progressive non-profit Equal Citizens, said Electoral College outcomes are going to get closer, raising the possibility of a small number of electors changing an outcome. “Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election,” Lessig said.

In a ruling that kicks at the foundation of how America chooses presidents, a federal appeals court on Tuesday said members of the Electoral College, who cast the actual votes for president, may choose whomever they please regardless of a state’s popular vote...Lawrence Lessig, a Harvard law professor who founded the group that brought the case, Equal Citizens, said it was the first time a federal appeals court had ruled on whether electors could be bound in how they vote. Many states, including Colorado, have laws requiring electors to pledge that they will support the winner of the popular vote. The Constitution is mute on the subject. The appeals court noted that a handful of faithless electors have broken pledges to vote with their state’s majority since the presidential election of 1796. Equal Citizens wants the Supreme Court to review the issue before the 2020 election. Because of hyper-partisanship and demographic changes pushing the country into near evenly divided camps, Mr. Lessig said, soon there very likely will be a presidential election that yields a tie or near tie in the Electoral College. Then, many more electors other than Mr. Baca may seek to influence the results, producing chaos. “Whatever side you’re on, whether you think it’s a good or bad idea for electors to have freedom, the question ought to be resolved before there is a constitutional crisis,” Mr. Lessig said.

Under a new California law signed into law on Tuesday, President Donald Trump will be ineligible to appear on the state’s presidential primary ballot unless he first discloses his tax returns. ... Laurence Tribe, a professor at Harvard Law School since 1968 who is widely considered to be one of the most influential constitutional scholars in American history, immediately took to Twitter to preemptively rebuff arguments that the law unconstitutionally placed additional requirements on persons seeking the presidency. “California isn’t adding any requirements for the presidency — which it couldn’t do — but just ensuring that its voters are fully informed about all aspirants. This should survive the predictable constitutional challenge,” Tribe wrote. Also inclined to opine on the newsworthy legislation, Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School, said the California law “plainly” violates the U.S. Constitution. “Hey Dems, just stop. This law is plainly unconstitutional,” Lessig wrote on Twitter.