Lawrence Lessig

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.

An op-ed by Lawrence Lessig:  Gerrymandering is obviously democratically obnoxious. With modern technologies, it’s also increasingly democratically dangerous. It is inconsistent with the principles of equality and free association. Without doubt, it should be excised from our republic. Yet the fury generated by Chief Justice John G. Roberts Jr.'s opinion last month declining to end the practice shows precisely why Roberts may have been right.

Lawrence Lessig has a twinge of regret about not joining the massive field of candidates in the 2020 Democratic presidential primary, so he’s doing the next best thing — starting a podcast to interview and cajole them to support his agenda of political reforms. The prominent Harvard Law School professor and political activist briefly ran for president in 2016, an experience that he describes as both “the worst of times” and “the coolest thing I've ever done.”...So instead, he’s using his new podcast to go deep with candidates on campaign finance reform, voting rights, gerrymandering and more, and to push what he calls "POTUS 1” — a play on the name of a similar bill House Democrats’ passed this year called HR1.

Two veterans of the Microsoft antitrust battle that raged 20 years ago have some advice for government regulators seeking to curb the power of today's tech giants. In conversations with Business Insider, Lawrence Lessig, who briefly served as a special master in the Microsoft case, and Alan Kusinitz, who headed up the legal team representing state governments, stressed the importance of policing anticompetitive behavior even if it falls short of a company break-up, the outcome that never materialized in the Microsoft case....The case "was extraordinarily important in creating an environment where people felt free to innovate without the fear of being destroyed by Microsoft," said Lessig, a professor at Harvard Law School.

In his new book, "Fidelity and Constraint: How the Supreme Court Has Read the American Constitution," Harvard Law Professor Lawrence Lessig looks at how the Supreme Court has managed to protect its institutional integrity throughout its history. We also look at the importance of maintaining the non-partisan nature of the Supreme Court moving forward.

An op-ed by Lawrence Lessig: The wires were abuzz last week with news that the presidential candidate Pete Buttigieg was returning $30,000 in contributions from lobbyists. He has now joined many other Democratic candidates in swearing off particular kinds of money, whether from corporate Pacs or lobbyists. Since Beto O’Rourke launched his campaign for Senate in 2017, this type of reform-through-abstinence has become a single metric for whether a candidate is a reformer for democracy. If you don’t give up corporate cash, then you can’t be for us. But this is an odd and fake measure of reform. The important question is not how you get elected, but what your fundamental commitment is if you are elected. Money from Pacs and lobbyists is actually among the most moderate, and least polarizing of the money in American politics today. Removing it alone won’t fix democracy. And this obsession with where the money comes from obscures the real questions about what type of reformer a candidate would be.

Sen. Kirsten Gillibrand, D-N.Y., unveiled a plan on Wednesday to give every voter up to $600 in what she calls "Democracy Dollars" that they can donate to federal candidates for office. ... An ethics reform bill in Congress backed by Democratic leaders in the House and Senate would match small donations with six times as much money in public funds. It includes a "my voice voucher" program similar to Gillibrand's but much smaller in scale: It would test the idea as a pilot program in select locations and the vouchers would be for only $25. "Gillibrand's plan is the most ambitious adoption of the idea that I think we've seen so far," Lawrence Lessig, a Harvard law professor and former presidential candidate who has advocated for the voucher concept, told NBC News.

A prominent political activist speaking in San Rafael on Thursday made a case that there is only one issue of any consequence facing the nation: campaign finance reform. On a day when the national media could talk of nothing but the release of Robert Mueller’s redacted report on the 2016 election and whether Donald Trump conspired with Russia, Lawrence Lessig, speaking to a sold-out house at Dominican University of California, never mentioned the controversy.

Americans have the longest, most expensive and arguably most complex system of electing a head of state in the world. After all the debates, caucuses, primaries and conventions, the person who gets the most votes can still lose -- as happened most recently in 2016, when Republican Donald Trump won the White House. It’s a system that baffles non-Americans and some Americans as well, and it’s again spurring talk of change. Several Democratic presidential contenders including Senator Elizabeth Warren have called for letting voters pick their leader directly. ...Warren is among several Democratic senators who have proposed amending the Constitution to do away with the Electoral College. A nonprofit group founded by Harvard Law School Professor Lawrence Lessig has filed lawsuits in several states seeking to divide electoral votes according the share of the popular vote, instead of as winner-take-all.

We’re joined by Harvard law professor and former presidential candidate Lawrence Lessig for a conversation about the power of money in politics, specifically, the money primary. He’ll be in Rochester as a guest of SUNY Geneseo, but first, he’s our guest on Connections.

The law professor Ronald S. Sullivan Jr. is among the most accomplished people at Harvard. He has helped to overturn scores of wrongful convictions and to free thousands from wrongful incarceration. ... Sullivan faces this “clamor of popular suspicions and prejudices” because he agreed to act as a criminal-defense attorney for an object of scorn and hatred: Harvey Weinstein. ... Catharine MacKinnon, Harvard’s James Barr Ames Visiting Professor of Law, emailed: The issue is not whether Ron can represent reviled clients accused of crimes and still be the faculty dean of a college. Of course he can. The issue is substantive. ...The Harvard law professor Lawrence Lessig echoes the argument that it’s possible to be a survivor of sexual assault and feel comfortable with Sullivan’s choice. ...“The skills, capacities, and dispositions that would help to make a person a valued defense counsel are also the skills, capacities, and dispositions that would help to make a person a valued Faculty Dean,” [Randall Kennedy] argued.  ... The Harvard professor Jeannie Suk Gersen emailed me her concerns with such “processes”: "Professor Sullivan has chosen to represent and defend persons whom many people would not defend. Strong disagreement with those choices is of course part of the exploration of differences of principle and opinion that we’d hope for in a university." ... “Little more than half a century ago, mainstream lawyers were frightened away from defending alleged Communists who faced congressional witch hunts, blacklisting, criminal trials, and even execution,” Harvard Law’s Alan Dershowitz wrote. ... The Harvard professor Janet Halley calls Harvard’s actions “deeply disturbing.” She explained in an email: The right to counsel even for the most despised defendants, the basic role of counsel in our legal order, the presumption of innocence, academic freedom, and the right of University employees to assist persons accused in the University’s Title IX proceedings—are all implicated here. ... The Harvard law professor Scott Westfahl, however, defended the idea of a climate review, also by email. ... “We are all better off as a result,” and he noted, “I completely support the right of Professor Sullivan, an extremely talented defense lawyer, to take on a very difficult case. Should Mr. Weinstein be convicted, there will be absolutely no doubt that he received a fair hearing with the best possible defense counsel.”

An op-ed by Lawrence Lessig:  The New Hampshire Legislature, now controlled by the Democratic Party, had an extraordinary opportunity to allow voters in New Hampshire to speak more clearly in the upcoming 2020 presidential primary. Last week, the House Election Law Committee decided to keep the voters quiet. The issue is how voters will be allowed to express their preferences through their primary vote. The tradition is that voters vote for one candidate and one candidate only. The candidate who wins the most votes is then declared the winner. But obviously, in a field of a dozen candidates, “the winner” is an ambiguous idea. If one candidate gets 22 percent of the vote, and the rest get less, in what meaningful sense does that candidate represent the will of New Hampshire voters? More importantly, given the gaggle of candidates we know will run, how do voters decide whom to support? Does a vote for one candidate not likely to win waste that vote? Should the voter pick the less compelling candidate, because she believes others are likely to pick that candidate, too? This conundrum is what the system called “ranked choice voting” is intended to solve.

Harvard law professor Larry Lessig has been in New Hampshire often enough for political advocacy that he knows what will get lawmakers’ attention here, and he got right to the point Tuesday: He thinks our presidential primary is in danger. Lessig was testifying in favor of a bill to change the 2020 primary to ranked-choice voting, which would allow people to vote not just for a single candidate for each office, but mark the ballot to rank all the hopefuls from their top choice to their bottom choice.

Although more than a dozen Democrats may be running for president in 2020 — including its governor — Washington still has some unfinished legal business from the 2016 election, which the state Supreme Court tackled Tuesday. Three members of the Washington Electoral College in that last election asked the court to void the $1,000 fine the state charged them for breaking their pledge and voting for someone other than Democratic nominee Hillary Clinton, who won the most votes in the state. ..."The question was not whether they were right (to switch). The question is whether they had the right," attorney Lawrence Lessig argued in the hearing. "An elector is a chooser," he said, not a mere robot or clerk.

As prominent members of the U.S. Senate, Mitch McConnell and Rand Paul each has a well-stocked political action committee, but Kentucky’s two Republican senators could hardly be more different in how they raise and spend their PAC money. Paul spent much more on travel, food and drink combined last year than he did on the original purpose for such politician PACs – to use this separate political stash to make contributions to other like-minded candidates. ... Lawrence Lessig, a campaign finance expert who is the Roy L. Furman professor of law and leadership at Harvard Law School, said for many the leadership PAC has become a device for modestly paid members of Congress to live like those in Washington’s elite professional class of lawyers, lobbyists and executives. “As long as what you’re doing can be tied to the business of building political support for your movement, you get to expense that to your leadership PAC,” Lessig said.  “So you go to dinner at one of the fancy restaurants in Washington and you roll up a $600 bill for the three or four of you. As long as you spend some part of that dinner talking about how you’re going to get your party in power, or what strategy should be adopted to rally more support for your party, that becomes expense-able.”

Three Democratic presidential electors from Washington state who joined a longshot effort to deny Donald Trump the presidency in 2016 are challenging the $1,000 fines they received for breaking their pledge to support their party’s nominee. The three agreed to support Hillary Clinton in the Electoral College after Clinton won the popular vote in Washington. ...The trio’s lawyer, Harvard Law professor Lawrence Lessig, told the Washington Supreme Court on Tuesday the fines violated their First Amendment rights. An attorney for the state said the fines fell within its authority.

During the last presidential election, four of Washington's Democratic Electors broke their pledges to represent the state's popular vote and, instead, cast their electoral votes for candidates other than Hillary Clinton.  Three electors voted for former Secretary of State Colin Powell, as a Republican compromise candidate, as part of a national effort urging Republican electors nationwide to do the same. A fourth elector voted for Faith Spotted Eagle, an elder in the Yankton Dakota tribe. ...KUOW spoke too the trio's attorney, Harvard professor Lawrence Lessig, who is asking the court to overturn their fines.  "We think it's pretty clear, under the Constitution, that Washington's not allowed to do that because these electors, though selected/appointed by Washington, are actually acting to perform a federal function and can't be controlled by a state," Lessig said. Lessig told KUOW he hopes the issue is settled ahead of the 2020 presidential election to prevent further confusion.

An op-ed by Stephen Mihm: How safe is Federal Reserve Chair Jerome Powell’s job? After President Donald Trump threatened to fire him several weeks ago, Powell upped the ante by declaring that he would refuse to resign if Trump tried to get rid of him, effectively drawing a line in the sand. ... The court also drew a hard and fast distinction between executive officers under the direct control of the president (e.g. cabinet heads) and the officers of independent agencies. And yet, as the Bloomberg Opinion columnist Cass Sunstein and his fellow legal scholar Lawrence Lessig observed in a 1994 law review article, the court “has not said what ‘good cause’ means. The Court has also failed to define “inefficiency, neglect of duty, or malfeasance in office … There is no controlling judicial decision on how ‘independent’ the independent agencies and officers can legitimately claim to be.”