Interview: Harvard Law Professor Lawrence Lessig Talks Electoral Reform

Professor Lawrence Lessig (LESSIG2016.US/Creative Commons)

This interview is published on Rantt Media in partnership with The Hardy Report

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.

Edward Hardy: You have recently written a book titled ‘They Don’t Represent Us’, with one review stating that: “This book is brimming with promising and provocative proposals to fix campaign finance, gerrymandering, the electoral college, the filibuster and the mind-numbing effects of cable news and social media”, describing it as a “repair manual for government”. How do you even begin to fix a government and political system that, as you concede, has so many flaws?

Lawrence Lessig: The first step is to give people a concept of exactly what’s wrong with the system. I think everybody feels like something’s not working. Some people look at the money in politics problem and think that’s the reason it’s not working. Other people looking at the gerrymandering problem and think that’s why it’s not working. Everybody has their pet theory. What I tried to do in this book is to knit them together and to show that, in fact, all of these problems are the same problem. They all follow from a representative democracy that doesn’t allow citizens to be represented equally. If we could just embrace that core principle of a representative democracy and begin to build reform around that idea, I think we could begin to see change that could actually make a difference to the democracy.

Hardy: You note that the current system of government cannot be fixed and reformed with one election or one political figure. Is that part of the reason why the actions you propose haven’t occurred yet because, instead of focusing on reforms that might not come into effect until after their term has ended, politicians want to engage with smaller, short term policies that have immediately noticeable effects, so they can receive credit before they have to run for re-election?

Lessig: I think there’s an ordinary business model to being a politician. With the presidency of the United States, it’s very clear what that business model is. I was a believer in Barack Obama and I think when he first started running for president he genuinely wanted to fix the system. But I’m certain that the very first day he sat down as president with his chief of staff and said: ‘I’m going to take on the corrupting influence of money in politics and I’m going to fix the system’, Rahm Emanuel would have said to him: ‘You do that and you’re a one term president’.

To take on this system, you’ve got to take on your own party. That means you’ll not get a single significant piece of legislation passed, so, at the end of four years, people will look back and say: ‘You’re a total failure. It’s time to get rid of President Obama’. That argument is true. It’s actually the right understanding that any new president should bring to this question, which means that we can’t rely on normal politicians or the normal political process to fix this kind of problem. We have to build a movement or an understanding that’s above it or beyond it if we’re ever going to have a chance to do anything.

Hardy: One area where you are calling for reform is the Electoral College. Both Donald Trump and George W. Bush were elected President due to America’s Electoral College system despite the fact that they both lost the popular vote. What system would you seek to be put in place instead of the Electoral College?

Lessig: If we started from scratch today and thought about the questions the way the Framers of our Constitution thought about them, we obviously would pick a national popular vote. We’d have a single system for counting the vote and for running the administration of the vote. We’d cover the whole nation and every vote would be equal. But, equally obviously, we’re not going to be able to move to that system in America any time soon, because the Electoral College is built on the assumption that elections happen state by state. The question we need to think about now is how to modify that system to get close to the ideals of equal representation.

The core problem with the Electoral College is the fact that states have decided to give all of their electors to the winner of the popular vote in those states, so, if you get 50% plus one of the votes in California, you get every single elector in California. Regardless of the division and the state, the state gets represented as a single color, red or blue. What that means is the only states that matter in a presidential race are the states that could go one way or another, the so-called swing states.

In 2016, there were 14 states that were swing states. They saw 99% of campaign spending. In 2020, it’s probably 9 states, maybe 8 states, that will be swing states and they too will see 99% of campaign spending, because it doesn’t make sense to spend any time outside of the swing states. That means that the President of the United States cares deeply about what those people in those swing stakes want, but doesn’t care at all about what anybody else wants, because nobody else really matters to their election as president.

If States allocated their electors proportionally at a fractional level, then you would see every state matter to the president and you would see a president who is much more representative of America as a whole. The current system only benefits the swing states, but the other, say, 42 states would actually be better off if we had this alternative. So, I think there’s a way to get to this kind of reform and we certainly will be pushing for that in the next four years.

Hardy: We’re all familiar with how elections often focus on States like Florida or Michigan or Wisconsin, Pennsylvania. So, under your system, those people in the flyover states, as they’re called, would find themselves having a greater voice and that’s why you believe this would be a positive change that should be made?

Lessig: The principle is every state should matter. You shouldn’t be less important to the president because you happen to be a Democrat living in Texas or a Republican living in Utah. Republicans in Utah are overwhelming the majority of the voters in Utah but they don’t matter to the president, because the president knows if he’s a Republican, he’s going to win Utah. This would make it so everybody in the nation mattered and that’s what’s essential if we’re going to bring about a change to the current system, to make it so that we have enough support to bring about a constitutional amendment.

Hardy: You’ve advocated for a Second Constitutional Convention. Do you believe that’s the only way to secure reform of the Electoral College system, or is there an easier way, such as putting this question on the ballot paper in one election?

Lessig: I’m a law professor, so I’m going to quibble with the word you used. I don’t want a constitutional convention. I want a convention to propose amendments to the Constitution and the distinction is important because a constitutional convention in principle has the power to change the Constitution completely. I don’t think we need anything like that. We should get nowhere close to something like that. But a convention for proposing amendments to the Constitution is really important and critical because it’s the only way we can propose amendments that change the existing institutions in a way that the institutions don’t like. So, Congress is a core part of the problem of our existing Republic. It’s just a failed institution. We can’t count on that failed institution to fix itself. It’s just not going to do it. What I think we need to do is to recognize that if we’re going to bring about changes to these institutions, changes that could really matter to these institutions, we’re going to have to use a device that doesn’t depend on them. That’s what an Article 5 proposing convention would be and that’s what I support.

Hardy: During the last presidential election cycle, you ran for President on a platform of campaign finance reform and electoral reform. Why do you feel those issues have been pushed to the side since?

Lessig: I actually think there was enormous progress over the last four years. When I tried to become a candidate in 2016 and I said we had to focus on a fundamental package of reform, that included campaign finance reform, gerrymandering forum, election voting reform, people thought it was kind of crazy. They were like: ‘Nobody’s going to care about thinking about fundamental issues like that.’. Four years later, the House of Representatives has passed HR 1, which was exactly that package of reform.

Speaker Nancy Pelosi passed a package of reform that included public funding of congressional campaigns, the end of gerrymandering, and voting rights reform, as well as additional ethics reform. Our group, Equal Citizens, along with Represent Us and Citizens United, ran a concerted campaign to get every single candidate running for president to commit to fundamental reform. We got every Democrat except one to commit that within the first hundred days of his or her administration, they would have passed fundamental reform that would include each of those elements.

The problem is the one who didn’t make that commitment was Joe Biden, so we have a Democratic nominee who’s not yet committed to fundamental reform. That’s, of course, a terrible loss given the extraordinary success the movement had made over the last four years. But, I still think we should look at the success and recognize that signals the hope we have that something important could be done if we just get the right candidates to do it.

Hardy: Do you believe that given the support and the movement, particularly on the Democratic side, for these reforms, that, if Joe Biden is successful in this election, even though he did not make the same pledge as other candidates, that he will go ahead and pass these reforms because his party and those that will come out and vote for him believe in it?

Lessig: What I’ve come to find is that people either are invested and committed to this idea or they’re not. The critical thing is to get candidates for whom this is a really important commitment that they make central to their campaign. If you look at Hillary Clinton in 2016, her campaign was actually much better at articulating these issues and providing solutions than any other Democratic campaign. Indeed, she was better than Bernie Sanders on these issues. But she never really believed in them. She never really talked about them. She never made them central to what she was fighting for. And, so, even though she was on paper the best person on these issues, she was not somebody who actually delivered a commitment to them in a way that would make it plausible for other candidates to follow.

I don’t know where Joe Biden is. I hope that Joe Biden realizes why it’s so important that these reforms be taken up and taken up first. If he does realize that and he gets elected and we have a Democratic Senate, I hope that he pushes to make these reforms happen, because I’m pretty convinced that if he doesn’t then there’s no real chance to get anything else significant done and we’ll have another four years of stalemate.

Hardy: On your website, Lessig.org, you have a section titled the ‘Non-Corruption Principle’, where you state that you believe: “Behavior inconsistent with these principles, at least among professionals, is a kind of corruption.”. Do you see this as one of the driving forces behind your call for campaign finance reform, as members of Congress who rely on money from wealthy donors or corporations are corrupted by the money they’ve taken?

Lessig: It’s the same issue if you are an academic or you are a politician dependent on a very small number of funders to support your work. Those funders have enormous influence over you. If you haven’t built into the institution structures to assure your independence, they can leverage that dependence to control you. When academics are funded by industry who have an interest in the ultimate results of that research, that certainly will bend the research to benefit the industry, whether consciously or not. It’s just unavoidable that it will have that effect and the same thing applies with politicians.

When politicians spend 30% to 70% of their time raising money from a tiny, tiny fraction of the 1%, it just can’t help but be the case. They will bend in the direction of that tiny fraction of the 1% in order to make sure that tiny fraction continues to be happy about the support that they’ve been giving those candidates. So, I think it’s the same idea, just, you know, two different contexts.

Hardy: A key element of that non-corruption principle is also transparency, ensuring you clearly disclose any payments that might be seen as impacting views or policies for which you advocate. The current occupant of the White House, Donald Trump, has sought to do everything in his power to hide his tax returns and keep his finances under wraps. Do you believe it should be a legal requirement for all presidential candidates to fully disclose their financial situation, so voters know if there’s anything that could influence that individual to take a policy position when they’re in office?

Lessig: Yeah, of course. I think it’s critical that they be fully transparent about their own personal interests. Obviously, this president is incredibly corrupt in the relationships that he’s developed with his power as president and his personal wealth and personal financial incentives. The most grotesque example that shows the level of corruption that has risen up in this administration is the FBI building.

If you’ve been to Washington DC, it’s on a beautiful stretch of land near the mall. The FBI has requested to move its headquarters to Virginia because it’s very expensive to have employees having to go down to the centre of DC to do their work. They could have a much bigger space in Virginia that would be cheaper to run and for employees to work there. But across the street from the current FBI building is Donald Trump’s hotel. So, when the FBI was considering its move, the White House reached out to veto the move. Why? Because it would impact Donald Trump’s revenue at his hotel. That level of self-dealing is just really unprecedented in the history of American politics.

Even in the Harding administration, which had a lot of corruption by high level officials, nobody really thought Warren Harding himself was trying to benefit through the corruption. This is direct pure corruption to benefit President Trump financially. When I began doing my work about corruption, I was trying to help people understand that there was then a kind of corruption and the way that Donald Trump was, at that time, engaging in a more indirect structural institutional corruption. Trump has kind of made all of that seem quaint because he is now as openly corrupt as you can imagine a president to be

Hardy: Your work on tackling campaign finance reform was done at the time through the crowdfunded Mayday PAC, which sought to elect candidates to Congress who would pass campaign finance reform. When looking back on that now, do you feel those efforts built the groundwork for where we are now, with people seeing campaign finance reform as a crucial political issue that needs to be addressed?

Lessig: I wouldn’t claim that PAC is responsible for the current groundswell of support. I actually think that we made an important strategic mistake in that PAC that I regret we made. When I originally proposed the idea of that PAC, the idea was to run, in 2016, a campaign to elect a Congress that would pass fundamental reform. The idea was to elect 50 members to Congress from both the Republican and Democratic Parties, who would form a kind of caucus that would control Congress because it would be large enough to deny either side control of Congress. And, it would basically say: ‘We’re not going to do anything else until we pass fundamental reform.’.

My original idea was we could fund that PAC by getting 50 billionaires to commit up to $20 million each to make it possible to elect those 50 members. What I was convinced to do by, you know, the so-called experts in politics was to run a kind of test run of it in 2014 to sort of elect 8 to 10 members of Congress under the same idea. So, that was a mistake because I think that if we had done it in 2016, focused on the big idea of a billion dollar super PAC to make Congress no longer corrupt, it would have captured the imagination of many, many people and help them see what changes could actually happen because it was plausible that there would be a real change. But, when we ran it as a pilot project of just 8 to 10, I think most people could look at it and say: ‘I fully support the idea of reforming corruption in Congress, but you electing 8 to 10 members of Congress is not going to do that. It’s not going to change anything. So, why should I be excited about that project, or try to do anything to support that project?’.

I think we were self-defeating by limiting our aspiration and I wish that we had, instead, held back for two more years and done, in 2016, what we had tried to do in 2014. Because, I think, it would have helped rally Clinton’s campaign as the nominee to be much more supportive of reform and resist the ultimate power that Trump had making it sound like she was the corrupt one and he was the virtuous one.

Hardy: One area that you haven’t called for changes to, but others have, is the Supreme Court. You clerked for Justice Antonin Scalia on the US Supreme Court. What do you make of the argument proposed by some that, to counter how the Republican Party has turned the Supreme Court conservative, the next Democratic president should pack the court with liberal justices?

Lessig: I don’t have any opposition to the idea of appointing liberal justices to the United States Supreme Court. I hope that happens in the next administration because I think that’s what needs to happen. I do oppose the idea of packing the court. That traditionally means expanding the number of seats on the court solely for the purpose of adding new justices according to your politics to balance out the justices on the other side.

The reason I resist that is not because I think the current balance is appropriate. What Mitch McConnell did in blocking Merrick Garland’s nomination was wrong and the Republicans should pay dearly for that offense. We should find every possible political response to that, including removing Mitch McConnell from the United States Senate. I’m all for that, but I don’t want to further politicize the United States Supreme Court. I think that would be a terrible thing, so I am more interested in finding a strategy for responding to the political threats politically than making the Supreme Court even more political than it already is.

Hardy: Do you think there should be some sort of rule in place that ensures the Supreme court is permanently balanced between political persuasions?

Lessig: I would not make that change the priority. I think it’s just a mistake to try to frame the Supreme Court in political terms like that. Most of the cases the court decides are not political cases and I think putting that lens on it undermines the integrity of the institution. I think we should say to the justices on the institution, whatever your politics were, that’s in the past. You should now think of yourself as justices and do your job according to what your concept of justice is. I would think more about changes that would reinforce that idea. Some of those changes could be things like the German system for its constitutional court, which is to have limited terms.

We could do that right now by just moving them from the Supreme Court to other courts. You get elevated to the Supreme Court and serve there for 15 years and then you move to another lower court or you retire. It’s up to you. We could do that right now without any constitutional change. If we did that so that every administration would know that it would get one or two appointments to the Supreme Court, we could radically lower the political cost of any particular appointments. Right now, the next appointee is going to radically cement the direction of the court one way or the other. I think that vulnerability and that importance to any particular nominee is a function of the relatively small size of the court and the fact that appointments are so rare. We can fix both. We could say we’re going to grow the court, not in a packing way. We won’t say we’ll add five democratic justices, but we might increase the courts to 13 over a number of years, a number of administrations. That dynamic, and I think would reduce the political character of the court substantially.

Hardy: You’ve discussed a number of reforms you’d seek to make to the US system of government. However, these are big sweeping changes. Do you think that cable news and social media, this desire for people to get instant information and results, makes it harder to get politicians on board with these larger projects?

Lessig: I actually, increasingly, think that the architecture of media right now is the single most important blockage to the functioning of democracy. It’s not the architecture in a technical sense. It’s not the fact that there’s internet or cable TV. It’s more the business model of those platforms of media that has created the huge blockage for democracy. What’s so striking about the business model is that cable TV and the internet profits the more they leverage the politics of hate and the more they advance the misunderstanding between different parts of our political environment. So, the most striking thing about the Trump administration is to see the way in which attitudes towards Donald Trump have been absolutely impervious to whatever happens.

Whether it’s the impeachment or the debacle over this pandemic, it doesn’t matter. Republicans have never changed their view about Donald Trump and the reason for that is Roger Ailes and his innovation with Fox News to create a news channel that would reinforce the President’s base. Roger Ailes worked for Richard Nixon. He was the media man, the television man for Richard Nixon, and there’s a famous exchange where Richard Nixon says: ‘You know those Chinese and those Soviets have their own media. I need a Pravda. Roger, how could I get a Pravda?’ That’s what Roger Ailes did. He gave conservative presidents Pravda.

Fox News constantly bends the truth to reinforce the attitudes of Trump’s base. What that means is the base never has a reason to question what the president does. We can’t live in a democracy where people live in these different epistemic universes. It just can’t function. The presupposition of democracy is that we all understand the same story and then express our views about it. I have a liberal view and you might have a conservative view. That’s fine, but at least we have to understand the same facts and we don’t right now. Not because there’s an internet, but because of the business model that sits on top of the internet that is driven by advertising and the dependencies that creates.

Hardy: When you’ve got those major media organizations and also social media sites that profit from sensationalized news, not necessarily factual news, how can you truly deal with that situation? Because, in the US, you obviously have the First Amendment right, so you can’t currently legislate against those individuals.

Lessig: We have a lot of experiments to conduct and not all of them can happen in America. So, for example, I think we should have a very comprehensive experiment about shutting down advertising on social media during political campaigns. It’s unclear whether Donald Trump was elected by Facebook. I think it’s pretty clear that Brexit happened because of social media. I think the evidence about the distortion that was affected through that campaign, especially in the last week, is pretty compelling.

That led people to misunderstand what the issue was in a way that led to Brexit being adopted. I think that if we could just turn off the tools of strategic manipulation, at least by non-candidates during that last period in a campaign, and see what happens to social media, see whether it’s poisonous in the same way, that would be enormous progress. I think that’s the first thing we should try. But, we can’t do that in the United States because the First Amendment would prohibit that kind of regulation, so I think we have to find other countries to run that kind of experiment and see what we can learn from it.

Hardy: Finally, what would be your closing message to convince politicians and the public at large to join your call for these changes and that these proposals wouldn’t just fix the political system in America, they would create a fairer and more democratic country for them to live in?

Lessig: We have a saying in the United States: ‘The canary in the coal mine.’. The idea is miners used to take canaries down into the coal mines and when the canaries died that meant there was gas in the air and the miners got out as quickly as they could. America’s democracy is the canary in the coal mine because all of the structural features that have destroyed our democracy are more advanced in America than they are anywhere else. Every country is moving towards media like America, but they’re slower. They’re less advanced in that transition and I don’t mean advanced in a good way. I mean advanced in a bad way. So, I think that everybody who cares about democracy should look at what’s going wrong in America and think: ‘Are we replicating the same problem here?’

So, Britain is a perfect example. This mindless factionalism about media that weakens the BBC and weakens institutions of integrity in the media. It’s just making Britain more and more like America and, obviously, I love my country and I’m deeply committed to my country but I love my country and I’m deeply committed to it enough to say: ‘We have really screwed this up.’. We have really built exactly the wrong set of institutions to support self-government and other countries should not be following us. Other countries should be learning the mistakes we make and make different policy choices.

That’s the critical fact that I think people need to take from America. America is an important lesson for other democracies that don’t want to go down the path that we’ve gone down.