On the Record: An Interview with Lawrence Lessig

On the Record: Your background is in cyberlaw, intellectual property, net neutrality—in many senses the regulation of the digital world. What brought you to the issue of campaign finance reform and Congressional corruption?

Lawrence Lessig: It wasn’t rocket science—it was a recognition that we weren’t going to make progress on sensible policies in those areas until we made progress addressing underlying corruption. And it wasn’t just esoteric issues like copyright or even Internet regulation. It was in the most important areas of policy as well—so we will not have sensible climate change legislation. Period. Until we address this fundamental corruption. We want to have health care policy that isn’t primarily driven by how to buy off the most powerful interests. So you pick your issue and we’re not going to have sane policy until we address this corruption.

OTR: What does it mean to say that Congress is corrupt?

LL: It doesn’t mean that Congress is taking bribes. Indeed, I think as my colleague Dennis [F.] Thompson puts it, this is the cleanest Congress in the history of Congress in that sense. But it means that they’ve allowed themselves to become dependent on an influence which is inconsistent with the intended dependence our Congress was supposed to have. So if the Framers conceived of a Congress depended upon the people alone, we’ve built a Congress dependent upon the funders of campaigns as well as upon the people. So it’s a competing dependency, and it’s also a conflicting dependency, because the funders are not the people, they don’t represent the people, they’re not in any sense representative. So that’s a corruption of the intended dependence, and in that sense it’s a corruption.

OTR: Is this merely a matter of campaign finance reform, or are we talking about corruption in some broader sense?

LL: Well, in the sense that I’m talking about corruption, if you change the way you funded campaigns—any of a range of ways to change the way we fund campaigns—would remove this type of conflicting dependency. And would therefore eliminate the kind of corruption I’m talking about. Now if you eliminate the kind of corruption I’m talking about, there will still be Randy Duke Cunninghams or William Jeffersons in the system, so there still will be people who commit bribery or other, more traditional forms of corruption, but I actually think our system can survive that kind of corruption quite well. The corruption we can’t survive is the in-plain-sight corruption that is the nature of our Congress right now.

OTR: Given that it’s in plain sight, do you feel like most people understand the nature or the gravity of the problems you’re describing?

LL: People certainly understand the influence, the way the influence works. A lot of time, there’s an elephant-in-the-room dynamic, where it’s so obvious you don’t want to even reckon it or think about it or think about the way in which it matters, because what are you going to do? You can’t get rid of it, it can’t fit through the door. So you just have to live life assuming it. So a lot of the work I try to do is just to get people to recognize how there are critical problems they don’t deny are critical problems, they require our government to do something that our government will not do, and therefore until we address the elephant in the room, and that kind of forces people to think, “okay how are we going to deal with it and what are we going to do?”

OTR: Professor Marshall Ganz at the Harvard Kennedy School characterizes the challenges that movements or campaigns face as educational, motivational, and strategic challenges. Which would you say is the biggest obstacle to meaningful anti-corruption reform?

LL: I think it’s motivational—not because people don’t recognize its importance, but more because people don’t see a solution. I get how it doesn’t seem possible in two different senses—one is people could miss a conception of what would make the system work, so people don’t believe there’s actually a solution; the second is, they could believe there’s no way to actually bring about the solution. And those are equally debilitating sources of skepticism and we have to address both, but if we address both you can bring people to the position where they say, “hmm, actually we could deal with this problem and if we did deal with this problem, we could actually get on to dealing with the actual substantive issues we have to address.”

OTR: Do you feel torn between maintaining the vision and idealism necessary to envision a post-corruption Congress and proposing the kinds of practical, tangible steps it will take to get there?

LL: I’m convinced that we have to get there—there’s no choice of not getting there if we’re going to survive as a functioning democracy. And so I’m very practical about what are the things that have to happen. One of the hardest things is getting people to understand why moderate solutions just can’t work. You know there’s a big, quote, “campaign finance reform movement” that envisions a 20-year struggle that gets us to the place that we finally have enough votes to pass fundamental reform to the system. I think the 20-year struggle is certain to lose. Certain to lose. We’ve got to think about a fight that’s a kind of 3-year fight. We’ve got to figure out how to engineer a 3-year fight because that’s the only thing that could possibly win. And so when people hear that, they say, “oh I just don’t see anything on the horizon.” But we need to build something on the horizon.

OTR: What does that 3-year fight look like? When in that process does the legislature get involved?

LL: Oh so I mean a 3-year fight to produce the legislature that will pass the fundamental reform we’re talking about. So 2017, the first bill introduced in 2017, has got to be and so I think will be, legislation that has co-sponsors enough to pass both houses and be sent to the President.

OTR: Recognizing the political and procedural posture of Congress, it seems infinitely easier to defeat a bill than to pass one. That said, what do you think the anti-corruption movement can learn from the defeat of the Stop Online Piracy Act (SOPA)?

LL: They ought to learn two things—one optimistic and one pessimistic. The one that’s optimistic is how just rallying even 1% of the interested, relevant community is enough to completely overwhelm the Washington machine. So to see the way, basically, almost unanimous Congress flips to be almost unanimous the other way, merely because you get 100,000 telephone calls onto the Hill is really amazing. The pessimistic is we can’t change this by stopping anything, we can only change this by passing something. And so if it’s easy to stop it for us, it’s even easier for those who depend upon the system. And that’s the thing I think is really critical to keep in view. When we get close to winning, there’s an industry there that will fight like hell to save itself, and it happens to be the most effective policy-making industry that we have, the lobbyists, so it’s not going to be an easy fight. But that’s in some senses why it has to be a very fast one.

OTR: How do you structure those three years to build the kind of momentum that can overcome that incredibly powerful lobbying force?

LL: So we’ve been talking about a couple additions to the common strategies that are out there, such as raising money to support the organizations that have been pushing this issue. We’re talking about doing two and a half or three additional things. One thing we’re talking about is a kind of Super PAC to end all Super PACs. So we basically commissioned analysis from a very leading team of political analysts to calculate how much it will cost to win. What is that number, $1 billion? Half a billion dollars? The plan is, once you have that number in credible form, you go around to 50 people and Kickstart that number. And say, “if we get 49 others to give their share, will you give yours?” And that produces a bomb big enough to win.

OTR: How does it win?

LL: Well it wins in part by winning in seats around the country to produce enough reformers in Congress. But it also, you know it’s the nature of our current political system, you only win if you’ve got a President. So this issue has got to be salient in the next presidential election, which is hard because especially on the Democratic side, it’s not clear there’s any candidate who cares about this issue. So the second project we’ve been talking about is the New Hampshire rebellion. One thing that’s interesting about the New Hampshire Constitution is that it explicitly says the people of New Hampshire have an obligation to rebel. And so the idea is we’re bringing people into New Hampshire in these off years to say to New Hampire citizens, “you have an obligation to make this the issue the New Hampshire primary turns on.” And so we’ve got a gaggle of people interested in coming in, from Bill Bradley to Jason Alexander to Jack Abramoff to all sorts of different people who just talk to small groups of people and say, “you can save us if you make the issue about this and stop listening to the issues as they present it, just every time someone speaks you say to them, what would you do about the corruption in Washington?’” Then you can begin to see this at the Presidential level, open up an opportunity for Presidential candidates to say, “well here’s the way I distinguish myself from Hillary Clinton or any of the Republicans.” And so you prime a candidate who could also leverage the Super PAC to end all Super PACs.

OTR: What role do lawyers play in perpetuating Congressional corruption?

LL: Many of the lobbyists in the system are lawyers. I’m not sure it’s our particular responsibility, I think it’s a general citizenship responsibility. But maybe lawyers are more responsible because they’re in the best position to remind the world about why this is so critical and important, and how it ties to our history, but I want to get as many people involved in that role as possible— not just lawyers.

OTR: What’s at stake here?

LL: It’s hard to exaggerate. Because I think people are just not quite aware, not quite woken up to the fact, that we really have produced a structure of incentives that drives both parties to disable the government from its capacity to govern. We Democrats like to feel we’re better in this, but if you look at the pattern of bad behavior, you know the Republicans lead, but when the Democrats are in the same position, they copy precisely.
Really, it was Republicans after Gingrich took over, who took the lead to be the 24/7 fundraising party, and the Democrats were like, “this is outrageous, this is destroying Congress,” but then of course that’s who they became. And the partisanship division, when you look at bad behavior with respect to judges, each new control of Congress is worse than the last, with progression up. It’s not like Democrats are good and Republicans are bad. And so what that means is that government can’t govern. Period. Can’t govern. If this were 1830, maybe that didn’t matter, the country could go on. But there are critical problems we have to govern about—from a tax code that makes some sense to climate change legislation to health care policy that doesn’t bankrupt the country to financial reform that actually reforms the financial system. There’s a whole range of things here that we can’t just not address. We don’t have a system to address them right now. So we’ve got to build that system, and if we don’t we’re going to pay the price of falling behind other countries that are capable of solving this problem.

What’s scary about it, you know, is it’s not the 1990s anymore. It’s not like apparent growth and wealth of the country is going to keep everyone happy. We’re entering a period where there’s going to be a real sense of inequality growing and stagnation is going to be significant and salient to a lot of Americans, and this frustration with the failure of government to govern boils over. So we’ve got to get back to a place where government can actually address issues and do something about it and we won’t until we address this issue, period.

To get involved with Harvard Rootstikers, an organization inspired and started by Professor Lessig to get money out of politics and restore government to the people, please contact harvardrootstrikers[at]gmail.com.