(applause)
- Well done.
Got this on?
Terrific.
Hi everyone.
Welcome to NYU.
And welcome to the Brennan
Center for Justice program.
I'm Victoria Bassetti,
a fellow at the Brennan
Center for Justice,
a non partisan law and policy institute
affiliated with in NYU School of Law.
Anyone who's tuned in to
television in the last few days,
you know we live in very
challenging political times.
I can't remember a time
when the word devastating
has been used quite so much.
Some people would say that
fundamental institutions
of our democracy now
respond to narrow interests
rather than the wants and
needs of our citizens.
The American people are divided,
our political campaigns
are awash in money,
foreign influence.
And the inclusive civic
culture of our nation
that should support
the civil participation
of all American citizens is
being challenged on every front.
So what are the democratic
norms, the legal guardrails,
the laws that are needed
to shore up our democracy?
Tonight, we're really
lucky to have Professor
Lawrence Lessig here to help
us answer these questions.
He is the Roy L. Furman
professor of law and leadership
at Harvard Law School, host
of the podcast, Another Way,
founder of equalcitizens.us or us
and co-founder of Creative Commons.
I could go on and on about
what professor Lessig has done
but it might take up
almost the entire hour
for me to go through everything
that he's accomplished.
He's here to talk tonight
about his new book,
"They don't represent us:
reclaiming our democracy."
in which he calls for significant reforms
including public campaign
financing, funding,
reformed electoral college
and a nationwide ban
on partisan gerrymandering.
So welcome, professor Lessig.
- Thank you for having me.
(applause)
- So the title of your book
has to pretty loaded words.
More than two loaded words
but I wanna start off
asking you about what is
the meaning of two of them.
First of all who are they?
- Yes, so there are two theys.
One they is they the government.
That's the more obvious one.
The one that flows from
the work I've been doing
for the last twelve years
about our own representative democracy.
And in some sense it's a
simpler problem to solve.
At least conceptually.
Not politically but conceptually.
But the second they,
really refers to the they,
as in the they that is said
to represent us, as in us.
So we don't represent us
and that's the second part of the book
which is something new and I think
the most difficult problem
which is to describe the way
in which our media or cultural
environment has evolved
to a place where how we are represented
can't be said properly
to be representing us
and that's devastating, I think,
oh we use that word, there we go,
for the health of democracy
because the belief
that we have in this institution
of democracy in some sense
hangs on us having confidence in us
but when we're rendered in this ridiculous
polarized ignorance way,
it weakens the confidence
that we might have in us.
- [Victoria] So we have met
the enemy and they are us.
- They are us.
I'm a little anxious that that hangs there
because it makes it sound
like I'm against us,
kind of bad to be against us,
at least with a lot of people in the room.
So I'm not saying I'm against us.
What I'm saying is I'm against
the way we are represented.
So one response to this might be to say,
"Get rid of democracy.
"Let's have a bunch of elites."
Or we call them technocrats.
I'm absolutely opposed to that.
I have a deep belief
in the capacity for us
to be represented in a way
which would be edifying
and normatively powerful and inspiring
but we just don't do it.
- I think one of the interesting
things about the book
is that that book that
discusses the they as us
and understanding and kind
of diagnoses and goes through
the way our civic culture
and our media culture today
has altered or changed
the notion of they and us
and I think maybe it would
be really helpful for people
to hear a little bit
more about what you think
about how our media landscape
and our civic landscape
has changed to alter
that sort of confidence
that we once had as a civic we.
- Yeah, I mean, so what's
striking about where we are
is that we are colored by a
weird period in human history.
A period that Marcus Pryor of
Princeton would refer to as
broadcast democracy.
So there's a period of
1950 to 1985, in America
when we understand the
world through a technology
of broadcast television.
There's a small number of channels.
It's in some sense irresistible.
We have to turn the TV on.
Every day at the same time there's news.
The news is generally kind
of right down the middle.
Now I don't wanna praise
what the news says.
I don't wanna say it's
unbiased or it's complete
or it's critical in the right ways.
It's none of those things.
But it is a common story
that we understand.
And what Marcus Pryor's work demonstrates
is the way in which it
radically changes politics.
Because as everybody begins
to understand essentially
the same thing, more people
feel like they know something
and so more people get engaged in politics
and the percentage of
people all across the range
who are actually going
on and voting is as high
as it's been at least since
we stopped buying votes
in the 19th century.
But that period is also a
period when we begin to learn
how to read the people.
Polling isn't born, really, until 1935
in a really substantial way
and so there's this coincidence
of at the same time that we begin to learn
how to read, we the people, we the people
have something interesting to say
because we are actually
informed and understand
and you can map the evolution
of really important issues
like civil rights or the
war in Vietnam or Nixon
or the environments as being
driven really by this exposure,
a common exposure to this
fundamental set of facts.
Now, this broadcast democracy
period is very different
from the period before, let's say,
just pick the 19th century.
Because in the 19th century
people get access to the news
through newspapers.
The newspapers are
partisan and fragmented.
So the public is constructed
through this fragmented
partisan source.
But the difference between that period
and the broadcast democracy period is that
you couldn't see the public back then.
The public's not legible.
The public expresses itself in voting
and we elect representatives
but public policy finds
its expression through
the elected representatives
through this elite
not through some tapping
into ordinary people.
Okay, so shift to the present.
In one sense we've returned
to the 19th century.
Because once again our media
is fragmented and partisan.
It's a tool to rally people
to one side or another.
But the difference with the 19th century,
is that we can now see us.
We're now visible.
We get called on the phone
and we're asked questions.
We give our views whether
we know anything and or not,
what do we think of NAFTA,
should there be thorium reactors.
We give our views and that in some sense
is said to speak for the
people and it feels natural
to say that it speaks for the people
because in the caste democracy period,
we weren't so embarrassing
when we would say these things
about those issues that we
happened to be pulled about.
At least the ones that were
related to national issues.
And so the we that we
now construct and see,
is very different from the
we that was constructed
during this period of broadcast democracy
and I fear that the
incompleteness or the partisan
or the polarized worlds that we now are,
are very difficult to
inspire us as we think about
whom the people have become.
- And we were talking
before we came up here
about the impeachment hearings
which we've been watching
or listening to over the
course of the last two weeks
and I think I said to you, having watched
many of these witnesses over
the course of the last 10 days
or seven hearings, I was
so consistently struck
by the sincerity, the intelligence,
what struck me as being the the honesty of
all of these witnesses
and I couldn't imagine
that someone couldn't see the
same thing and yet they don't.
- Right.
- And how do we come back
to the era or the time
when we can all see these
hearings and come to a consensus
or come to a similar conclusion?
Are we hopelessly fractured?
- We are never going back to that period.
It's never gonna happen.
And what we have to ask is
how do we run a democracy
recognizing we're never
gonna be in the 1970s again.
Now, for many reasons,
that's a great thing.
I mean, when you turn
to the culture channel,
what we've evolved is
extraordinary, incredible.
The diversity, the reach, the creativity,
it's unimaginable compared to the 1970.
So on that dimension,
it's a wonderful time.
It's a very Dickensian moment, right?
It's the best of times
and the worst of times.
So on that channel,
it's the best of times.
When you turn to the democracy channel,
it's the worst of times.
And that's because I think
in some sense we've developed
the instincts about how to run a democracy
from the technologies of the broadcast era
and we haven't yet updated or
figured out how to update it.
It's a profound consequence.
I mean, the impeachment's
a great historical example
because we've got three
relevant impeachments
we could talk about.
Think about Johnson, who's
impeached at the time
when media is fragmented and polarized
but the public is invisible.
So what we know is how the elite responds.
They of course understand all the facts
and there's a story about how
they come to their conclusion
of within one vote
impeaching that president.
Brenda Wineapple's fantastic
book unpacks that story
in a way that makes understandable
how they come to that
without even have to assume
that they were bribed
but they could have been bribed.
So who knows.
But the point is, it's a
story of a public watching
at a distance and then
manifesting their view
six months later in an election.
Nixon is impeached at the
height of broadcast democracy.
And the striking thing about Nixon is,
the polling that looks at
Republicans and Democrats,
of course find Republicans loving Nixon
and Democrats hating Nixon.
So 83% of Republicans approved Nixon.
Kind of the same as Trump
and 50 some Democrats
approve of Nixon, higher than Trump.
But if you'd look at the
way those numbers move,
they move almost with perfect correlation
and so at the moment six
months before Nixon resigns,
his support begins to
collapse but it collapses
in the same way for both sides.
And that's because everybody's
watching the same story.
And of course you react
differently depending
on whether you're on the
right or on your left
but you can't help but
react to that story.
Today, if you look at these
polls about support for Trump
or support among Republicans or Democrats,
there's no correlation.
There's a complete flat line.
It's just unconnected.
And the reality,
Barack Obama about two
months ago said that
if you watch Fox News, you
live in a different reality
from if you read the New York Times.
A different reality.
And the point is that different
reality reinforces itself.
So it is true, you
can't imagine how people
can look at those
witnesses and see anything
other than integrity.
And that's the problem.
That you can't imagine it.
And I can't either.
I really feel so far away
because I do live in this world
and they live in that world
and I don't really wanna
live in their world.
I don't wanna go back to,
I don't wanna live in a
sort of Fox News reality
but it's a challenge for a democracy
when we understand that gap exists.
The president was completely
wrong to retweet the pastor,
the southern pastor who said
there would be a civil war
if the president was impeached.
He was completely wrong to do that
but there's something to that comparison.
Because the civil war in
some sense is another moment
where we lived in these
totally different cultural environments.
I mean, the law forbade
sending material to the South
about, abolitionist material to the south,
so we had these bubbles of understanding
and they couldn't understand us,
we couldn't understand them.
I'm presuming I'm from the north here.
My mom actually was from the
south so I don't know who I am
but the point is I'm gonna
take the north side here.
We didn't understand them,
they didn't understand us
and that was pretty tragic,
the consequences of that
but I feel like in some
sense this is the nature
of our problem now.
But different from them, we
present our craziness now
every single day when the polling reveal
who we are and what we think.
- So I wanna read a passage from the book
that I think is relevant
to the conversation
we were just having.
So you begin, "The question
now is how to build
"a democracy that does
not assume that we all,
"at any particular time know anything
"and that accepts that what's told to us,
"is told to us with a partisan spin.
"how do we govern ourselves
when we in fact know squat
"about even the most important issues?
"How do we run a democracy,
"when the people are inherently ignorant
"and when we, the
ignorant, live in tribes?
"There is an answer to that question."
I think maybe it starts in Mongolia?
- Yes, it starts in Mongolia, right.
So I had this bizarre
experience in May of 2017
of being in Mongolia.
Because Mongolia passed a
law and the law said that
before the Mongolian Parliament
is allowed to consider
an amendment to its Constitution,
it has to conduct something,
a deliberative poll.
So what that means is they have to select
a random selection,
random representative
selection of Mongolians
and bring them to Ulaanbaatar
and they occupy the parliament
for four days as they
deliberate about this poll.
So, the first morning I'm
there and this is huge
parliament building and there's stairs
and there are 700 Mongolians
and there's Genghis Khan
and this huge statue behind.
And you look at this mix and it is
a perfect representation of Mongolia.
It's slightly more women than
men not a bad way to be wrong
but the point is it's rich
and poor it's urban-rural,
it's professional/blue-collar
in the way we would think about it.
Half those people had
been on a bus for two days
to get to Ulaanbaatar.
They had been drafted, essentially.
And Mongolia is not a place
where people kind of feel free
to say no when the government
says show up, so they show up.
And so then I'm listening
to this deliberation
about this constitutional question
which was a complicated
constitutional question
and I think I'm a law
professor from Harvard
that these people will never
be able to understand this.
It's too complicated for them
but over the course of the
time that I listened to them,
I was astonished with
the depth and sincerity
and earnestness with which
they struggled with this.
And in the end they came to an
incredibly sensible solution,
conclusion about it and this convinced me
in a visceral sense of something
that I'd known of forever
and I believed in forever
but never believed in
as much as then because what
I think this was practicing,
you know Jim Fishkin is
the one who developed
the deliberative polls and
he runs them everywhere
for the last 30 years and
uniformly they have this kind of
flavor to them but I've
never been there to see it.
I think what it demonstrated was that,
in fact if you construct
us in a certain way
or maybe it's not us,
maybe it's just Mongolians,
but let's assume it's general.
If you construct us in the right way
and you give us information
and you give us a chance
to reflect and think about
it and it is representative.
So it's not like all of
the partisans on one side
and all the partisans over the other.
I mean there will be
partisans but it turns out
those are a relatively
small slice of any public.
And they have to confront
each other in small groups
and in big groups, we can
be so much more than we are
when we live in our tiny little
universes with our phones
and then we get called or
summoned to answer a question
and then we give a result
as a process of that.
So the sense in which
my it begins in Mongolia
is to say there's a way
we can be represented
that we should be proud of.
We should we should celebrate.
And then once you realize that,
think about the other public officers
in our type of Republic.
The Republicans smaller
Republican tradition says,
being a citizen is to be a public officer.
Okay, well, the thing
about other public officers
is none of them have to answer quizzes.
When the president speaks, I
mean, before this president
maybe it's a better point
but you'll get the point
of the generic idea.
The president speaks, he
doesn't just blather, right?
He doesn't just...
(laughter)
I mean this, again, I'm not
talking about the current.
See, when we understand
the president speaking,
we understand the president speaks.
And when he, so far just
he, when he says something,
what he's saying is the
product of a whole bunch
of deliberation by a bunch
of people who've given him
the information on both
sides and the political issue
on both sides and he takes a stand
and that's to be respected
as the stand of the president
whether you like it or not.
When the Supreme Court says something,
if you walked up to Elena
Kagan and you quizzed her
about Admiralty law, she
would be perfectly within
her rights to say, "Look,
if you wanna get a question
"about Admiralty law answered,
"then you do is you get a
case and you write some briefs
"and you give us a chance
to hear an argument
"and then we'll deliberate
and write an opinion."
And that's our view of Admiralty law.
Or even a jury, right?
You can't walk into a jury
midway through its deliberations
and take a poll and say
that's the view of the jury.
The jury is supposed to be a
process for coming to a result
and at the end of that
process, then it gets to speak.
Every one of these aspects of
our public life get a process.
And most of them gets staff except us.
We get quizzed.
We're supposed to do our own work.
We're supposed to have done
the deliberation with people
we don't agree with and and
come to an understanding
that's reflective and
informed and I feel this
kind of sense of outrage.
Why do we allow this
insult to be perpetrated
because why are we accepting
us being represented
in the worst possible way.
Yet that's what we do.
And so part of what I'm
trying to do is just reorient
our sense of what can we expect
from the pop-quiz public.
Because it's just as good
as what you would expect
from the pop quiz Supreme Court
justice or the pop quiz jury
or the pop quiz president
which we seem to have.
But the point is this is
a difference that is about
conceiving of us differently
as much as it is about
building institutions
or building new devices
called deliberative polls.
- And there's so much rich in this book
that we really don't have
the time to go into all of it
but I wanna ask you about
what you call slow democracy.
What do you mean by that?
- Well, so I'm sure
many people here know of
a slow food movement.
So slow food movement says,
given the nature of our
bodies and the way we work,
if you wanna be healthy in what you eat,
you should just cook your
food and eat it slowly
with friends talking over
a table for a long time.
And if you do that if you cook your food
and you eat with friends and you eat over
a long period of time, the
consequence of that will be
healthy nutrition for you.
Because you can't screw up food you cook
as much as processed food is screwed up.
It's hard to make as much poison yourself
as the processed food
industry is able to do.
They have magic and you don't.
So it'll turn out on balance.
It'll be healthy and that's just nature.
It's a feature of our
body and the way it is.
What I'm arguing in this
part of the book is that
we need a slow democracy
movement where we recognize that
we're good at thinking
about democratic ideas
in certain contexts and bad in others.
So, I've become a enormous
fan of podcasting, right?
So podcasting, I was on
the Joe Rogan podcast.
Two and a half hours into the podcast,
I looked up and realized
it's two and a half hours
that we've been talking and
the data about podcasting
is astonishing that people listen
for an incredible period of time.
Like they'll listen for
an hour or two hours.
His numbers say that people listen,
80% listen all the way to the end
of his two and a half hour long podcast.
And when you're listening
to a conversation,
it's just the nature of us.
We're good at beginning
to reflect as we listen
to a conversation over
time and we hear both sides
and we begin to feel pulled
in one way or another
and in that context we do the
process of reflecting well
as opposed to Twitter or
our Facebook feed which is,
our Facebook feed is like a spiked drink.
It is architected to render us crazy.
Because the crazier it can
make you, the more you reveal.
The more you reveal,
the better the data
they have is about you.
The better the data they have about you,
the better the ads are
that they can sell, right?
I mean it's kind of
astonishing to recognize
but it is the business
model of advertising
layered on top of social
media that renders
social media so poisonous.
I mean, I don't think we
have good data to know
what social media without
advertising would look like.
I mean it might be harmful,
it might be innocuous.
I don't know.
But we know that with
advertising this platform
becomes tweaked to drive us into behaviors
that we otherwise wouldn't wanna be doing
because it helps sell ads.
And sometimes you think about this,
I remember having a
conversation with somebody
and I was describing this.
He said, "Okay, wait a minute.
"If you told me that
you destroyed democracy
"to end climate change,
I wouldn't before that
"but I would kind of get the trade off."
Or we're gonna destroy democracy
so that we can end world hunger.
Okay, I mean that would be terrible
but at least I'd get why you...
But the idea you're destroying democracy
to make Mark Zuckerberg richer,
this is just not comprehensible
yet this is in a certain
sense what we have done
without even intending it.
I don't think there's any evil force,
the Google boys or Mark
Zuckerberg trying to say,
"Oh here's how we can
destroy America's democracy."
It's just, "Wow, here is a business model
"that's gonna make us
enormously successful.
"enormously rich."
And "Oops, turns out it has
this really horrible consequence
"at least in context where we
need people to be something
"other than like little
rats that we've wired up
"and turned into crazy people."
- So we started off this
conversation with the hard part.
And now I wanna turn to what--
- To the easy part.
- What you described in
an earlier interview,
the easy part which is reforming
our campaign finance system,
ending gerrymandering,
implementing grand choice voting,
rethinking the Senate,
which you call a conceptual mess,
redoing the way we elect a president
and maybe a little bit of alteration about
how we treat voters in our law.
So that's the easy stuff.
So that's what we're gonna turn to now.
The easy stuff. (laughter)
This goes to the heart of one
of those second loaded terms
in the title of your book, represent.
And why don't you tell us
quickly about the the proposition
in your book about they don't represent us
and then, we don't have time
to go through all of the things
but there are a few that I wanna call out
that are very Brennan cindery.
- So you'll often be in
an argument with people
about our "democracy" and
they'll scream at you,
"We don't have a democracy,
we have a republic."
Okay, so the first thing
is, yes that's true
but by a republic they meant
a representative democracy.
So if a Ford truck is a truck
then we have a democracy, right?
Okay, but let's take that word seriously.
A representative democracy.
It's kind of built into the title.
It's supposed to be representative, right?
That's the idea and the
first part of the book
is trying to describe the dimensions
of our institutions of democracy
that are inherently unrepresentative.
That have evolved to be
inherently unrepresentative.
So for example the
simplest and most obvious,
states are allowed to
administer their voting systems
in a way that makes it
harder for some group to vote
than for others.
That typically expresses
itself in a way that is racial.
So Georgia.
It's hard to look at
Georgia and not think,
these are white people
trying to keep black people from voting.
The more fundamental way of
understanding it is partisan.
It's the insiders, the Republicans,
who are trying to make it
harder for the Democrats to vote
and it turns out the tweaks to
make it harder for Democrats
to vote are tweaks that impact
African American Democrats
more directly or obviously than others.
So there's something crazy
about the idea that we allow
a system of voting to be
administered so that some people
have more freedom to vote
than others do but we do
and the consequence of that
is an unrepresentativeness
or an inequality in the ability to vote.
Or take gerrymandering.
So gerrymandering of
course, politicians picking
their voters rather than voters
picking their politicians.
The way gerrymandering of Congress works
is that states draw districts
for the purpose of maximizing "safe seats"
So probably 85% of seats are safe seats.
What a safe seat is, is a seat where
we know the party that will win.
So if you're in a safe
seat Democratic district,
you know a Republican
is not gonna beat you
but you also know a
Democrat could beat you.
You could be beaten in the primary.
So if you're in a safe
seat Democratic district,
you're concerned about an
even more progressive Democrat
who might beat you in a primary
or if you're in a safe seat
Republican district you're concerned
about an even more right-wing Republican
who could defeat you.
Because the thing about primaries,
is that it's the extremes
who vote in the primaries.
Okay, what that means is
in 85% of the districts,
representatives are
constantly focused to their flank.
Either to the right if
they're a Republican
or a left if they're a Democrat.
Which means that those views get amplified
inside of the political
system so that the views
of people in the middle or
the views of a Republican
in a Democratic district views
of Democrat in a Republican
district gets suppressed.
In that sense, there's that inequality.
Or think about the electoral college.
We have the impression that
the United States of America
selects our president.
It actually turns out that
we've delegated that choice
to a country called swing state America.
Swing state America is about 14 states.
It's not quite contiguous.
There are a couple jumps
but they're pretty,
you can draw a line through most of them.
Swing Sate America just happens to be
the most purple states in America.
But because all but two states
allocate their electors proportionally,
I mean a winner-take-all,
the strategy for running for president,
is to only spend time in
swing states in America.
So in 2016, 99% of campaign
spending was in 14 states.
Okay, now if Swing State
America represented America,
we could say, "Okay, that's
a good way to economize.
"They can do the work
and we can just relax
"and not have to watch ads on television
"for presidential candidates."
But of course Swing State America
does not represent America.
It is older, it is wider, its industry's
kind of late 19th century industry.
There are seven and a half
times the number of people
in America working in
solar energy as mine coal
but you don't hear about solar energy
in presidential elections.
Because those people live
in Texas and in California,
non-swing states.
You hear about coal
mining because coal mining
is within the swing state belt.
So the point is this delegation
to a country to select
our president that doesn't
represent us, makes no sense.
Yet we've done that.
And if we were gonna
delegate to a country,
I'd say why not to Sweden?
That would be a better
country to delegate to.
I'd be more happy about...
But the point is,
there's no representative
justification for that.
And then finally the most obvious.
The one that I've spent
10 of the last 12 years
of my life obsessing about.
The way we fund campaigns.
We have a system where candidates
for Congress spend 30-70%
of their time, 30-70% of
their time raising money
to get back to Congress or get
their party back into power.
But they raise that money
not by randomly calling
the average American, right?
They raise that money
by calling no more than
about 150,000 Americans who are the people
who give money to these
kinds of campaigns.
But those 150,000 Americans,
this tiny tiny fraction
of the 1% in no sense represent us
but they have enormous power
inside of this political system.
So when you add all of these dimensions
of unrepresentativeness
together, in general,
this is the simple points,
they don't represent us
because they're representing
all of these fractionally
powerful entities much more than
the others in each of these dimensions.
But one interesting
conclusion from that is,
I don't know how to
aggregate it all together
but one thing that follows
is it's not actually
that it's the plutocracy that's winning
in each of those fights.
I mean, in the money to
run elections dimension,
certainly it's rich
people who are winning.
No doubt.
But in partisan gerrymandering,
I mean it's the extremes
doesn't necessarily correlate
directly with wealth.
In Republican southern states
that are making it harder
for Democrats to vote in those states,
that's not necessarily wealth.
These are not rich places.
The electoral college swing states
are not richer on average.
There's no wealth dimension there.
So what's interesting is
this is not so much a system
designed to make the plutocrats win.
I actually think it might be
better if it were a system
designed to make the plutocrats win
because at least there would be a plan.
It would be a comprehensive
sort of coherence plan.
Instead our system is
more like vultures feeding
on a dead water buffalo.
Nobody wins.
I mean nobody wins systematically
and so the consequence
together is not that we're being steered
in a direction we don't want,
it's that we're not being steered.
It is our government cannot function.
This broken institution,
this failed branch within our
constitution, the Congress,
essentially cannot deal with
any issue in a sensible way
because of this endemic,
this systemic system of
unrepresentativeness.
- So as I said, the
book is rich with ideas,
many of them legislative,
but I want to because
we're at a law school.
I think I'd like for the moment to focus
maybe on a little bit of litigation.
And the first one I wanna talk
about is, I think teeing off
of a something that you write in your book
which is that lawyers and
judges just can't stop looking
for corruption in all the wrong places.
And we've had a lot of talk
about quid pro quos recently
but you're not so
interested in quid pro quo.
You're interested in a
different version or vision
or understanding of corruption
and you're kind of maybe
putting it to the test in Alaska.
So, I'm really curious about it
because it's strategic
litigation undertaken
with a view towards maybe
bringing it to the Supreme Court
which has been really
kind of whittling away
at their vision of or
understanding of corruption
over the course of the last 20 years.
You wanna take it straight
to the Supreme Court.
Tell us more about it.
- Right.
So the Supreme Court has
said Congress or a government
can regulate political speech
if it has a compelling interest.
And the compelling interest
is recognized so far as "corruption."
But by corruption it's
spoken increasingly sharply
about just quid pro quo corruption.
You can think of that as
individual corruption.
So if you're trying to
regulate individual corruption
in some way, then it's okay
to restrict political speech
but nothing beyond that has
earned the justification
from the Supreme Court.
But I think that, not I just me obviously,
but I think there's
another kind of corruption
that is maybe even more important,
especially in a mature
democracy like ours,
which is not individual corruption
but institutional corruption.
Not the acts of individuals
breaking the rules
but institutions that become unconnected
to an institutional purpose.
So think about our Congress.
Madison said we would have a
Congress that would be filled
with people who would be
"dependent on the people alone."
Okay, the people alone.
And he envisioned that dependency
to express itself through
regular, every-two-year
elections in districts
that were to be small so that way
we would feel that dependency
on the people alone.
But we know we've evolved a
system for funding campaigns
that creates a different dependence.
A dependence on these
funders and that dependence
on the funders is obviously
not a dependence on the people
because the funders aren't the people.
So this is a corruption
of the intended dependence
that our framers had for Congress.
So it's a corruption of the institution
even if nobody in Congress
engages in quid pro quo bribery.
Okay.
This is something Zephyr Teachout,
in her really wonderful
book, "Corruption in America"
really makes the argument powerfully
with historical understanding
and I was inspired
by that book and in my
own book "Republic Lost"
to sort of map this as a way of thinking
about the corruption
argument but the key here is
to get somebody who is
motivated to understand
this kind of corruption as
relevant to the question
of corruption under the First Amendment.
And it turns out that this
conception of corruption,
this conception of corruptions
focused on institutions,
is the conception that our
framers were most obsessed with.
The framers of our constitution,
though they talked about bribery,
we've done a study of all the
times they've ever spoken of,
they used the word corruption
or spoke of corruption there,
though they were talking about bribery,
sometimes most of the time,
they were talking about
institutional corruption.
That's the thing they
were most obsessed with.
So from an originalist perspective,
you would say an originalist
has no good reason
to limit Congress's ability
to deal with "corruption"
to this exceptional kind of corruption,
quid pro quo corruption,
when the framers were so deeply
focused on giving Congress
the ability to regulate
institutional corruption.
That was their focus.
Okay, so how do you get
originalist to think about this?
Well it turns out Alaska
has a law that says,
if the Election Commission
does not enforce the law,
citizens can complain.
So we found some citizens in
Alaska who wanted to complain
about the fact that Alaska
had stopped enforcing
their super PAC law.
And we went to Alaska.
They filed their case.
The Alaska Election Commission said,
"Of course we can't
enforce our super PAC law
"because this decision by the
DC Circuit in a case called
"speech now, basically says super PACs
"are constitutionally protected.
"So we can't enforce the law."
And we responded to that in
the district court by saying,
"Look, the DC Circuit's
opinion is not binding on you.
"The only thing that
could be binding on you
"is the United States Supreme Court.
"So count the votes in the
United States Supreme Court."
We have four votes plainly
to say that super PACs
can be regulated.
So the question is how
the others will vote.
We know that there are
originalists on that court.
Indeed right now a very
importantly young originalist,
justice Gorsuch who I think
is a genuine originalist,
he's also a conservative
but a genuine originalist
trying to figure out what
originalist doctrine means.
So we said to the court,
"Let us prove to you the
original understanding
"and then you add up the votes
and you see whether you think
"at least one of those
remaining justices would vote
"with the four to uphold the ability
"to regulate super PACs."
So the courts said, "Fine."
We took Jack Rakove, one of
the great American historians
of that period up to Alaska.
We spent four hours
testifying to the judge,
going through the whole of
the original understanding.
And it took a year but the court
finally gave us an opinion.
Astonished us.
The court agreed with
us that we were right.
It's important to our strategy
that we lose at every level
so we could move it quickly
but it was said it was right
so then we had to persuade the
Election Commission to appeal
that to the Alaska Supreme Court,
and I found out today that they've agreed,
they're gonna appeal it to
the Alaska Supreme Court,
and we hope to lose in the
Alaska Supreme Court quickly.
(laughter)
And then we'll go for search
the United States Supreme Court
and if liberals on the
court are paying attention,
they'll realize that the whole
of our case is going to be
a case focused on the originalists.
We wanna make a good faith
argument to the originalists
that says good faith
originalism should lead you
to leave Congress with
the discretion to regulate
what is properly conceived of
as institutional corruption
and those four can grant cert
and then allow us to go argue
to one or two justices
in the Supreme Court
and I think there's a 10% chance we win.
(laughter)
But the thing about 10% is
it's about 100 times greater
than any other solution
to super PACs succeeding
right now in America.
So this is a bank shot
but it's in good faith
and I think it's right and
I think there's no reason
in the world they should
wanna resist us because,
I mean, this is another example of
can we really understand them,
I clerked for Scalia.
I think I understood Scalia a bit.
I'll tell you a secret about what,
you can't tell anybody this
but the last lunch I had with Scalia,
I had this argument with him.
The lunch started with me saying,
"You've ruined me as a law professor."
And he kind of said, "Why?"
And I said, "Well, when I clerked for you,
"there's all sorts of cases
where there was the originalist
"thing to do and the
conservative thing to do.
"And we always convinced you
to do the originalist thing.
"Your principle thing.
"And so when I left to become
a law professor and whatever
"I'd see a case where it was a conflict
"between the conservative thing
and the originalist thing,
"I'd say, Oh Scalia's gonna
do the originalist thing
"and you let me down every single time."
And then the time that I talked about
was the McCutcheon case which
was the most recent time
they considered the meaning of corruption
and in the course of the lunch,
I laid out the original
understanding of corruption
and you know, he had a lot to
drink over the course of lunch
so I don't really wanna put
a lot of argument on this
but by the end he said, "I
think you might be right.
"I don't know how I
could resist the argument
"that I've got to allow them to regulate
"what you're calling
institutional corruption."
And then he died.
(laughter)
I mean not at that lunch but,
(laughter)
Shortly afterwards.
So I was convinced like if I
could get this originalist,
a really smart convinced
originalist to believe,
to see it's at least plausible,
I was convinced that it's
the right thing to do
and what we hope to do is
to recruit a Randy Barnett
kind of originalist to make the argument
in the Supreme Court.
Because it's not a trick
it's like take them seriously
for their philosophy
and if that's seriously
their philosophy as it reads on this,
it should allow us to do
what all of them must believe
Congress should have the power to do.
Because nobody can look at the system
and say it's a good system
when 10 billionaires
can direct and control exactly
what our Congress does.
- So we're gonna turn to
audience questions shortly.
So if you're considering,
start thinking about
the questions that you might wanna ask
and we'll be taking them at a mic
towards the front of the room over there
but before we do that I wanna
ask you one last question
which is about the case
that you've currently got
before the Supreme Court.
You filed for a writ a few
weeks ago, about a month ago
and maybe we'll know at
the beginning of next year
or possibly in December, unclear,
regarding presidential
electors and their ability
to cast a vote of conscience.
In other words to ignore, if they want,
the the popular vote of the
state in which they are electors
and that's another significant
portion of what you discuss
which is the way our
presidential election system
is, what shall we call
it, unrepresentative.
So why don't you quickly, if
you can, tell us a little bit
about that litigation
and then we'll turn to audience questions.
- So this group Equal
Citizens is deeply focused
on how do we get reform
in the electoral college
but of course in the last
election there were a significant
number of electors who voted
contrary to their pledge
and at that stage I thought
this should not be a question
that's decided in the course of
an actual presidential election.
So after the election we
approached electors in Washington
who had been fined $1,000
because they voted contrary
to their pledge and electors in Colorado,
one of whom was kicked off
and two others who were threatened,
and we said, "Let us
resolve this question."
Now, when I originally
did it I wanted to do it
simply for the purpose
of resolving it outside
of a presidential contest.
Because whatever way you go,
it would be the worst thing
in the world for the Supreme Court,
this would be Bush v Gore
raised to the tenth, right.
It'd be a worst thing in
the world for the court
to have to decide it when they're deciding
who's gonna be chosen.
And if you think of like 2000
where there's just two votes
that separate the winner from the loser,
it's not implausible that an
elector motivated after 2016
could make that shift
and go the other way.
The more I'm into this
case, which I'm now deeply,
I feel like the world's
expert now on this issue,
the more I'm absolutely convinced
there's no way this court
is gonna be able to write an
opinion that says anything
other than,
"Yes, electors are free
to vote their conscience."
And I think that will terrify most people
on the left or the right.
It's not a political issue.
it'll just terrify us.
The idea we have this institution
where if it comes down
to the wire one or two
people flipping their vote,
could change the presidency
is just not acceptable, right?
Or maybe it is.
I mean, we should decide
whether we like it or not
and if we don't like it
then that's motivating
the alternatives that could
actually be alternatives
that we are happy with.
The simplest one is the
national popular vote compact
which would create enough of a buffer
that it would never matter but
we're actually trying to push
for an amendment, we've been
litigating another set of cases
to try to get the court to say as a matter
of equal protection
allocators you should allocate
electors proportionally
not winner-take-all.
But I think the ultimate
solution that in fact
you should be able to get agreement on
is keep the number of electors as they are
but allocate electors proportionally
at the fractional level
and if you did that then
every state would matter.
Just every state would be in play.
It'd be just as much to
get a vote out of Wyoming
as it would be to get a vote out of Texas.
So it would solve this kind of weird
swing state America problem.
It wouldn't be, from my
perspective, the best solution.
Because it's not one person one vote.
You still have more power in Wyoming
than you do in California but
the reality of a constitution
that requires three-quarters
of the states to agree
to an amendment is, I
think, that in some sense
until the revolution, we're
stuck with this inequality.
- So if anyone has any questions,
why don't you think about
coming up and we'll...
You need to come up to the mic
if you wanna ask questions.
Yeah, yeah.
And if I can ask that
you give us your name
and tell us before you ask a question.
- Yes, my name is Hugh Campbell.
I'm a certified public
accountant and in 1912,
Teddy Roosevelt gave a speech called,
"The right of the people to rule"
and he talked about a
lot of political reform.
And one of the reforms that he advocated
was a national referendum in the case of
controversial Supreme Court decisions.
If we had a national referendum on
controversial Supreme Court decisions,
let's say five to fours,
that required a supermajority
of 56% to overturn that
Supreme Court decision,
what are your thoughts?
- So I don't like the idea.
I don't like the idea for all the kind of
information reasons that I described
in the first part of our talk.
So then the question might be,
well what about a deliberative poll.
And then you're forcing me to reveal
a kind of non democratic feeling I have
about legal questions which is, I mean,
I think if you're a lawyer you recognize
some legal questions
actually take some experience
to understand the significance
of those legal questions
or why they get decided
in a particular way.
So I would not be excited about
opening up Court's decisions
to a review either by an
informed and reflective public,
general public or certainly a referendum
that anybody could be voting at.
It's a problem we have
with our court right now.
That it is relatively activist
compared to historically.
And so this issue becomes
more and more pressing,
the more things that it
does but I think it's,
I feel cornered as,
this is my limit,
I think you feel cornered
as a lawyer to say that
I don't think in general,
legal questions like this
can be opened especially when they touch
civil rights like that.
- Early on in your talk,
you characterized Supreme Court decisions
and also pre Trump presidential addresses
as having a deliberative quality
and you omitted Congress.
I'm old enough to remember
the Watergate hearings
which were really the impeachment
inquiry for Richard Nixon
and there it really was
a deliberative process.
There wasn't this phenomenon of one party
attacking the people who testified,
trying to make them look bad
but it was a real inquiry and
deliberative and respectable
and respectful worthy
and yet now it isn't.
And is it your view that the
main things that made Congress
deteriorate to the way it is and has been
in the last decade or so,
was internet plus fracturing
of the news media?
Those two things?
- Imagine being Ben Sasse,
who's a very reflective.
I mean I'm not, like his
politics, what I'm saying,
he's reflective, he's serious.
I think he has an
understanding that is complex
and I can't imagine that he's happy
with the head of his party
but he lives in a place where
his public is happy with
the head of his party.
And that fact is visible to him 24/7.
He gets a memo every single
morning from the party
telling him what polling
numbers look like, right?
And so he's constantly in this position
where he needs to decide
who he's gonna be.
Is he gonna be a representative
of something more than
merely what the polls
say or is he gonna be
the representative of what the polls say.
Ad so this is a backwards
way to get around to saying,
I do think that the problem
I was describing about us,
makes it harder for them to be the people
that you were referring to
when you were talking about
representatives at the height
of broadcast democracy.
So I do think it's harder.
But I still, I omitted Congress
and I didn't mean to omit
Congress in this sense.
I mean, I also think Congress,
they can be partisan but they
also come to understand things
in some sense when they're
not so much in our face
that's reflecting both sides
and exposed to both sides,
at least more than we are.
Now, the other thing I
would tie this to is money.
If you're spending half
your time raising money
and the reality is to raise money,
the best way to raise money
is to vilify the other side.
The more you can spew
hate on the other side,
the more likely you are to
inspire money back to you.
So if you spend half your
time vilifying the other side,
and the other half of your
time on Fox News or MSNBC
vilifying the other side, it's
really hard to turn around
to put your arm around somebody and say,
"Let's work stuff out."
It's just psychologically hard.
So I think these things are connected
but I have real empathy,
maybe, I don't know,
but I understand the pressure.
I wanna say to people stand
up and be responsible here
but I understand the dynamic
that's making it hard.
- I would also add that
Congress as a co-equal branch
of government sort of
unilaterally disarmed itself
and stripped itself of its
expertise and competence
and kind of decision-making capability
over the course of the last 40 years.
When you take a look
at the amount of money
that's spent on staff or
expertise for Congress
as compared to the executive branch
or even the judicial branch.
It's pretty staggering.
- Yeah, I mean look, like I mean,
I think the Dark Lord of
Washington is Mitch McConnell
but the grandfather of the
Dark Lord is Newt Gingrich.
Newt Gingrich broke Congress.
I mean, if there's one person that's been,
I mean he's the second
most important part person
in the history of Congress.
Madison was the first, Newt
Gingrich was the second.
Because Newt Gingrich radically changed
the character of being a Congress person.
He told them, don't bring your family.
You're gonna be working
from Tuesday to Thursday.
The rest of the time,
he originally sold it
as you'll be at home but it turned out
you'll be raising money.
That's what you'll be doing.
He turned them into
these petty fundraisers,
that's what they were doing.
And at the same time he decimated
the institutional
infrastructure of Congress
and substituted it for lobbyists.
So there used to be institutions
where Congress people
could ask questions, like
what is the answer to this.
Now they have to ask lobbyists.
And it's not an accident.
Because if you have to ask lobbyists,
you become dependent on lobbyists.
It's easier to raise
money then from lobbyists.
You've basically outsourced
to the private sector,
a very interested private sector,
the job of running Congress.
And so when you talk to people
who've been in Congress,
for a long time, so Jim
Cooper went to Congress in,
he was elected in 1982.
He spent some years
back but he's gone back.
I mean he will say it's a totally
unrecognizable institution
from what it was.
And that dynamic I think I would
tie it all to Newt Gingrich
and I think the consequence is exactly
this self-destruction.
- Thank you very much Dr. Lessig.
My name is Matt Harder.
I really appreciate the
reforms that you talk about.
I think they're extremely important.
One thing that strikes
me is a major problem
with getting sitting
representatives to support them
is that they've become
expert at a certain game
of gaining power and you're
recommending changing the rules
of the game which would
put them at a disadvantage
just mentioned the fact
that they're already experts
in the former way of doing it.
Do you agree that that's
a major hurdle and if so,
what's a way that we can
actually exert pressure
on sitting representatives
to create these changes?
- Yeah, I mean, so this
kind of felt hopeful,
when we framed this part of
the problem as the easy part
but of course what that was
hiding is that the hard part
about the easy part is
imagining the political will
to bring about that change
because of two things:
one, they like the system.
And number two it seems really
hard for politicians to focus
on changing the system as the thing
that they talk about first, right.
It is an astonishing fact.
I don't know if this is
something people recognize
but there are nine candidates
running for president.
Remaining candidates
running for president,
including three of the top five,
who have made a commitment
that they will bring
fundamental reform as the first thing
they will do as president.
So Pete Buttigieg did this originally.
Said, "The first day I will
bring fundamental reform."
A bunch of groups including
citizens but represent us
and Citizens United have now
gotten them on the record.
This is what they're gonna do.
So in some sense, if they
did that and the Dark Lord
were in Kentucky and they got
Congress to pass something
like HR1 which was what
Nancy Pelosi got past,
the most important reform legislation
since the Voting Rights Act of 1965,
public funding for elections,
ending partisan gerrymandering,
restoration of the Voting Rights Act,
ending the revolving door,
really powerful ethics,
automatic voting registration.
All of that in one bill.
If that president were elected
who had made that commitment
and gets that passed, that
would be an enormous change.
And it's astonishing in
some conceptual sense,
we're just this close to it happening,
because one can at least
imagine this president
is not re-elected and the odds
are then one of these people
will be elected and usually you get to do
the first thing that you promised.
I mean if Mexico had paid for the wall,
we would have a wall along Mexico no doubt
because that would have been
what we give the president.
But the problem is it's so
hard for them to talk about it.
Last night's debate was
the first time the word
public funding was uttered
by a presidential candidate
even though nine of them have
committed to public funding.
But the first time, and God bless him,
Bernie Sanders yelled it out.
"We're gonna have public
funding of campaigns."
Politicians don't like to use those words.
They're scary words for them to use.
They get attacked.
And so the dynamic of getting
this into the political mix
so that people understand this
is what they're voting for
and then the person who
gets elected has the mandate
to make this happen is the
hardest part of the problem.
And I'm not yet convinced
that we've seen that
manifest itself.
I mean Elizabeth Warren's
closing was all about this.
It was like the number
one problem is corruption.
If we don't fix this corruption
we can't do anything else.
This is the this is the kind of gateway
not Biden's gateway
but this is the gateway
to solving our problems.
So she was talking the talk
but it was a kind of an
afterthought after a whole debate
where she was talking about
all the amazing things
that she was gonna get done.
When in a certain sense we all know
you're not gonna get those things done
until you fix this problem.
So there's a really
difficult political problem.
How do we get them to focus enough
to make this change happen
given that all the money
in the world is gonna be
against this change happening.
- Okay, we've only got a quick
room for one more question.
Sorry, Jonathan.
You'll ask afterwards.
- Okay, thank you and good evening.
My name is Brian Cameron.
I'm here in New York City as an attorney.
One question that I have,
of the various bar stools of
this institutional problem,
the one that seems to
me the most intractable
or the most difficult to solve
might be the electoral college one.
Because I can't see any of
the smaller states giving up
their outsized influence.
Certainly hope the legislation
succeeds but on the national
popular vote interstate
compact, a question for you
is the following.
I understand we're up to
about to states with 170 votes
more or less has passed it.
- [Man] 196.
- 196 as of today and if
Virginia then jumped on board,
now that it's got a common
legislature and governor,
maybe another 13.
But I read recently that there might be
some constitutional infirmities
with that interstate compact
but the article didn't
go into say anything
about what they might be.
Can you shed some light of that for me?
- In three minutes.
Yeah so, two minutes, sorry.
So first, I think it's a great idea.
Second, I think it will be challenged.
Third, there's a structural
difficulty it faces
which is its running a national vote
through 51 separate state jurisdictions.
And those state jurisdictions
get to draw their lines differently.
So California could decide
16-year-olds get to vote.
So then do the additional votes
from California get counted?
Of course, they do.
But then what does the nation begin to do
when it realizes that it's got
all of these separate people
gigging the game to
their own particular ends
and if we had an election
where those questions
became really central, I
fear it begins to unravel.
Because of course once
you've joined the compact
you can get out of the compact.
So I think a long-term solution
has gotta focus on
changing the constitution.
Now, you're right.
It seems unlikely until
you begin to realize that
A, if they realize some
change has gotta be made,
if we win our case, some
changes gotta be made.
And secondly, the existing
system doesn't benefit
the small states.
The swing states are not the small states.
The existing swing states
are Pennsylvania, Florida, Michigan.
Those are not small states.
Now, it happens Iowa and New
Hampshire are in that list
but that's just accidental
because they're are purple states.
So that's not as if the existing
system is doing anything
anybody ever intended or wanted.
The framers wanted to
benefit the small states,
this doesn't.
This doesn't guarantee a majority win.
It doesn't do any of the things
they said they were doing.
So there's nobody who should
be committed to what we have.
And I think small states
should be much happier
if they were allocating
electors proportionally
at a fractional level.
They'd have a reason for
presidential candidates to care.
Utah would matter, Wyoming
would matter, right?
Because it's just as much to get a vote
out of Wyoming as California.
It might be cheaper
because the media markets
are cheaper in Wyoming.
So I don't think it's as
impossible as people say
but I do think we should think about
how to get that solution
because as much as I support
national popular vote,
I'm not convinced it's stable.
And that's not even talking about
the constitutional challenges
which you asked here about.
- So I just wanna ask
you one last question
before we conclude.
I feel like what your
book is is calling for
is a dramatic revitalization
of our democracy
and of the way we
conceptualize representation.
Who we are, who they are,
what the civic us is.
And I was looking through
all of your ideas,
all of the litigation
that you have ongoing
and so I have a really simple question.
How do you do this all?
Why are you doing this all?
- So the answer is, it's a pathology.
(laughter)
And that's not even a funny pathology.
No, I mean, here it is, really.
So I started this fight a dozen years ago
because a dear friend challenged me to.
A kid named Aaron Swartz.
He came to me and said,
"Why you think your stuff
"you're working on that?"
I was working on copyright issues.
"You won't have any success
so long as we have this
"deeply corrupted Congress."
And I said to Aaron, "It's not my field."
And he said, "As an academic
it's not your field?"
I said, "Yes, as an
academic it's not my field."
He said, "Okay, what about as a citizen?
"Is it your field as a citizen?"
And I realized I couldn't
say no to him at that point.
I had tenure.
I had no reason I couldn't
work on that problem.
I agreed with him it was
the fundamental problem
and literally that night in
December in 2006, in Berlin,
I promised him I would give up the work
and I would take up this challenge.
And he and I started a group together.
And, okay, so some of you might know,
how many people have heard
the name Aaron Swartz?
Okay, so you know that name
because he tragically committed suicide.
We lost him to suicide.
So here's the pathology.
I feel like I can't not succeed at this.
The thing about suicide
is it has a blast radius
and anybody within the blast
radius feels responsible
in some sense and of
course I and everybody
feels responsible in some sense.
And so when I get up and
I get on the go to leave
and get on my plane and
my daughter looks at me
and says, "Why are you going, dad?"
And I have to really think to myself,
"I need to do something about this
"but this is why I'm here."
This is why I wrote that.
This is why I'm bringing every case I can.
This is why I've given
385 speeches on this issue
in the last 12 years.
Because he was right and he
shouldn't have been taken
from us and he was.
And so in this small
way he will inspire me
until we are finished.
And I hope in January
2021, we'll be finished
when the next president
takes up the challenge
to enact fundamental reform first
and I can go back to
just being a professor.
- I hope not.
So, really, thanks to you.
We wish you great success
with your new book,
"They don't represent us:
reclaiming our democracy"
I'm Brennan Center
fellow, Victoria Bassetti
and on behalf of the
Brennan Center for Justice
at NYU School of Law,
thank you all for coming to this program.
Please keep up with the
Brennan Center's work
by signing up for our
newsletter at brennancenter.org
and follow us on Facebook and Twitter.
Thank you all so much for coming.
(applause)
- Thank you.
