@Google: Lawrence Lessig: Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It


Uploaded by AtGoogleTalks on 16.11.2011

Transcript:
>>Male Presenter: I think most people here know Larry Lessig. You should know him either
from his work at Stanford or Harvard, Creative Commons, helped out the Electronic Frontier
Foundation, the Sunlight Foundation. There's a whole bunch of places you should know him
from.
But really the reason why we wanna pay attention to what he has to say is because he's been
right on so many issues, whether arguing in front of the Supreme Court, talking about
things like copyright extension, or--if people noticed a few years ago--he started to move
away from copyright and started to talk about broader issues.
Specifically, the influence or potential corruption of money in politics and a lot of institutions
that are important in the United States. So, I think it's important that we make sure that
Larry not be a Cassandra. You know, the prophet who could hear the future, but no one would
ever believe her.
And so, I think it's important for us to listen to what he's got to say today. Read through
the book. It's really good. Don't forget to badge in. But also, after the talk, please
take a little while and ask, "How can we try to make sure that he's not a Cassandra--that
we do take these issues seriously?"
Because, I think, the influence of money in politics and in our institutions is probably
the most important issue facing us today in the United States. So with that, thanks very
much to Larry Lessig.
[applause]
>>Lawrence Lessig: Thank, Matt. And it's great to be back. I have one sacred text. "There
are a thousand hacking at the branches of evil." Henry David Thoreau, 1846, on Walden.
There are a thousand hacking at the branches of evil to one who is striking at the roots.
Imagine a letter written by a young woman. "There were two clocks regulating our life--the
one on the wall and the one in the bottle. We built our life around those clocks. He
slept late so mornings were bliss.
“We could play and laugh without fear. But at some point, he would awake. And soon after
he woke, the bottle was opened. And then the older the day grew, the more terrifying my
life became. He was happy at first--just before dinner, the most happy.
“That's the only time I spoke to him, a moment to pretend I had a father who had a
feeling of love. He'd smile. He'd laugh. But then, he'd grow irritated. And by the end
of dinner, he was angry and if we weren't gone--usually just hiding in our room by nine--he'd
be violent. He hit me more than once.
“Once he tried to do something worse than hitting me and then I left and I never went
back. We struggled to do many things in that house to keep food in the house, to keep the
winter out of the house, to keep the house. But the one thing we never even spoke about
was getting him to stop.
“I don't know why. The bottle was just part of our life. We learned to live with it. Anything
more just seemed impossible." Now, the thing about us--we humans--is that we adapt, we
adjust, we learn to live with it until we can't.
And then a certain fever breaks out and if we're lucky, we have this Thoreauvian moment--a
recognition that we have to stop hacking at the branches and start striking at the roots,
the recognition that we have to become this sense of a root striker. OK. So, here's the
argument here.
I think that there's this feeling among too many of us Americans that we just might not
make it. Not that the end is near or that doom is around the corner, but that a distinctly
American feeling of inevitability of greatness, culturally, economically, politically, is
gone--that we have become Britain or Rome or Greece.
A generation ago, Ronald Reagan rallied the nation to deny a similar charge: Jimmy Carter's
fear that we had fallen into a state of malaise. And I confess. I was one of those so rallied
and I still believe Reagan was right today. But the feeling I'm talking about today is
different.
Not that we, as a people, have lost anything of our potential, but that we, as a Republic,
have. That our capacity for governing, the one thing that we were once most proud of,
this our Republic, is the one thing that we have all learned to ignore. Government is
an embarrassment.
And it has lost the capacity to make the most essential decisions and slowly it dawns upon
us that a ship that cannot be steered is a ship that will sink. This is not a Democratic
or Republican point alone. This is a genuinely multi-partisan frustration.
The sense that the government doesn't work is signaled by many different policy areas
on the left and the right, which systematically get blocked. And when confronted with this
systematic block, my suggestion is we need to exercise this Thoreauvian insight. So,
my objective this afternoon is to do a little bit of brainwashing.
[laughter]
To get you to the place that you see the roots that I want you to see. I'm gonna do that
with three some examples. One of them is familiar. Indeed, I told a similar story here the last
time I was here--the story around copyright.
On October 27th, 1998, I became a copyright activist the day President Clinton signed
into law a statute in honor of this great American, the Sonny Bono Copyright Term Extension
Act--a statute which extended the term of existing copyrights by 20 years.
Now, the question Congress was supposed to be asking when it passed that statute was,
"Would it advance the public good to extend the term of an existing copyright by 20 years?"
Copyrights are designed to create incentives, but we know about this universe. Put aside
Star Trek for a moment.
What we know about this universe is that its incentives are prospective. So, not even the
United States Congress can get George Gershwin to produce anything more.
[laughter]
So when you ask the question, "Does it make sense to advance the public good to extend
the term of existing copyright?" it's a pretty easy answer. Indeed, when we challenged this
statute in the Supreme Court and a bunch of economists wanted to sign a brief saying it
did not advance the public good, this liberal, left-wing--.
Oh, I'm sorry. Wait. This is Milton Friedman--right-wing, Nobel Prize winning economist, agreed to sign
the brief but only if the word "no brainer" was in the brief somewhere.
[laughter]
So obvious was it that you could not extend the public good by extending the term of existing
copyrights. But apparently there were no brains in this place when Congress unanimously extended
the term of these existing copyrights.
What there was, was more than six million dollars in contributions from Disney and related
corporations seeking the extension of their valuable copyrights--the public be damned.
Here's another example. Wall Street Journal, at the end of last year, was puzzled about
the explosion of temporary tax provisions in our tax code.
These temporary tax provisions expire after a limited period of time. And that leads to
this extender mania, as lobbyists and Congress race around to try to extend the particular
tax provision for another period of time. And the Journal wondered what explains the
explosion and change in the number of these extensions.
Well, it turns out the first of these temporary provisions was given to us by Reagan in 1981.
Congress passed the Research and Development Tax Credit. But because the Democrats were
skeptical about whether it would work, they made the tax credit temporary.
They said they would test it after a number of years. And if it turned out it worked,
they would make it permanent. If it didn't work, they would repeal it. So, after a couple
years, the economists asked the question, "Did it work?" The answer is yes. Left and
right economists all agreed that it did work. It was a great tax idea.
It spurred a kind of investment that otherwise would not have been spurred. And so, it made
sense absolutely to make this part of the tax code. Here's the puzzle. It is still temporary
to this day. Why?
Well, as Rebecca Kysar describes in this piece in the Georgia Law Review, "The principle
recipients of the research credit are large US manufacturing corporations. These business
entities are more than willing to invest in lobbying activities and campaign donations
to ensure the continuance of this large tax savings."
The Institute for Policy Innovation put it a little bit more sharply. "This cycle has
repeated for years. Congress allows the credit to lapse until another short extension is
given. Proceeded, of course, by a series of fundraisers and speeches about the importance
of nurturing innovation.
Congress essentially uses the cycle to raise money for re-election, promising industry
more predictability the next time around." Now this dynamic is central to how Washington
works. We architect tax policy in part, at least, not just to raise money for our treasury,
but to make it easier to raise money for our Congressmen's campaigns.
And not just tax policy. When Al Gore was Vice President, he had an idea to simplify
the regulation governing infrastructure that internet would come across. Right now, we
have two titles in the Communications Act--Title Two and Title Six. Title Two governs telephones.
Title Six governs cable. Those are two radically different regulatory structures. Gore's idea
was to put them together in a Title Seven and fundamentally deregulate them--much less
than even network neutrality regulation would require.
His team took the idea to Capitol Hill and the chief policy person described--the reaction,
he said the reaction was quote, "Hell no. If we deregulate these guys, how are we going
to raise money from them?" And you get this kind of sinking, terrifying feeling here,
right?
Recognizing that we tax in part to make it easy to raise campaign funds. We regulate,
in part, to make it easier to raise campaign funds. Campaign funds driving critical areas
of fiscal policy unrelated to the merits of the underlying fiscal policy. Here's the third
example.
Think about Wall Street. We've of course seen this collapse on Wall Street, which triggered
a collapse in the economy. What explains that collapse? Well, as Simon Johnson and James
Kwak describe in their book, "13 Bankers," part of the explanation is this perverse mix
of too little government and too much government.
Too little government in the form of deregulation. In the 1990s, we saw an explosion of financial
innovations, derivatives. But these innovations were essentially invisible to the market because
a series of regulatory changes in the 1990s made derivatives, unlike other financial assets,
not subject to the standard requirements that have existed since the new deal that they
be traded on public exchanges, transparently with anti-fraud obligations tied to every
transaction.
So, my colleague, Frank Partnoy, calculated that in 1980, 98 percent of assets traded
in our economy were traded under these standard new deal, trade-based rules. But by 2008,
90 percent of the assets traded in our economy were exempted from these exchange-based rules,
could be traded without transparency, could be traded without anybody knowing what the
prices would be for.
It could be traded without any anti-fraud requirements being tied to them, producing
this shadow banking market, which encouraged--because of the uncertainty it spewed everywhere--the
bubble which eventually burst and brought the economy down. But that alone, Kwak and
Johnson say, wasn't enough. In addition, we had too much government.
Throughout the 1990s, there was a beacon, a constant signal from the government that
there was, in effect, a government guarantee that when this bubble burst there would be
a bailout on the other side producing what is the dumbest form of socialism ever invented
by man--socialized risk and privatized benefit.
We suffer the downside. They get the upside. Now I know you guys are not lawyers. This
is a technical legal term, but this is an insanely stupid way--
[laughter]
to set up a financial system. And all that stupidity is just before 2008. Even worse
is after 2008, where we add insult to injury in the way that Congress increasingly functions.
Because after 2008, after the worst crisis since the Depression, after all who are not
involved in that crisis had concluded that one of the principle causes to that crisis
was the architecture of deregulation that Wall Street had purchased until 2008, after
the dean of deregulation, the Ayn Rand-ian, Alan Greenspan, Head of the Fed, confessed
in testimony to Congress that he was quote "mistaken" about whether the banks would act
in the public interest as opposed to their private interest.
After all of that, Wall Street was still powerful enough to blackmail the Democrats and Republicans
both to give them an essential "get out of jail free" card and to keep the core flaw
of our architecture of regulation the same.
If the banks were too big to fail before 2008, the banks are only too bigger to fail after
2008, leading many Independents of Wall Street to include that our risk of a collapse is
greater today than it was before the collapse in 2008. Again, why? What would explain this
stupidity in the architecture of regulation?
Well, lots of possible reasons, but here's the one thing we know. The fastest growing
sector in campaign contributions since 1991, and the largest chunk of contributions in
the 2010 election, come from the finance and insurance industries. OK. Here's one final
example.
I'm sure many of you, when you saw these images, had a question in the back of your head. How
was it that it's possible to launch such an experimental drilling platform, as the Deepwater
Horizon, without extensive environmental impact and risk studies?
All right. In my part of the country, we've just spent nine years and ten thousand pages
of environmental impact studies to permit the construction of this green energy technology.
So, exactly how much was required before they were able to build the experimental deep water
drilling platform, which was the Deepwater Horizon?
The answer is 17 pages before they were exempted from any further need for review, leading
Congress to be shocked of course.
[plays video clip] >>Male #1: I am shocked--shocked--to find
that gambling is going on in here.
>>Male #2: Your winnings, sir.
>>Male #1: Thank you very much. Everybody out in front.
[laughter]
[end video clip]
>>Lawrence Lessig: And of course, it was Congress that had required these fast track approval
processes, leading again to the question, "What would ever convince them that fast track
approval on experimental drilling wells made sense?" Lots of possible answers to that question.
The one thing we know is endless campaign cash driving to this conclusion. Now, here's
the point. No respectable Liberal or Libertarian or Conservative could defend these cases.
Each of them is an abomination from each of those three political philosophy perspectives.
So, how is it they become policy in the United States? Now, it turns out political sciences
are uncertain. They say it's a little bit complex. But here's the thing. You believe
you know. I just had to point to point to the money. And you believe you now know the
root cause to this stupidity.
And that's the core of my claim. Number one, it is because of cases like this, and I could
go on for hours, I promise--millions of cases like this--that Americans believe money buys
results in Congress. Seventy-five percent of Americans in a poll that we conducted for
my book conclude money buys results in Congress.
You think, "What were the 25 percent thinking?" I don't know.
[laughter]
But a little bit more Democrats than Republicans. But I guarantee you when the Republicans were
not in control, it was just as many Republicans as Democrats. So, whether it's two-thirds
or three-fourths, here's the thing we Americans all agree about.
Money buys results in Congress. Leading to number two. A belief in money buying results
erodes trust in the institution. So, last year Gallup concluded that eleven percent
of Americans have confidence in Congress. Gallup's number this year is a little more
optimistic. They say 12 percent.
[laughter]
But I just read today in the New York Times--New York Times CBS poll says that nine percent
of Americans have confidence in Congress. To keep this in some context, right, it is
certainly the case that there were more people who believed in the British crown at the time
of the Revolution than believe in our Congress today.
[laughter]
And at what point does an institution have to declare political bankruptcy? At what point
has it just lost the credibility with the people? What, nine percent isn't enough? Five
percent? What is the number when we have to say there is no more confidence in this government?
And that leads to number three. Low trust erodes participation in the system. Rock the
Vote, the organization that registered and turned out to vote the largest number of young
people who ever voted in the history of this nation, and arguably delivered the election
to Barack Obama, in 2010, found a large number of their voters were not gonna turn out and
vote.
So, they polled them. Why? Number one answer to that poll by far--two to one over the second
highest--was "no matter who wins, corporate interest will still have too much power and
prevent real change." And it's not just kids who think this. The vast majority of people,
who could have voted, didn't vote and didn't vote in part because of this belief precisely.
Now here, I'm gonna shift into professor mode. Here's my blackboard. It wasn't supposed to
be this way. That wasn't the intent. Framers of our Constitution gave us, as Conservatives
like to remind us, a Republic. But what they meant by a Republic was a quote "representative
democracy."
And what they meant by a representative democracy as Federalist 52 puts it was, "a government
that would have a branch quote 'dependent upon the people alone.'" OK? So, here's the
model of government. We have the people. We have the government. I do my own slides, so
it's cool the way that bounces, right?
[laughter]
The people, the government, marionette relationship between the two. Here's the problem. Congress
has evolved a different dependence. It's not just the people and the government. Increasingly,
it's the funders and the people and the government.
In a world where members spend between 30 and 70 percent of their time raising money
to get back to Congress, or to get their Party back into power--they can't help, like each
of you couldn't help--developing a sixth sense, a constant awareness about how what they do
might affect their ability to raise money.
In the words of the "X-Files," they become shape-shifters, constantly adjusting their
positions. Not on issues one to ten, but issue eleven to five hundred in light of what they
know will raise money. Leslie Byrne describes it when she came to Congress. She's a Democrat
from Virginia.
She was told by a colleague quote, "Always lean to the green." And then to clarify, she
went on, "he was not an environmentalist."
[laughter]
Now, the point is this a dependence, too. But it's a different and conflicting dependence
from a dependence upon the people alone because--surprise, surprise--the funders are not the people.
Indeed, candidates pay attention in campaigns most to those who max out in the campaign.
So, what percentage of Americans maxed out in 2010 in congressional elections in either
of the two cycles? The answer is point zero five percent of Americans. So, the Occupy
Wall Street people are so proud of their slogan, "We are the 99 percent." Bad marketing. They
are the 99 point nine five percent,--
[laughter]
who don't get listened to because they are not in the point zero five percent of people
who are directly tied into the influence that is our government. Now, this is--Supreme Court
doesn't recognize this yet, but you should.
This is corruption. It's not the corruption of brown paper bags secreting cash among members
of Congress. Up through the middle of the 20th Century, members of Congress had safes
in their office for cash. You think to yourselves, "I didn't know that they paid Congressmen
in cash." They didn't.
[laughter]
They just discovered that there would be cash on their desk and they needed a place to keep
it. [laughter] So, that was the way things were. But that's not the problem today. Our
Congress, in that sense, is the cleanest Congress in the history of Congress. It's not filled
with Rod Blagojeviches.
It's not filled with people who are violating any law. None of the corruption I'm talking
about is illegal. It's all legal, in plain sight. But it is corruption because it's relative
to the baseline the framers gave us of the dependence upon the people alone. We have
corrupted that dependence.
It is a dependence corruption because the wrong dependence has been allowed to step
into the middle of this system. So then, what does the corruption do? How does it affect
the results? Well, you can think about its effect in substance. But it turns out, interestingly,
bizarrely, but interestingly, this controversy about whether it affects the results.
There's some people who believe it doesn't affect the results. Indeed, the former Chairman
of the Federal Election Commission, Bradley Smith--I quote in his book, said this. "The
evidence is pretty overwhelming that money does not play much of a role in what goes
on in terms of legislative voting patterns and legislative behavior.
The consensus about that among people who have studied it, is roughly the same as the
consensus among scientists that global warming is taking place."
[laughter]
Now, to be clear, Bradley Smith is not a global warming denier. He is a corruption denier.
And he said this--we were on in interview on the radio. I just couldn't believe it.
I had to tweet it. But then I got in a lot of trouble for this hash tag.
[laughter]
But of course, that hash tag just means Bradley Smith--
[laughter]
just talking about--. OK. So, do we have evidence that the results are a function of the money?
Well, there's lots of recent studies that are beginning to make this absolutely compelling.
One of my favorites is this piece by Clayton Peoples that looks at seven thousand votes
over a period of 1991 to 2006.
It concludes, can show a statistically significant contributor influence in at least seven of
the eight Houses. The one House you couldn't show it was the House that passed the McCain-Feingold
Campaign Reform Act. So they were thinking good in that one term, but not any other period.
But I think more interesting is this piece by Martin Gilens at Princeton. Gilens took
about 17 hundred public opinion surveys about attitudes about how policy should change.
And he narrowed that down to about 887, where the attitudes of the top ten percent were
different from the attitudes of the bottom 90 percent.
And he asked the question, "When the top ten percent think we should go left, and the bottom
90 percent think we should go right"-- I don't mean that left and right politically. I just
mean go one direction and the other wanna go the other direction. "--which way do we
go?"
And what he found was "when Americans with different income levels differ in their policy
preferences, actual policy outcomes strongly reflect the preferences of the most affluent,
but bare virtually no relationship to the preferences of the poor or middle income Americans."
There is a vast discrepancy between what our Congress does if it in fact were following
the people alone, and what our Congress does given that it's following the thing I'm taking
for as the proxy for the funders. OK. That's substance.
But here, you can also just more easily identify agenda because remember, Brad Smith also said
it doesn't affect legislative behavior. And here, there is no basis for suggesting it
doesn't affect legislative behavior. Here's just one example. If I asked you, "What was
the number one issue Congress spent its time on in the first four months of this year?"
It's felt like many years this year, but just the first four months. We're in the middle
of two wars, huge unemployment problems, huge budget deficit problems. Still have a bunch
of questions around health care and still have a bunch of questions around global warming
that have not even begun to be addressed.
What was the issue they spent most of their time dealing with? The answer is the bank
swipe fee controversy. Now, what's the bank swipe fee controversy? Well, the bank swipe
fee controversy is whether banks, when you used your debit card, get to charge more,
or retailers when you use your debit card get to be charged less for the use of debit
cards.
That is the critical national issue that dominated the Congressional agenda for the first four
months. And you think, "Well, why would that ever be? Why would swipe fees be the center
of what they care about?"
How many members of Congress got elected going down there saying, "The thing I'm going for
is to deal with that swipe fee controversy." Right? Well, the answer is one Senator described
it like this. "The fights down here can be put into two or three categories: The big
greedy bastards against the big greedy bastards; the big greedy bastards against the little
greedy bastards; and some cases even the other little greedy bastards against the other little
greedy bastards."
[laughter]
So we have this kind of controversy. And here's the money line, so to speak. I don't even
think the authors, Zach Carter and Ryan Grimm, saw the significance of this, but this is
the real money line in the piece.
They say, "The clock never ticks down to zero in Washington: one year's law is the next
year's repeal target. Politicians, showered with cash from card companies and giant retailers
alike, have been moving back and forth between camps, paid handsomely for their shifting
allegiances."
So, it's not just tax policy that gets architected to raise money for members of Congress. It's
not just regulation that gets architected to make it easy to raise money for members
of Congress. It's the very agenda of what Congress addresses that gets set in a way
to make it easier for members to raise money.
So why don't we address unemployment? Turns out unemployment doesn't pay so well [laughter]
for Congressmen raising money for their campaigns. Now, my view is we critically need a way to
change this. And we change this by fixing the dependence. If the problem here is that
the funders are not the people, a solution is to make the funders the people, to give
them a way--.
I know that looks like one word. I mean two words, here. I don't mean give Congress away.
I know a lot of people would like to do that. I mean, give Congress a way to fund their
campaigns without Faust, without selling their souls, and thereby without alienating America.
And the one way, and I increasing think the only way to do this, is to commit to a system
of publicly funding public elections. Now, a particular brand of public funding is what
I want to pedal here. I want a public funding that changes from large-dollar funded campaigns
to small-dollar funded campaigns.
And there are lots of examples of this around the country. Three states in particular, Arizona,
Maine, and Connecticut, have systems where candidates opt into a regime where they take
small dollar contributions only and the regime effectively amplifies those contributions,
so that they can successfully wage a campaign having never taken a large dollar contribution
from anybody.
There are many ways to do that. I describe one in my book that's a little different from
what Maine and Connecticut have done. And I can talk about that in questions, but the
point I want you to recognize, the critical point about this way of funding elections,
is if we had an election where the majority of Congress--the vast majority of Congress--took
small dollar contributions only, then we all could believe, as we all want to believe,
[laughter] that when Congress did something stupid it was either because there were too
many Democrats or because there were too many Republicans, or because they just didn't understand
what they were doing.
But not because of the money. The essential element of mistrust and cynicism in the system
would've been removed by an alternative funding system that gave us no reason to doubt the
integrity or credibility of what that system was doing.
Now, this is a way, I believe, to create a reassertion of the dominance of the people
and the dependence the framers intended and to restore the institution of Congress to
at least be a little bit more popular than King George at the founding.
[laughter]
OK. Now that's the argument. Here's the hard question. How do you get there? I don't think
it's hard to describe the problem. We all believe we believed in the problem before
I even said anything about it.
And it's not even hard, I think, to describe a solution. I'm happy to tell you more about
mine, but I think the solution is pretty clear. What is hard--maybe what's impossibly hard--is
to imagine the political movement that brings about the solution. And the reason for that
is an insight given to me by Congressman Jim Cooper, Democrat from Tennessee, who has been
in Congress for as long all but about 20 other members of Congress.
And Cooper said this. He told me "the problem with Capitol Hill is it has become a quote
'Farm league for K Street.'" K Street, the home of lobbyists. A farm league for K Street,
meaning members and staffers and bureaucrats have this increasingly common business model
in the back of their head.
The business model is focused on their life after government, their life as lobbyists.
Public Citizen calculated between 1998 and 2004, 50 percent of Senators left to become
lobbyists. Forty-two percent of the members of the House. Those numbers have only gone
up.
And so, in a world where everyone depends upon the existing system surviving, because
that's the only way they have a lucrative after-government future, how to we begin to
imagine that institution and those people--the lobbyists, the members of Congress, the staffers,
the bureaucrats--ever organizing to change that deeply corrupt system?
Well, in my book, I consider four ideas. One of them is the ordinary idea--the idea of
passing a statute. That idea is impossible. I looked it up on Google. It is impossible.
[laughter]
It's technically impossible. It's impossible because there is no way they will ever radically
change the system that both got them there and will carry them out in very well-paid
lobbyist’s jobs. So that leads me to three insane solutions that are only improbable,
not quite impossible.
And the third of these, the one that I ultimately think will be the most important, is this
suggestion of a convention. So, the framers of our Constitution in Article Five created
the standard way by which the Constitution gets amended. That is, Congress proposes an
amendment and three-fourths of the states ratify it.
But then at the convention, somebody said, "Well, what if Congress is the problem? What
do we do then?" And so, they set up an alternative path. The alternative path is that states
can call on Congress to call a convention. The convention then proposes the amendments
and those amendments have to pass by three-fourths of the states.
So either way, 38 states have to ratify an amendment, but the sources of those amendments
are different. One is inside. One is outside. Now, all three of these insane ideas are really
just ways around what is, I think, the cancer that is DC right now. And it's recognition
that the ordinary means of politics are just not feasible for this kind of problem.
In this--you can think of--extraordinary times, what's gonna be required here is that we do
something that we have not done in a very long time--to build a politics that looks
different from this. A politics that is not--to borrow from my older work-- a 'read-only'
politics--where people sit there and passively consume what's fed to them in broadcast form.
But instead, read/write politics where people become more active and engaged and reclaim
this from the politicians. Now, here's the hard part. I don't actually know whether it's
possible for us to do it. We don't have any good evidence that we, as a people, have the
capacity to actually take back power from the professional politicians and reorder it.
No good example in our recent past. Lots of good reason to believe people are too disengaged
to be able to do it. I do think we know, however, how that process gets started. And it begins
with, first, clarity. The clarity of Thoreau. The clarity of a root striker.
So it might not be surprising that the coolest website of the Occupy movement is the Occupy
Seattle movement. But if you go to their demands page, you're met with this list of literally
hundreds of demands, which they are now trying to decide which are the most important of
their demands.
Everything from protect the environment to--my favorite--end the industrial prison complex.
OK. Which is significant there and also here, but that's the scope. All right. Now, I think
all of these demands are important. It would be great to get Congress or the states to
address any of these demands.
But the point is if you come forward with a list of a hundred demands, you come forward
with noise. And nobody hears anything because they can't hear everything you're trying to
say. Instead, this movement needs to find a way to clarify and focus. It needs to celebrate
its diversity, recognize there are leftists in that movement.
They shouldn't deny the fact they're leftists. There are people on the right in the Tea Party
movement. They shouldn't deny they're from the right. They should all stick to their
principle, but they've got to seek a common ground.
Not compromise, but a common ground so that they actually do speak for the 99 percent,
not just the 21 percent of people who identify as liberals or the 30 percent of people that
identify as supporters of the Tea Party. I think there's an exercise we all should go
through.
We should be forced to come into a room and say, "We on the left, believe this. We on
the right, believe this." But then ask the critical question, whether there's a set of
beliefs that we all share, that could be the foundation for some important reform. And
my view is that if we could focus people's attention on the wide range of issues that
they're frustrated about and get them to connect the dots--so whether it's on the left, health
care reform, or on the right, government bailouts.
On the left, global warming or on the right, complex taxes. On the left, financial reform
and on the right, financial reform. Whatever the issue is, if we could focus them, they
would see this root cause. And the root cause is this picture. A democracy that is distracted
by a dependence that was never intended.
And the practice of the root striker has got to be to find a way to get, we the people,
to see this root. So, that's number one--clarity. Number two is a kind of boldness. Now, in
the book, I make a little bit of fun of a guy you're familiar with.
[laughter]
So, Eric Schmidt came to a talk at the American Academy in Berlin. And it was the first time
I'd ever met him, first time I'd ever heard him talk. And I was amazed. It was the first
time I'd ever heard anybody lay out the Google vision.
And I was astonished. I mean, I was astonished by him. He was extraordinary, but I was astonished
by the Google vision. This is a place. You saw these really big ideas about how they
were gonna, you guys, were gonna remake the whole world. The whole world.
And I was more excited about the work going on here than I had even been in my whole life.
I felt like this was amazing. So then I thought, "OK. Wow. This is a company of big ideas."
And I said, "Eric, so there's a whole bunch of public policy issues where the world is
against you guys.
And I think you guys are right." So, immigration, anti-trust, copyrights, network neutrality.
You guys are on the right side of all of those issues and the rest of the world is on the
wrong side." And the reason the rest of the world is on the wrong side is exactly the
corruption that I've been talking about today.
So, what are you gonna do about it? Are you gonna sit around and swipe away these bad
policies like flies at a picnic? Or are you gonna solve it in the way Google addresses
a problem and radically remakes the world to solve it? And for the first time in that
evening, a tiny idea was expressed.
And it was expressed by Eric Schmidt. Because he didn't have any big idea to think about
solving this, the most fundamental problem. I agree with Matt that we, as a Republic face--any
idea like, "Oh, we're gonna get the Google PAC to be more aggressive in teaching people
what our views about policies were.
Nothing to change the core root of the problem. Just playing the system with all sorts of
resources allied against you. What we need here is a Google-level idea. What we need
is the kind of big idea that you deploy in every other sphere of social life that might
get this democracy to the place that could address this problem that I guarantee you
95 percent of experts say is impossible for the world to solve, for us to solve.
Impossible. But that's the sort of problem you guys take all the time. That's what you
do. That's your job--the impossible problem. And we need that. And we need that from people
like you. Now, number three, we need courage. And this is also related to the company, but
I won't pick on the company anymore.
Instead, I'll talk about my friend, Arnold Hiatt. So, he's a humble guy. This is the
biggest I could find of him on the net.
[laughter]
[Lawrence Lessig coughs]
Arnie was the president of Stride Rite. They make great shoes, like Keds. He's also a loyal
Democrat. In 1996, he was the second largest contributor to the Democratic Party. So, in
1997, Bill Clinton invited him and 30 other large contributors to a dinner at the Mayflower
Hotel to tell him, the President, what he should do for the remaining part of his term.
So, it's this dinner of these fat cats at the Mayflower Hotel to help guide policy in
America. And each of them got to stand up and address the President. We didn't have
any pictures. Arnie was the last one to speak. I kind of envision it like this.
He stood up and he looked the President straight in the eye and he said, "Mr. President, I
know you're an admirer of Franklin Delano Roosevelt. So I want you to put yourself in
Roosevelt's shoes in 1940, when he reluctantly came to recognize that he needed to convince
a reluctant nation to wage a war to save democracy."
'Cause he said, "You, too, Mr. President. You, too, need to convince a reluctant nation
to wage a war to save democracy. Not a war against fascists, but in a certain sense,
a war against us fat cats." A war against people who believe, merely because they are
rich, they are entitled to guide government policy.
People who believe merely because they've been successful in the marketplace, they're
entitled to have dinner with the President. People who have convinced the American public
that this republic does not work. Now, put yourself in Hiatt's shoes. Imagine yourself
in that room with 30 other fat cats and the President, basically saying to each of those
fat cats and the President, "This is illegitimate what's happening here."
There was silence after he said what he said.
[laughter]
The only published account of the evening says that Clinton's response effectively slashed
Hiatt to pieces, humiliating him in front of the group. I think 14 years later, we need
to recognize that it was Arnold Hiatt who was right.
We do need to convince a reluctant nation to wage a war to save democracy. But where
Arnold Hiatt was wrong was in his belief that politicians would wage that war. It's not
gonna be politicians. It's gonna be citizens. It's going to be us. It's going to be root
strikers.
And I pray it's going to be you. It is our job that requires our courage. It is our republic.
It is ours, not theirs. They took it away, but we let them. Here's one more story before
I stop. So, many of you might remember--actually, many of you weren't born, but OK.
Many of you might remember this event, 1989. The Exxon Valdez crashed into Prince William
Sound, ran aground, eleven million gallons of oil was spilled into the Sound. This is
the recording of Captain Joseph Hazelwood when he called in the accident.
[plays sound clip]
[static]
>>Captain Joseph Hazelwood: Yeah. Ah, it’s VALDEZ back. Ah, we’ve— ah, should be
on your radar there— we’ve fetched up, ah, hard aground north of, ah, Goose Island
off Bligh Reef. And, ah, evidently, ah, leaking some oil, and, ah, we’re gonna be here for
a while. And, ah, if you want, ah, so you’re notified. Over.
[end sound clip]
>>Lawrence Lessig: And ah, if you want, as, so you're notified. Over. Now, as many of
you are thinking, there might be a little bit of a question about whether Captain Joseph
Hazelwood was intoxicated at the time this accident occurred. He denied it. He said he
only had four vodkas before he got on the ship.
But his blood level alcohol indicated he must have been at least six times over the legal
limit when he climbed on board that ship. But he fought it. His lawyers fought it hard.
There was some ambiguity in the evidence and he was not convicted. So, let's say there
was doubt about whether Hazelwood was drunk when he was captaining a supertanker.
What there was no doubt about was that he had a problem with alcohol. His mother testified.
She had known he had a problem with alcohol. In 1985, four years before the accident, Exxon
had treated him for his problem with alcohol. After the accident, Exxon's President said
he "thought he had mastered the problem."
But in 1986, he had his driver's license revoked for a DUI. In 1988, he had his driver's license
revoked for a DUI. At the time he was captaining a supertanker, he was not allowed to drive
a VW Beetle.
[laughter]
OK. But forget Hazelwood. Instead, I want you to think about those around Captain Hazelwood,
these other officers. People who could have picked up a phone while a drunk was driving
a supertanker. I want you to think about the people who did nothing because all but one
of those officers did nothing.
What do we think about them? Now, I ask this question because as I think about the problem
this nation faces increasingly, I believe we are they. This nation faces critical problems
requiring serious attention, but we don't have institutions capable of giving them this
attention.
They are distracted, unable to focus. And who is to blame for that? Who is responsible?
I think it's too easy to point to the Blagojeviches and hold them responsible, to point to the
evil people and hold them responsible. It's not the evil people. It’s the good people.
It's the decent people.
It's the people who could've picked up a phone. It's us. It's we, the most privileged. Because
the most outrageous part here is that these corruptions, of course, were primed by the
most privileged, but they were permitted by the passivity of the most privileged as well--permitted
by us.
When Ben Franklin was carried from the Constitutional Convention in the summer of 1787, a woman
stopped him on the street and said, "Mr. Franklin, what have you wrought?" Franklin replied,
"A republic, ma'am, if you can keep it." A republic. A representative democracy.
A democracy dependent upon the people alone. We have lost that republic and all of us have
to work to get it back. Thank you very much.
[applause]
I'm happy to take questions. I'm a law professor, so I could call on people if you don't ask
questions.
[laughter]
Yes, sir.
>>MALE #1: Do you have any opinions on electoral reform? I can't vote for the party I want
'cause if I vote for anybody other than Republicans or Democrats, my vote is wasted.
>>Lawrence Lessig: Yeah. I think that there's a whole list of other reforms that we also
need to think about with democracy. The way we gerrymander districts, the way we have
winner-take-all seats. All of these things I think are critically important, too. I'm
trying to think about the sequence of problems.
And I think the sequence of problems is, this is the problem we need to solve first to create
an atmosphere, an opportunity, to begin to address the other problems. So, I'm happy
to sign up with you on that once we fix the problem I'm talking about here first. Yeah.
>>MALE #2: Hi. Two quick questions. The first is, what's the name of the Senator that came
up with the little bastards that are greedy in the greedy bastards quote?
>>Lawrence Lessig: He would not go on the record with him name, [audience chuckles]
so the Huffington Post piece says it's an anonymous Senator who said this.
>>MALE #2: OK. Secondly, about the Constitution Convention, using say, legislatures. How are
the state representatives gonna be different from the national representatives? 'Cause
aren't they just as greedy and looking to climb the ladder of political opportunity?
>>Lawrence Lessig: Yeah, so state legislatures just passed resolutions calling on the Convention.
And the question is, how do you populate the Convention? And here's the really insane,
totally completely insane idea, that I have for the Convention.
I think the Convention should be populated by a random selection, random proportional
selection, of citizens. Now, people think that's crazy. And I agree. You're not gonna
argue anybody into insanity.
I think what you've gotta do is to show them, like let's run 30 or 40 or 50 of these mock
Constitutional Conventions where we have deliberative polls where we randomly select a representative
mix of people from a jurisdiction and we give them the information they need.
And we have them work through the issue and see what they come up with. California has
a good example of this. The California Forward Project ran a deliberative project, deliberative
poll, around the question of what California should do. And the product of that is extraordinarily
impressive--much better than anything the professionals did.
And I think that signals the core insight, which is politics is one of these rare sports
where the amateurs are actually better than the professional. Because the professional
is good at figuring out how to benefit the special interests that the professional depends
upon.
And the amateur, like a jury, can be summoned into a state where they're not thinking so
much about the special interest. So, I think the only way a Convention makes sense is if
we can avoid it being captured in exactly the same way government has been captured.
And I think the only way to that is to have this randomly selected body be the Convention.
>>MALE #3: First of all, thank you so much for being here and for devoting so much time
to this very important issue.
>>Lawrence Lessig: Thank you.
>>MALE #3: My question is, given the election of Obama in 2008, and then the following three
years, how much of the overwhelming Democratic majorities and the election Obama have helped
the momentum of this campaign finance reform campaign?
In that, I think there's a lot of people who sort of generally understand the Republicans
were bought, but I think when the nation was rallied around this feeling in 2008, and then
the disappointment that's come out of it, I just--.
>>Lawrence Lessig: Yeah. You and I share that view precisely. The book is--. Obama was a
friend. He was a colleague of mine in Chicago. I campaigned for him. I worked hard for him.
I talked to a lot of people in here when he first was on the trail about how he'd be so
great for what we cared about.
But the only reason I think he was credible as a candidate over Hilary Clinton, was that
he, unlike Hilary Clinton, said, "This system is the problem. We have to take up the fight
to change the way Washington works. And if we don't, our children are gonna be facing
the same problems we faced.
And our children's children will be facing the same problems they face." So, he made
it--. He said twice at least, I have recorded in the campaign, "This is the reason I am
running. To change the system." And then he got elected and he opened up the Clinton playbook.
And he ran his Administration according to the way Hilary Clinton would've run her Administration.
And I think maybe Clinton would have done a better job. I don't know. But if Clinton
had done exactly what Barack Obama did, I think we should say, "Great. You did what
would come from that kind of Administration. But you promised, Barack Obama, a different
Administration."
I feel it's a betrayal from what we thought we were getting. It makes it really hard for
any of us to believe that reform is gonna come from the top or from any insider. So,
I think that this is why it becomes critical to think about these outside traditional politics
solutions, which is unfortunately, I think, the only path we've got right now.
He doesn't stand credible on this issue. The one person who is credible on this issue is--.
I will vote for Obama over any Republican except one. The Republican you've not heard
of. His name is Buddy Roemer. Now, it's funny you haven't heard of him. I mean, he was a
governor.
He was a four-term Congressman. He ran a bank for 20 years without taking government bailouts
and successfully created this community bank. But he has made a pledge in his campaign for
the Republican nomination for President where he will take no more than a hundred dollars
from anybody.
He will commit to no PAC money, full disclosure, because he wants to as his slogan, "It's free
to lead." But because he takes no more than a hundred dollars, everybody says, "Well,
you can't possibly win so, we're not even gonna pay attention to you." So, he hasn't
even had a chance to make this case in the debate.
But if Buddy Roemer were the candidate in the Republican side, that would be a game-changer.
If it were a Republican making this argument, then it would be much easier to imagine this
argument actually having play.
>>MALE #3: Thank you.
>>MALE #4: Thank you for coming to talk to us today. I have a question about--. I think
we all can understand that there's obviously a role that Congress has in perpetuating this
system. And there's a role that we all have in our lack of action in perpetuating this
system.
But I think one thing, you didn't get a chance to talk about and I don't know if you talk
about it in your book--I look forward to reading it--is the role of the Supreme Court and notably
one of your own bosses.
And how you talk about the people want to be more involved, but at this point, the Supreme
Court has defined "person" to be an incredibly broad system and how we can move away from
treating corporations as people without their movement and how we can actually affect meaningful
change without movement on the Supreme Court.
And a Supreme Court that seems very unlikely to move on that particular issue.
>>Lawrence Lessig: Yeah. So, the particular version of public funding that I advance is
completely immune from Supreme Court invalidation. Nothing in the Supreme Court, even this Supreme
Court's doctrine, would draw this type of public funding into the out.
But it leaves the problem of independent expenditures, both of individuals, George Soros or the Koch
Brothers, as well as corporations, which now have unlimited amounts to spend. And it took
a comedian to teach the Supreme Court that, in fact, they didn't have to be disclosed
if they all could be secret because you could channel them through a C4 that would itself
be identified, but the contributors to the C4 not. OK.
So, we have to address the problem of independent expenditures. Now, my view is the law should
not ban anybody from saying anything. I think corporations should have a right to participate.
But they shouldn't be able to dominate the political process so that we have not just
shape-shifting to appeal to the funders, but we have shape-shifting to appeal to the independent
expenditure guys and therefore, the same kind of dependency that corrupts the system.
So, the only way to get there without imagining a Supreme Court reversing itself is to give
Congress the power to limit, but not to ban, independent expenditures. And if you're gonna
change the Constitution from that standpoint, I say let's have an amendment that has three
components.
Number one, public elections must be publicly funded. Number two, contributions to candidates
should be capped. I'd say at a hundred dollars--equivalent of a hundred dollars. Number three, Congress
has to have the power to limit, but not to ban, independent expenditures of both corporations
and people.
It just has to have the capacity to create a time for election that's not just about
the money. But getting to the place that we can have the chance to have that amendment
passed, is the hard thing because again, I looked it up, there's zero chance Congress
is gonna propose such an amendment.
And so, if Congress is not gonna propose the amendment, what's the path to get it at least
on the table for states to adopt?
>>MALE #4: Thank you very much.
>>Lawrence Lessig: Yup.
>>FEMALE #1: Hi. I'm wondering about your perspective on venture philanthropy and the
role of money outside the congressional system. Is it a pure good? I'm thinking, for example,
of education reform, the Charter School movement, that sort of thing.
Or, is there some danger there that money is talking more than it ought to, even in
those worlds?
>>Lawrence Lessig: Yeah. It's a great question. I don't think you can say without reservations
that it's good. Although, you can say it's really great that it's out there, right? There
are foundations that are not disciplined enough to insulate and protect the recipients from
developing the wrong kind of dependency on the foundation.
So, it distorts them in a way that I think is not productive. And so, harmful. But I
think there are others that adopt a very appropriate relationship to the targets of their giving
that allows them to maintain their independence, but does support their work. So, I think in
a case-by-case way, we gotta make a decision about what's the appropriate kind of relationship
to be drawing in that case.
>>FEMALE #1: Thank you.
>>MALE #5: So, we're out of time to take more questions, but thanks again for coming.
>>Lawrence Lessig: Thank you. Thanks a lot.
[applause]