Lawrence Lessig on the Difference Between Him and Bernie Sanders
Lawrence Lessig, the Harvard law professor and political activist, announced Tuesday that he is exploring a bid for Democratic presidential nomination. He says the aim of his candidacy is to secure passage of the Citizen Equality Act of 2017, a proposal that would put in place new methods to ensure equal freedom to vote, equal representation, and citizen-funded elections. His political campaign is, in a sense, a fulfillment of Lessig’s work to overhaul campaign-finance laws. He is vowing, if elected, to serve as a “referendum president,” then cede the White House to his vice president; he would stay in office only as long as it takes to enact his agenda. In an interview conducted Monday afternoon by phone, Lessig spoke about big money, the difference between him and would-be primary rival Bernie Sanders, and the importance of the Black Lives Matter movement. The transcript has been lightly edited for clarity.
Bloomberg Politics: First thing’s first. Why are you running for president?
Lawrence Lessig: Well, as I’ve watched the Democratic primary develop, I’ve been inspired by the bold ideas that every candidate is talking about—how they’re going to fix climate change or take on Wall Street or deal with student debt. But I’ve been increasingly struck and frustrated by this almost denial: they’re not going to be able to do any of that until they, in the words of Elizabeth Warren, fix the rigged system first. Eighty-two percent of Americans believe the system is rigged. They’re right. And the only way we can get those changes enacted is if we address that rigged system, and fix it, and then have a Congress that’s actually free to lead.
And so while the candidates have increasingly identified steps they would take along the direction of fixing this rigged system—this has been encouraging—none have shown us how they’ll have a mandate to do this first, and then be able to address these other problems that we all agree have to be addressed. So what led me to think that I need to find a way to intervene was my belief that we could build the mandate to fix this rigged system first, and then give the next president the opportunity to actually be president in the context of a Congress that’s free to lead rather than follow their funders.
That led me back to this thing I’d written about in my book Republic, Lost: what we call the referendum president. The idea behind the referendum president is—it’s clear from the polling that if Americans were asked in a referendum whether they support reforming the system to achieve equality as citizens, they would overwhelmingly support the idea. But we don’t have a referendum power in the Constitution. So the idea was to find a way to hack one into the Constitution. That’s what the referendum president does. The referendum president says, “I’m going to run for this one issue, this fundamental issue, the first issue that we have to resolve, and when elected I will remain as president until Congress passes legislation that would address this single issue, this first issue.” Then once that’s done, I would step aside, and the vice president would take over and become president for the remainder of the term. They get to run for re-election.
That device would create a mandate that is more powerful than any mandate possible in our political system. Even a landslide victor for president, who has a mandate: that’s divided among the six or seven issues that they were talking about. But a referendum president has just one. That’s the idea, to create the power necessary to take on what will be the hardest political issue for Congress to resolve.
Bloomberg Politics: In this scenario, the vice president has particular importance. Who would your vice president be?
Lessig: I’m not going to pick the vice president—that’s for the convention to do. I could say what kind of vice president would be exciting to me.
I think what we’ve see in the Democratic Party is a resurgence of passion and excitement when we have candidates willing to take on bold ideas and push them strongly. Bernie [Sanders] has done that. Elizabeth Warren has done that. I think that’s the kind of person who could inspire the base enough to make sure that we win the next election. Those are the kinds of people I’d love to see on the ticket. But it’s a judgment to be made at the convention, based on what we see would be necessary to actually prevail in the general election.
Bloomberg Politics: You speak with enthusiasm of Vermont Senator Bernie Sanders, a progressive who is already running for president. What will you say, do, or achieve that Sanders is not saying, doing, achieving?
Lessig: There are two things. Again, to be clear about what kind of reform I’m talking about: If you think about, why is the system rigged? The basic reason the system is rigged is that we’ve lost a fundamental commitment of a representative democracy, which is that citizens have equal political power within that representative democracy. This is the core idea of our framing Constitution—that we have equal citizenship. And so what I’m talking about are reforms that would reestablish equal citizenship.
The one that’s most important to me is to change the way elections are funded, because right now we’ve got this kind of weird, green primary where you’ve got to compete among the funders to get the money you need to win. And obviously that gives those funders enormous power relative to your average citizen—that’s a violation of equality. So what we’ve described, and what we call the Citizen Equality Act, are three areas where this inequality exists: funding is one, equal freedom to vote is another—you’ve got voter ID laws: techniques that suppress the ability of people to vote equally—and third, equal representation, ending political gerrymandering.
These three ideas together would define the most important equality act for citizenship we have seen in 50 years. And that’s the equality that I am pushing.
Now, Bernie is pushing a different equality. Bernie is talking about wealth equality, economic equality. And while personally I agree with much of what he says about the incredible harm that’s been done by the incredible inequality that’s been produced, the reality is: America is not united around the idea of wealth equality the way America is united around the idea of equality among citizens.
So what I’m pushing is a big idea that I think could actually unite America—and what Bernie is pushing is a big idea that, while many of us in the progressive part of the Democratic Party love it, all of America does not love. That’s a very big difference between the two of us.
The second big difference is that Bernie is talking about these proposed reforms that are important and good reforms, but he’s not talking about how he could get the mandate to get these done first. Because if you don’t get the mandate to get these done first, nothing else matters—you’re not going to get any of these other things done. What I’m talking about is a strategy for getting this reform done first. So that once I would resign, the next president coming in would have an opportunity to do something—because they would have a Congress free to do something.
Those are two pretty fundamental differences between us, even though I’ve long admired Bernie for what he believes. He is a genuine leader and, I think, extraordinarily inspiring for what he’s done. What I’m trying to do is to create the conditions where somebody like that could actually achieve something once president.
Bloomberg Politics: And as for Hillary Clinton, the Democratic front-runner? What do you think, for instance, of her push on voting rights?
Lessig: I think what she’s doing on voting rights is fantastic. What she needs to do is be talking about how, in the first days of her administration, she would be pushing voting rights, equal representation—so that we end political gerrymandering—and this citizen funding of elections, so that we don’t continue to have this corruption of the “green primary” in the way that we fund elections.
I think Bernie and Hillary both are great on voting rights. Neither of them are talking about equal representation—you know, it’s the not well-hidden conceit of both Democrats and Republicans that they love political gerrymandering—because it makes it easier for them to limit the number of contests that they have in political elections.
I’m talking about equal representation and neither of them are talking about that. I’m pushing the most aggressive program for addressing corruption of the way we fund campaigns because, like most Americans, I think that system is deeply corrupted and has to be fixed first.
That’s the substantive difference. But more important is the strategy for getting this change first. They don’t even frame it as a change they have to get first. But this, I think, is the most important thing.
Unless we can get that change first, then this is “change we can believe in” all over again. We’ve been through this. This is, you know, Lucy and Charlie Brown with the football. Once again, we’re going to have a wonderful imagination about how we’re going to change America and hit the reality that the system is rigged—and that means that we won’t get the change.
Bloomberg Politics: You've been a vocal opponent of big money in politics, a major proponent of campaign-finance reform. How will you be dealing with campaign-finance reform in your own presidential campaign? How will you reconcile the need to raise a whole lot of money—and really fast—with your stated desire to end all super-PACs?
Lessig: My view is that reformers should not be unilaterally disarming: that you should be supporting candidates who support fundamental reform, but you should not give up the opportunity to win elections to get fundamental reform.
There are people who take a different position. My friend Buddy Roemer, who ran in 2012 in the Republican primary for president—arguably, or, I don’t think arguably, absolutely the most qualified candidate in that race—three-term congressman, third as a governor, started a bank—he self-imposed limits of $100 from anybody. What that meant is that nobody could take him seriously because he would never be able to raise the money necessarily to compete. So he disqualified himself by imposing on himself the rule that he hoped would be adopted as a law once he became president—I think that’s just a mistake.
I don’t think there’s any inconsistency in saying, we’re going to live by the law in order to change the law. Just like women were finally given the right the vote after they protested strongly and vigorously for many, many years. It was men who had to vote to give them the right to vote. There’s no inconsistency in that. You took a less just system and voted to create a more just system with it. I think that’s what we need to do here. We need to take a less just system and vote to create a more just system by voting to create citizen equality.
Bloomberg Politics: How will you pay for ads? How will your campaign expend money to gain votes?
Lessig: What we’ll be doing initially is using fundraising to build the organization that can get us to a place where we qualify for participation in the debates. That’s the critical first step for our campaign. And if we get into the debates, then it gives us an opportunity to convince the Democratic Party to make this the core issue that they work on—whether it’s me as the candidate or anybody else.
That’s the first step that we’re going to do. We’re going to run a campaign the way you would run a campaign to win.
I’ve been different from other reformers in the field by focusing on the fundraising as the source of corruption, not on the spending as the source of corruption. I don’t think it’s corruption just because I have ads that I or you or other people don’t like, that’s not corruption—it's the politicians that are corrupted when they try to raise the money they need to become and maintain themselves as politicians. That won’t change until we change the way we fund elections.
I’m in a kind of unique position because what I would be doing in running for president is to be collecting money from people who know that, if I win, and am successful, they will have less power in the political system than they have now, right? So, if a super-PAC develops—and obviously the law forbids me from creating a super-PAC, and I’ve been incredibly careful about that; Mayday PAC, which is the super-PAC I was associated with, has nothing to do with this campaign—if a super-PAC were to develop where billionaires gave money to support this fundamental Citizen Equality Act, that would be the equivalent of white people marching with African-Americans to get equal rights in 1965. Because what those rich people would be doing would be trying to bring about a change that reduced their political power, just like whites would be arguing for a change that reduced relative power of whites to blacks in society.
I think that’s actually an essential part of making it happen—you have to unite both left and right, insiders and outside, and rich and poor, and represent that a republic, a representative democracy, is not true unless it actually gives people equal power inside of the political democracy.
Bloomberg Politics: Do you think that Tea Party supporters might like some of what you’re doing here? Do you expect any Republicans to back you?
Lessig: I’m in a Democratic primary, I’m not really concerned right now about the Republicans or the Tea Party. But I absolutely do believe—because I have had eight years of experience now talking about this issue in every context I can, including to the richest people, to Tea Party people, to every group I can—I absolutely do believe that people on the right, at least outside of the Beltway, are as disgusted by this system as people on the left. And that if you give them a proposal for reform that doesn’t conflict with some of their fundamental values—I’m not talking about restricting speech or limiting people’s ability to participate, I’m talking about increasing the way, increasing the funding that’s available to small-dollar funders through vouchers—that there will be strong agreement on the right and the left.
You know, if there is a political party out there who opposes the idea of equal citizens I would love to have that fight. Make my day. Because I know that the American people, when they hear that debate—between one side that says we are equal citizens, we deserve equal political power, and the other side that says no—like [Tom] Perkins of Kleiner Perkins did a year and a half ago when he gave that famous interview where he said everyone should get a vote for every dollar in taxes that they pay. That position was ridiculed, and rightly so, because that is as foreign to America as any idea is. Those were the Tories, the aristocrats, they lost the revolution.
I think we can, we could, unite an incredible number of Americans behind the idea that we need to have fundamental change to bring about the founding idea of this republic of equal citizenship.
And if we begin to talk like that—it begins to make sense of the incredible importance of the Black Lives Matter movement. Because that, too, is a product of us as a republic forgetting the basic commitment to equality that was in our Constitution from the start. I think that is the idea that is generative in this election, that’s the big idea that’s generative. I want to really push as hard as I can to make it really the central idea that at least the Democratic Party talks about.
As I’ve said, I actually hope that a Republican candidate does the same thing. It would be incredibly valuable if a Republican candidate said, yeah, I agree, this system—the way Donald Trump is talking about the way he, as a rich guy, was able to constantly buy politicians—it would be wonderful if a Republican politician were able to say, I’m going to do the same thing Lessig’s doing. We could very quickly get to a place where we know reform is going to happen, where all we’re talking about is how to bring it about, and who the vice president should be—because once reform is happening, that person will be the president.
Bloomberg Politics: Evan Osnos reported in the New Yorker that, with Mayday, you sort of adopted the motto, “Embrace the irony.” Is anything in your exploratory campaign ironic? The work of Mayday was described—at times pejoratively—as performance art. Is this performance art?
Lessig: I don’t think so.
What’s striking about our culture is that there are places where bold experiments are celebrated, and places where bold experiments are scorned. So, the West Coast mentality—that's a place where bold experiments are celebrated. People have all sorts of experiments that fail and it’s kind of like, OK, fail often and fail frequently, so you get to the idea that works. In the East Coast political class, it’s like, “Oh my gosh, you tried something different...and it failed.”
Somebody needs to be a little more self-aware about the way the system works.
You know, what Mayday did was really thicken my skin. Because, fine, people are going to be nasty and critical, and they’re going to try to frame this in as perverse a way as possible. And so what? I accept that, that’s just the nature of the way people get eyeballs to articles. But what this effort does is build on a really important lesson we learned in Mayday.
Let me back up one step: a poll was done at the end of 2013 where 96 percent of American said they thought it important to reduce the influence of money in politics, but 91 percent said they didn’t think it was possible. That combination defines a kind of politics of resignation—because, you know, there’s lots of things we wish could have. But we learn that if we don’t have them, we’re not going to do much about them.
Most of us wish we could fly like Superman. But because most of us are convinced we can’t, we don’t leap off of buildings entirely. If you said to African-Americans in 1900, why aren’t you out there on the street protesting the incredible inequality that you suffer under, the answer would be, because we’re not idiots, right? Because they knew in 1900 that there’s nothing that they could achieve. It was just not possible, in a world where rights were not being defended vigorously by the law, to actually argue for your civil rights. So what we need to do to win on this issue is to give people a vision of how they could actually succeed.
I think the weakness of the Mayday strategy... By starting with a small number of races that were not really linked together, nobody really understood what was happening. People wouldn’t actually believe that something could happen from this. So why even support a candidate, maybe a candidate against your political party? But this is different—because what this is doing is giving people a clear sense of of how there’s really a shot. We really have a shot at building a mandate powerful enough to force Congress to address the issue directly.
Based on the failure in Mayday, I think we learned something that we want to now apply in this race to produce a different, a really critically different result. And we’ll see.
It might be the cynicism is too great, the pessimism that Americans have about politicians is too overwhelming—that there’s no way to get traction for it because of that pessimism and cynicism are realities. And then… that’s too bad for the republic. But my commitment is to do whatever we can to make this work. There are a lot of people doing this the conventional way, and more power to them, I don’t criticize them for that. But what we need is a portfolio of strategies. This is one more strategy in that portfolio that I hope actually has the power to move the dial.
Bloomberg Politics: Have you spoken with President Obama about this?
Lessig: No. He was a friend of mine at Chicago, I was a strong supporter of his, but—his old e-mail doesn’t work anymore, so I haven’t talked to him.
Bloomberg Politics: “His old e-mail doesn't work”—is that a euphemism? Is Obama one of the politicians who has been corrupted?
Lessig: No, I wouldn’t say he’s corrupted at all.
You know, he’s been an amazing president. But in my own view he made a really fundamental mistake by not leveraging his extraordinary mandate to take this issue on.
In 2007 to 2008, he talked about this issue all the time. And then when he got to the White House, he dropped it, he didn’t take any step to change the way campaigns were funded. He didn’t even deliver on the promise to give the Congress a way to deal with presidential public funding.
So that was a mistake, and the consequence of that mistake is that he didn’t have a Congress free to lead. He also had a really vigorously strong partisan Congress against him. But my own view is that that’s in part related to the system we’ve adopted for funding campaigns. So Obama could only do as much as he could do inside the executive branch. And what he did within the executive branch was really incredible!
I have incredible admiration for what he did with Cuba, what he’s done with Iran, what he’s done with the E.P.A. in dealing with climate change as much as he possibly could. I think he’s done enormous work to open up the transparency of the administration. You know, he’s been an amazing president inside the executive branch.
But what we need is a government that can actually legislate in a sensible way. We’re not going to address climate change in a really serious way unless we can get legislation. We need to be able to pass Wall Street reform that doesn’t have to shell out to Wall Street. There’s a million places where we need Congress, and though my focus is: How do we get a Congress that’s actually free to lead?
Bloomberg Politics: Do you want to be the president of the United States?
Lessig: Absolutely. But—you know, I would love to be a president of the United States in the bigger sense, the way one is a permanent president, but that’s not what I’m running for and that’s not what I built my life to do. What I’m running for is the chance to be president for as short of a time as possible, just as long as it would take to get this reform passed, to be a stand-in for this referendum. During that time, I would be president. I don’t want to be ambiguous about that—it’s not like I’m saying I wouldn’t do anything except this. I would be the person who is the president, asking, as a trustee for the people, to get this bill passed. And also a trustee for the vice president—because the expectation is the vice president is going to be president—and so I want to build an administration with what she, or he, might want. But that’s the charge, to be president for as short a time possible
It’s like a bankruptcy judge—they take over, reorganize, and give it back to the management. And that’s what I want to do here: I want to take this over, use the power that I have to force a reorganization, and then give it back to the politicians to run.
Bloomberg Politics: Am I to read into that “she” a hint that Elizabeth Warren has agreed to be your vice president?
Lessig: I have not spoken to Elizabeth Warren about all of this. But I was part of the Run Warren Run campaign, I made an argument very much like this on April 20 at an event organized by MoveOn.