In a cover story of The Nation magazine, Harvard law professor Lawrence Lessig writes, "At the center of our government lies a bankrupt institution: Congress. Not financially bankrupt, at least not yet, but politically bankrupt." He goes on to argue that, "Congress is the core of the problem with American democracy today. In a single line: There will be no change until we change Congress." [includes rush transcript]
President Obama issued a rare rebuke to the Supreme Court during his State of the Union address last month over its decision in the Citizens United case. The Court’s landmark ruling allows corporations to spend unlimited amounts of money to elect and defeat candidates.
PRESIDENT BARACK OBAMA: With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps correct some of these problems.
Well, our next guest believes we have a problem with democracy in this country that reversing this Supreme Court decision alone won’t fix. In a cover story for the latest Nation magazine called "How to Get Our Democracy Back," Harvard Law School Professor Lawrence Lessig warns, quote, "Congress is the core of the problem with American democracy today. In a single line: There will be no change until we change Congress."
Lessig is the co-founder of the nonprofit Change Congress and the director of the Edmond J. Safra Foundation Center for Ethics at Harvard University, joining us now from Boston, Massachusetts.
We welcome you to Democracy Now!, Professor Lessig. How do you change Congress?
Well, the most important thing to do is to change the economy of influence that Congress lives inside. Right now Congress — members of Congress spend an extraordinary amount of their time worrying not so much about what their constituents want, but about how they can make sure that they raise the money they need either to get back into power themselves or to help their party get back into power. Some estimate it’s between 30 and 70 percent for members to spend raising money to get back to Congress.
So, that can’t help but create a kind of dependency, which conflicts with the dependency our framers intended them to have, meaning a dependency on the people. They have a dependency on the fundraisers. So that’s the Fundraising Congress that I think we have got to change, break, if we are going to ever see any reform, either from the right or from the left.
Well, Professor Lessig, in your article, you express deep disappointment in the failure during the first year of the Obama administration to bring real change to Washington or even to address this issue of what you call the “Fundraising Congress.” You say at one point “there is nothing in the current framework of the White House’s plans that is anything more than the strategy of a kinder and gentler, [albeit] certainly more articulate, George W. Bush: buying reform at whatever price the Fundraising Congress demands.” Could you expound on that and the disappointment you felt about President Obama, whom you knew and supported throughout the years?
Right. So, when Obama was running for president, time after time he identified the problem with the way Washington works as the reason he was running for president, to take on that problem of changing that system. As he said, if we don’t take up the fight, we’re never going to get reform that will last and change the kind of problems we’ve been facing generation after generation.
Now, what does that reform? That means changing the way Congress thinks about these problems by changing the economy of influence within which they live. So, that would be the support, for example, of a bill which he co-sponsored when he was senator, the Fair Elections Now Act, which would create small dollar contributions, a voluntary opt-in system for small dollar contributions, where no one, after that bill would be passed, could imagine that the reason Congress was doing what they were doing was because of the money. It might be they’re too stupid, or they’re too liberal, or they’re too conservative, but not because of the money. And that’s the change that’s necessary before people will once again have any faith or trust in this institution.
We’re talking to Lawrence Lessig, who runs an organization now called Change Congress. Just for a moment, Professor Lessig, your major issue was the internet. You then moved on to Congress and corruption and how to get our democracy back. Why did you go from there to here?
Well, what I saw in the context of the issues I was working on for more than a decade, issues around intellectual property, was that though more and more people — parents and teachers and people in the creative industries — were understanding the issues and making progress and thinking about better solutions, there was no change happening in Congress. And it’s not because the arguments were weaker or we weren’t actually expressing them well; it was because the economy of influence of Congress was such that they would think only about the side that was supporting them financially, or they only gave access to the side supporting them financially.
So it became clear. It’s an obvious point. I’m embarrassed it took so long to see it. It became clear that unless we solve that problem, the problem of influence that blocked them from even understanding the other side of the issue, we weren’t going to solve the underlying questions or problems that we face in the context of intellectual property or the internet. Now, you know, those are pretty esoteric questions to most Americans. And the obvious thing that connected and pushed me to do this was recognizing that the same dynamic that was blocking progress in the context of intellectual property or the internet was also blocking progress in the context of global warming, in the context of healthcare, in the context of food safety. And the point is to get people to recognize, to connect the dots, to recognize that it’s each of these issues that’s being blocked for the same underlying reason. And unless we address the underlying problem, unless we fix this broken institution of Congress, we’re not going to make progress on any of those fronts. And so, it seemed to me that it was extraordinarily important not believing that any one person could solve it, but extraordinarily important to begin to push the movement to get this issue solved.
But I guess a key assumption of your analysis is that the Congress is broken compared to a time when it was fixed, or that it’s somehow more corrupt now than it was in the past, when some would argue that this has been historically a problem in the United States, of those with money being able to buy influence in the halls of Congress and in Washington.
Yeah, it’s counterintuitive, because, on the one hand, I think the amount of overt bribery, violations of criminal law by members of Congress, is at the lowest it’s ever been in the history of the United States Congress. I mean, the nineteenth century was a cesspool of that grotesque kind of corruption. And the twentieth century and twenty-first century are obviously much better in that sense.
But the kind of corruption that we’ve got now is not the hidden corruption of people taking brown paper bags of cash; it’s a kind of corruption in the open. It’s openly encouraging people whose interests you are regulating to contribute in a way to effect that regulation. So it’s — nobody hides. Max Baucus doesn’t hide the fact that he receives more than $4 million in money from the interests whom he controls as the most powerful person in the Senate over healthcare. He is open about it. And by encouraging this kind of dynamic, this kind of economy, we make it actually much harder for ordinary people to believe that they have some role to play here.
And in some sense, even if, you know, the souls of members are not more corrupt, even if they’re, as I believe they are, more honest, have a higher level of integrity, this more open kind of corruption is causing problems that are much more dramatic than the problems that would have been caused by the old sort of bad corruption. Right? So if a guy gets $50,000 in a brown paper bag, that’s one thing. But when we have the kind of corruption in the financial services industry, for example, that led to total deregulation of these new instruments and then blew up the economy as that house of cards began to collapse, the consequences of that corruption are much greater than anything we’ve seen in the past.
So I’m not out here to call individuals evil or to call individuals unethical. I think we’ve got to recognize that there’s a difference between the good souls that might be in Congress and the corruption that might influence the whole institution. And it’s that institution that is my focus.
Lawrence Lessig, where were you when you heard the Supreme Court hand down its decision to open the floodgates on corporate money in electoral politics? And what was your reaction?
Well, I was in Cambridge. I was sitting at my desk expecting the decision to come down. It came down, and I read it as quickly as I could, because I had to go catch an airplane. And so, actually, sitting at the airport in San Francisco, I recorded a video to talk to people about how significant this decision was.
And the significance of it, I think, is that it opens the possibility that a problem that’s already bad will get infinitely worse. I mean, this is the thing people need to remember. Lots of people are talking about, how do we overturn Citizens United? But overturning Citizens United or getting back to the day before Citizens United is no solution to the problem. We already had a broken democracy before Citizens United came down. And I’m worried that there’s a lot of distraction around this issue, in Citizens United, because I don’t think the problem is corporate speech. I think the problem is corporate control. I don’t think the problem is lots of different diversity of perspectives or viewpoints in the context of political debate. It’s when that perspective or a particular powerful influence begins to be so powerful that you understand members of Congress are spending their time dancing to the tune that this powerful interest wants, rather than worrying about what their constituents want, because as members need to raise money or need to raise support for their campaigns, this becomes a debilitating distraction.
And it’s that kind of distraction that, I think, accounts for the failure of a whole range of programs that this administration has tried to push. And it would account for the failure even on the right — if people on the right were here, too — because, just as clearly, the status quo Fundraising Congress wants to stop that reform, as well.
Lawrence Lessig, we’re going to break, then come back. Professor at Harvard Law School, co-founder of the nonprofit Change Congress, his cover story in The Nation, "How to Get Our Democracy Back." He’s calling for a constitutional convention. We’ll find out more after break.
AMY GOODMAN: Our guest, Lawrence Lessig, professor at Harvard Law School, co-founder of the nonprofit Change Congress. Juan?
JUAN GONZALEZ: Well, Professor Lessig, you’ve called for the way to effect real reform would be by holding a constitutional convention, by getting the various states to begin pressing for a constitutional convention. But given the enormous power that you say that corporate America already has in American society, aren’t you worried perhaps that such a convention, if it were able to succeed, might end up eliminating the Bill of Rights or taking the convention — the Constitution backwards, instead of forward?
LAWRENCE LESSIG: Well, you have to remember that the convention that the framers imagined in Article 5 of the Constitution only has the power to propose amendments. And any amendment that gets proposed still has to be ratified by three-fourths of the states — so that’s thirty-eight states — meaning any twelve states can block any proposed amendment. Now, there are twelve solid red states, and there are twelve solid blue states. So I don’t think either side has an opportunity to, in some sense, take over the other.
But I think that the critical point about a convention is that it is the only method for constitutional change that Washington itself can’t direct and control. And there’s an enormous amount of energy right now happening in Congress trying to — people talking about entering an amendment through the congressional process. And my view is that that’s both a waste of time, because there’s no sixty-seven votes in the United States Senate to support, for example, an amendment to overturn Citizens United, and also it’s the wrong context for that kind of reform. What Congress needs to be doing right now is passing the citizen-funded election bill, the Larson-Jones bill, to make it so that people can once again believe in how Congress does its work. And we need to begin the long process of constitutional reform through this convention process.
Also, the politics of this are very different. People can have an idea of what’s broken and how to fix it. So some people think we’re going to have to overturn Citizens United. Other people, like I, think that the important thing is to make sure Congress has the power to create its own independence from private interests and dependence upon the people. Some people think the President needs a line-item veto. These are hard questions. They’re not going to be resolved through a tweet or through some online internet poll. What has to happen is there has to be a long conversation across the political spectrum that either first produces the call for a conviction and then, second, in the convention itself.
Now, obviously it’s a long shot, but the one thing we know from history is the only time the United States Congress has ever voluntarily amended the Constitution to reduce its power or make it more directly responsive to the people was in the context of the Seventeenth Amendment, which was inspired largely because a convention movement, that was going to force the same amendment into the states, had grown and become substantial enough that people thought it was a likelihood to happen. So I’m eager for the pressure of a convention, either directly or indirectly, to force the reform that I think that we need to get this democracy back to being a democracy.
AMY GOODMAN: Lawrence Lessig, we want to thank you for being with us, professor of law at Harvard Law School, co-founder of the nonprofit Change Congress. His cover story in The Nation is "How to Get Our Democracy Back."