AMERICAN ENTERPRISE INSTITUTE

CAMPAIGN FINANCE AND THE 2016 ELECTION: REMARKS FROM LAWRENCE LESSIG

INTRODUCTION:

KEVIN A. HASSETT, AEI

REMARKS AND CONVERSATION:

LAWRENCE LESSIG, HARVARD LAW SCHOOL

MODERATOR:

NORMAN J. ORNSTEIN, AEI

12:00 PM – 1:00 PM FRIDAY, NOVEMBER 13, 2015

EVENT PAGE: http://www.aei.org/events/campaign-finance-and-the-2016-election- remarks-from-lawrence-lessig/

TRANSCRIPT PROVIDED BY DC TRANSCRIPTION – WWW.DCTMR.COM

KEVIN HASSETT: Hi. I’m Kevin Hassett, director of economic policy studies here at the American Enterprise Institute. And the title of this event is “Campaign Finance in the 2016 Election: Remarks from Lawrence Lessig.”

Lawrence is an extremely distinguished professor of law at Harvard Law School. He has written widely on a zillion issues, always very thought provoking. He very often might be a little bit further to the left of me, but as someone who has clerked with Posner and Scalia and anticipates every objection I have to his argument before I raise it.

And I was really startled and intrigued to see that Larry decided to run for president in a very unique and thought-provoking way. And he’s become extremely – or has been for many years extremely focused on issues of campaign finance, an issue that from my days on the McCain campaign, something that I’ve been fairly familiar with.

As an economist, I could say that I’ve never written about campaign finance because it’s too difficult an issue for me. The last paper I remember is by Steve Coat (sp), in 2004, where he proved to me that I should take it seriously because campaign finance limits in Coat’s model, which was published in the American Economic Review, can be – (inaudible). They can make everybody better off because you can get into this sort of contest where I have to give money because you’re giving money and so on, and so there’s this negative externality associated with it.

But connecting this sort of general principle that campaign finance reform and campaign finance limits could in principle serve the common good with the real-world functioning of the way our political system works is something that, you know, I’ve not seen economists do, but it’s been a focus of Larry’s inquiry for many years and indeed of his presidential campaign.

And so what we’re going to do today is that Larry is going to make a presentation to us about what he thinks we ought to do to fix our political system in this regard. And our expectation is that those remarks will last until about 12:25 p.m. or 12:30 p.m., at which point, my colleague, Norm Ornstein, will come up and moderate a conversation with Larry. And so I hope you’ll all join me in thanking Larry for coming and welcoming him to AEI. (Applause.)

LAWRENCE LESSIG: Yes. I’m not Kevin. So thank you. It’s really wonderful to be back. I was here about a decade ago I think talking about network neutrality before it was called network neutrality, but I’m glad to be here talking about this.

The first problem – we continue to have technical problems. OK. So no matter what I do, people say that I’m talking about campaign finance reform, and I want to start by saying I don’t want to talk about campaign finance reform.

Instead, I want to talk about something that’s kind of near and dear to the hearts of people here. I want to talk about a fact that we need to find a way as a political culture to acknowledge, and that fact is this – that at the center, at the core of our democracy, there is a hole where the framers intended there to be a Congress; that instead of being a Congress, there is a failed institution crippled and corrupted, incapable of governing. One could say it’s even worse than it looks. And we need to find a way to talk about and address that fundamental problem if we’re going to have any way to think about solving the problems that we as a nation need to solve.

Now, I’ve been for many years pushing the idea that the failure here is tied intimately to the way we’ve allowed money to evolve inside of our political process. In this sense, I’ve said money is a root of the problem. And by that I mean, if we think of cause in a very causian (ph) way, if the cause is the part of the problem that you can actually fix, then money is the cause of this problem.

And today I want to extend that just a bit by saying it’s money-plus, and talk a little bit about what the plus part is, but it’s money and this plus part because this is the part we could actually do something about. And if we did something about it, we could address this crippled and corrupted institution at the core of our democracy.

So I’m going to talk in three parts. I’m going to say, number one, how we should think about how money is working inside of the system; number two, what its effect is; and number three, how it relates to what is the obsession of people here in the beltway to, quote, “polarization” in our political process.

OK. First, how does it work? The idea I want you to understand – I want to create this term and let you use it, and that’s the idea of Tweed-ism – Tweed-ism, which I derive from maybe the most important political philosopher of the 19th century, Boss Tweed, who famously said, quote, “I don’t care who does the electing as long as I get to do the nominating.”

Now what Tweed was evoking in this description of power was a pretty obvious understanding of the way in which this two-stage process would constrain those who move through to election because the dynamic of knowing you need the nomination of someone is enough to make that someone the determinant in how you make your decisions.

This is what I mean by Tweedism (sp): any end stage process where there’s an effective filter because the Tweeds control the critical stage in that process with the consequence that should be obvious of producing a system that’s responsive to these Tweeds and maybe only, right?

So think, for example, about Texas in 1923 when they had a law passed in 1923 which explicitly said, in the Democratic primary only whites could vote so blacks were excluded from that primary, creating this two-stage process, the whites in the first stage and everyone who at least could register in the second stage, with the obvious consequence – we all see this, right? – of producing a democracy responsive to whites only.

Or think about the explosion of protests in Hong Kong that happened literally just a year ago, responding to a law proposed by the Chinese government for the selection of the governor in Hong Kong. This law said the ultimate aim is the selection of a chief executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. That nominating committee was to be 1,200 citizens from Hong Kong, which means, out of about seven million, is about 0.2 percent of Hong Kong. That’s a very tiny number, right? Look, there it is, very, very small. If you think about it relative to the whole population, that’s 0.2 percent. Point zero two percent is the committee that selects the candidates that the rest of Hong Kong gets to vote among.

And what the protesters said is that that committee would be biased, that filter would be biased because the 0.2 percent would be dominated by a pro-Beijing business and political elite with the consequence obviously of producing a democracy responsive to China only.

OK. These examples are pretty obvious. I think there’s not much controversy of that dynamic in those examples. So this is the one I want to focus on.

Think about America today. We take it for granted that campaigns will be privately funded in America. But funding is its own contest. We could say funding is its own primary. It takes time. The academic literature estimates that members of Congress and candidates for Congress spend anywhere between 30 and 70 percent of their time dialing for dollars, calling people to raise the money they need to get back to office or to get their party back into power.

B.F. Skinner gave us this image of the Skinner box, where any stupid animal could learn which buttons it needed to push to get the sustenance it needed. This is a picture of the modern American congressperson. As the modern American Congressperson learns the buttons he or she must push to get the sustenance here she needs to succeed in her or his campaign. It is a process that takes time and it has an effect.

As they do this, they develop a sixth sense, a constant awareness about what they do might affect their ability to raise money, to become, in the words of the “X Files” shape-shifters as they constantly adjust their views in light of what they know will help them to raise money, not in issue one to 10 but on issues 11 to 1,000.

Leslie Byrne, a Democrat from Virginia, describes that when she came to Congress, she was told by a colleague, quote, “always lean to the green.” And, to clarify, she went on, you know, he was not an environmentalist.

So the point is this primary, this is a primary too. It’s a money primary. It’s not the white primary. It’s a green primary. It is the first stage in a multi-stage process that sets a candidate up to be a credible candidate. And if that’s true then, we should think about who the funders here are.

Now, we can think first about the biggest funders. In 2014, the top 100 gave as much as the bottom 4.75 million contributors combined. Or in this election cycle, as the New York Times reported just last month, 158 families have given half the money that’s been contributed to Super PACs and candidates so far. Those are the biggest funders.

But what I want to think about are the relevant funders, the people who give enough, whose contribution is big enough to matter to the candidate as they are dialing for dollars, raising the money they need to fund their campaigns.

So it’s a little arbitrary to think about how big that is. Let’s imagine in 2014 it was $5,200, which was the maximum amount you could give to one candidate in the two cycles. It turns out in 2014, 57,874 Americans gave $5,200, which, for those of you doing the numbers, works out to be 0.2 percent of America – 0.2 percent of America dominating in this first stage of this multi-stage process to select candidates is a tiny fraction of the 1 percent, you could say a Chinese fraction of the 1 percent dominating with the consequence, obviously, of producing a democracy responsive to the funders, and some might say only.

This paper by Michael Barber, which is still in draft but from 2014, looked at the relationship between the preferences, the actual positions of senators and average voters or partisans or donors and found no alignment between the median voter and the position of senators, found some alignment between the party voters and the senators.

But among both Republicans and Democrats, the ideological congruence between senators and the average donor is nearly perfect, or, more dramatically, this Princeton study, which is a Harvard professor I can’t talk about. Let’s put it off the stage quickly. By Ben Gilens – I’m sorry, by Martin Gilens and Ben Page may be the largest empirical study of actual decisions of our government in the history of political science relating those decisions to the views of the economic elites, organized interest groups, and the average voter.

What they found for economic elite is there’s a tight correlation between the percentage of the economic elite who supports something and the probability of that policy actually being enacted. Same thing with interest groups – as the number of groups supporting something go up, the probability of that thing being enacted goes up.

But here’s a graph of the average voter. It is a flat line, literally and figuratively as they describe in the – in English, when the preferences of the economic elites and the stands of organized interest groups are controlled for, the preferences of the average American appear to have only a miniscule, near zero, statistically non-significant impact on public policy, right?

So here’s the picture that we have, this kind of crude picture of what democracy is supposed to be. There we are, the citizens driving the bus. The reality, these data suggest, is that the steering wheel has become removed from the bus. There is no steering here. And I want to say we should understand this as the predictable, obvious consequence of allowing a structure of Tweedism to evolve in the way we fund campaigns, OK. So that’s how to understand it.

But what’s its effect? You know, if you listen to Bernie talk about this, you’d think its effect is to give the billionaires control over what our government does, as if “the billionaires” describes a consistent, coherent interest group. But I think that’s to misunderstand the consequence of this dynamic.

I think the better way to understand it is as a vetocracy, or vetocracy, right? Francis Fukuyama, in his latest book, puts it in this way. He says, you know, we don’t have a democracy in America. We don’t have an aristocracy. We don’t have a plutocracy. We don’t even have a kleptocracy.

We have a vetocracy in the sense that it is trivially simple now for any change to be blocked either on the left or the right because of the way we’ve allowed this instability to develop on top of a checks-and-balances constitution which is already ripe for stalemate.

We have allowed a system of funding to evolve into this process that makes it trivially easy to block change because in a system with a tiny number of funders with extraordinary impact in the funding system, what that means is an even tinier number, really tiny, tiny number has the capacity to block reform whether that reform comes from the left or the right.

The only winner in this system is the status quo. And the status quo, of course is valuable to some, but it’s not what either people in the principled right or people in the principled left are pushing. That’s the consequence of a vetocracy.

This is not a conspiracy. There’s no master plan here. It would be better if this were an aristocracy because at least the policies would be driven by a consistent view of an aristocratic view of what the government should do.

The model, the metaphor for our government is more vultures feeding on the carcass of a gazelle, right? There is no consistency. There is just an effort by everyone to get as much as they can out of this crippled and corrupted system.

OK. And so how does that relate to the obsession of people here in Washington to polarization? OK. Now, of course, it’s true that we are at a – we are more polarized today in Congress than we’ve been in any time in our history since as far back as we can measure the Civil War.

But the question we need to think about when we think about polarization is how would you remedy that polarization? And, again, I insist on the kosian (ph) frame, if the cause is a thing we can fix, what’s the part of the cause to polarization that we can actually do something about? Like there’s a part we couldn’t do something about, like we could eliminate the Democrats from Washington or we could eliminate the Republicans from Washington. That would take care of polarization pretty simply. But that’s not a feasible solution.

So what’s the part we could do something about? I’m going to suggest that polarization here is caused – where is a function of both the money and the rules Congress has adopted for selecting itself.

So first, the money. There are three parts to this. We can think, first of all, the psychology of fundraising. In a world where we’ve moved from Congress running for Congress maybe six or nine months out of every two-year cycle to a world where Congress is running for Congress 24/7 from one election to another, and they’re engaged in the business of raising money to run for Congress from one election to the next, the very act of raising money seeds in the institution a resistance to working together.

Chris Murphy, at an event in New Haven, described how when his office sent out e-mails that praised the work of the Democrats – he’s, of course, the youngest member of the Senate, a Democrat, it raised the – the e-mails supporting the work of the Democrats raised half as much or we should say the e-mails attacking the Republicans raised twice as much as the e-mails supporting what the Democrats were doing.

But the natural incentive was to be as vicious to the other side as possible so as to raise the most money that you can in the context of this perpetual fundraising claim or Joe Manchin describes, quote, “the money has infiltrated and driven us apart,” explicitly pointing to the way that he feels the experience of fundraising as an experience that makes it harder for him as a senator to actually act with people on the other side, number one.

Number two, there is a dynamic of outside funding. So this really interesting paper, McCarty’s paper – (inaudible) – McCarty and Shore (ph), describes this dynamic they’ve studied in state how polarization has increased. And the dynamic that you can see as they tie polarization very highly to inequality is that Republican money comes in, it eliminates the moderate Democrats leaving the only Democrats as liberal Democrats and the Republicans because supported by outside money as more far to the right. That exacerbates the polarization. That increases inequality as it increases inequality that drives the polarization even more.

This model is I think the first time we’ve seen this nice effort to link the polarization to the way in which money has infiltrated. And we can see at the federal level this would suggest a similar dynamic driving that polarization, too.

And then, number three, the dominance of Super PACs increasingly at the federal level because, of course, what Super PACs are is systematically more extreme than the influence they replaced, which is the political parties.

So the Super PACs, to the extent candidates increasingly bend over backwards to make sure the Super PACs are happy with them, they are bending over backwards to make sure the Super PACs are happy with them by being more extreme in the way that they behave inside of Congress.

These are three ways in which the way we raise and fund campaigns has an effect to drive people more to the extreme.

But the second part and a part which, in my own effort to raise these issues in the presidential campaign, I tried to raise but almost found no ability for people to even hear the point, is the very rules Congress adopts for selecting itself, right?

Congress is a first-past-the-post gerrymandered system – Congress, I mean, the House of Representatives. So first-past-the-post gerrymandered system is the – is a system which produces a House of Representatives that is more polarized than the United States is. What political scientists have shown us is that the actual attitudes of Americans have not polarized over the last 40 years. What’s happened is they self-sorted into more polarized regions, but the mode by which we select Congress amplifies that polarization.

And so if we have 90 seats – 538, I think that’s too high – but if there are 90 seats that are competitive in the House of Representatives today, what that means is that there are 89 million Americans who live in districts where their views don’t matter because they represent a political party that could have no effect on the outcome of the election in those districts. And what that means is the congressmen in those districts are focused exclusively on what the more extreme people in their districts care about, because that’s the only potential threat.

Now, the part people don’t recognize, it’s a little startling that this is true, but the part they don’t recognize is that Congress could change those rules tomorrow. We have a conception of districting, which is that’s it’s an exclusive province of the state. But, of course, the Constitution explicitly gives Congress the power to craft the rules for how Congress is selected. And, historically, Congress has changed the rules by which it’s selected many times. Originally, Congress was a multi-member body where districts were multi-member districts. And, in a multi-member system, at least with rank choice voting, you could get a much more representative body than you get in a first-past-the-post political gerrymandering. OK. That’s how it relates.

Let me just then talk briefly about this objective of reform. This is the problem in my view, not campaign finance. The problem is we don’t have a representative democracy. If we had a representative democracy, if powerful interests didn’t have such extraordinary leverage inside the system, I think the government could actually function not great. Nobody’s talking utopia, but it could actually function better. It can actually do something. It has in the past done something, right?

So the point is we’ve allowed this inequality to evolve in the system so systematically that it has led to this place where the institutions cannot function. But what that begs for is an answer to the question, how do we solve it? Like what is the mechanism that could solve it?

Now, my view is technically it’s not hard to describe what a solution to this would be. Technically, what would solve it turns out 90 percent of the problem I think can be solved by statute. I described in the campaign a Citizen Equality Act that had three parts, number one citizen-funded campaigns so this would bottom up public funding, merging together John Sarbanes’ Governed by the People Act, and the American Anti-Corruption Act. These are different ways to facilitate increasing the number of people funding campaigns to dilute the concentrated funding mechanism we have right now, making funding itself more representative.

Number two, equal representation adopting the views of Fair Vote, and Michael Golden’s really powerful book “Unlock Congress” about how we could restructure the rules for how Congress was selected so as to create a more representative body. This would be through multi-member districts and rank choice voting producing effectively proportional representation. And proportional representation would not be the polarized mess that the House of Representatives is now.

And number three, changes to make an equal freedom to vote, to remove the barriers that basically make it harder for some people to vote than for others and to adopt Bernie’s idea of moving voting to a place when everybody could more easily vote. These three changes would affect a fundamental change and achieve a representative democracy.

So, conceptually, it’s not hard to see what would have to happen. The hard thing is politically who or what entity in our political system could bring these changes about. Right?

So it obviously can’t be the court, even if the court got it better on issues like Citizens United. That doesn’t solve the problem. The court can’t mandate citizen-funded elected.

It’s pretty clear it’s not going to be Congress. The last institution in the world that would fix itself in the middle of this mess is Congress. This is a point that George Mason recognized in the Constitutional Convention, when they recognized two days before the constitution was about to be published that the only body with the power to propose amendments to the constitution was Congress. Mason stood up and said, wait a minute. What if Congress is the problem? He said, no amendments of the proper kind would ever be obtained by the people if a government should become oppressive. It was that point that led to the obvious response to create the power to call a convention so that there was a way around Congress if Congress became the problem. But, of course, in our political culture, the idea of calling a convention terrifies most people so I don’t think we’re going to see an Article Five convention.

And then the question is, well, what about the president? Shouldn’t the president be in a position to be able to lead to this kind of reform?

And my view is that an ordinary president, meaning one who gets elected in the ordinary way, by promising the moon on 17 different issues could never bring about this reform because the ordinary president would be told the first moment he or she walks into the Oval Office that if he or she took on Congress, then he or she would be a single- term president at most, right, because if you took – if you wanted to solve this problem, you’re taking on your own party as well as the other party.

And if you take on your party as well as the other party, even if you had a hope to get something like this passed, you’re not going to get anything else passed, so it doesn’t fit the business model of an ordinary president, which is why I think you see Barack Obama spend most of the 2007, 2008 campaign talking about, quote, “Taking up the fight to change the way Washington works because if we don’t, then real change, change that will have a lasting difference in the lives of ordinary Americans will keep getting blocked by the defenders of the status quo.” That was, quote, unquote. He said that over and over and over again but not once did he propose – even propose changes that would address the problem he’d identified.

That led me to think, well, we need something like a referendum, right, a referendum meaning recognizing the deep support there is among the public for radical change of the way their government works. Congress is most of its time bouncing around single-digit approved institution. Most Americans have a strong view about the corruption of the way money funds campaigns.

So if there were a way to affect a referendum, this might be the power necessary to produce the mandate to force change. We don’t have a referendum at the federal level. I’m kind of happy for that, but we don’t. That led me to think, well, maybe there’s a way to have a campaign as a president for a referendum. Let’s make this as the objective of the administration. That didn’t seem to work so well.

But here’s the – here’s the question I want to leave you with, right, because it’s not enough to observe the things that won’t work. The question is what could work. Do we have anything in our political arsenal, in the tool-bag of politics that we have right now that could actually bring about a change to address this, which I think is the fundamental problem with American democracy today, evoking the famous words of John Snow from Game of Thrones: “You’re right. It’s a bad plan. What’s your plan?”

OK. Thank you very much. (Applause.)

NORMAN ORNSTEIN: So anybody who’s ever seen Larry present before or seen his TED Talk would know that we were in for a treat of an extraordinary and compelling presentation in a whole host of ways. I don’t want to spend a lot of time on the abort of presidential campaign but a couple of minutes’ worth, especially as you talked about the end.

A whole lot of people in the political science and legal communities were pretty hostile to you. And so just to quote a few, Jonathan Bernstein called it a self-defeating crusade. John K. Anderson: Lessig is wasting our time. My colleague and friend Tom Mann, dumbing down our politics. Seth Masket: Larry Lessig is wrong about the presidency. And also said the presidential candidate has cited John Snow of Game of Thrones as an inspiration but we all know how that storyline ended.

MR. LESSIG: We don’t know. We don’t know yet.

MR. ORNSTEIN: So take a minute or two and answer your critics.

MR. LESSIG: Yeah, only a minute or two because I really want to focus on the underlying issue.

MR. ORNSTEIN: Yes. Yes.

MR. LESSIG: Look, when I decided to get into this race, it was clear no one else was going to make this issue fundamental. They all had checked off the right boxes. I was convinced they all were going to say what the right answer is but they weren’t going to help America understand why this had to be a fundamental issue addressed first in order to make anything else that they’re talking about credible.

So at the time I made a decision to at least run the fundraising test. I said, we have – if we raised $1 million in 30 days, I would run. The Democratic Party had said, if you get 1 percent in three polls six weeks before the debate, you’ll be in the debates.

And so, you know, the reasoning was, look, if I can be in the debates, there’s a way to make this issue central, and if this issue gets made central, then who knows what happens. I mean, I wasn’t doing this just to be in the debates, but the point is the chance to be in the debates was reason enough to suffer the personal cost and the inevitable scorn and the – you know, the hatred and the whatever else came with it. So that’s the gamble we took.

Now, you know, I started as a Harvard law professor with funny glasses. You know, the most famous picture of me has me wearing a bow tie. My first name is Lester. So, you know, Barack Obama used to say, the idea that a guy – a black man with the name Hussein could become president was, you know, crazy. I would have taken those odds much more for my own odds.

But, you know, our race was, could we get to the 1 percent to qualify for the debates? And we didn’t get to the 1 percent for the first debate, partly to do with the fact that the polls didn’t include my name. Politico ran a piece that said, you know, they did the numbers. If they in fact had included my name, I would have qualified, but OK.

But, by the second debate, we were qualifying. You know, Monmouth had me 1 percent, NBC had me at 1 percent, Quinnipiac had me at 1 percent. And the weekends before I announced that I was stepping aside, the Democratic Party reached out to my campaign manager and said, actually, the rule is not three polls finding out at 1 percent within six weeks of the debate. It’s three polls finding you at 1 percent at least six weeks before the debate. And we were like, wait a minute, that’s totally not what the rule said, because we could point to Chairman Wasserman Schultz’s words. And they said, well, that’s the rule now. So we raised holy hell about that. And then CBS announced five days later what their rule was going to be. And their rule was you had to get greater than 1 percent.

In a five-week period, they defined before the debate, which was defined to exclude the third of the polls, I mean, literally, the cut-off period was two hours before the third of the polls finding me at 1 percent was released. So somebody said, this is Larry-mandering (sp) that they’re engaging in here. And so the consequence was I couldn’t be in the debates, and so if I wouldn’t be in the debates, then there’s no reason to continue to campaign. I couldn’t afford to continue to campaign. So we stopped the campaign.

So from our perspective, starting at the beginning, here was a gamble to get into the debates to at least have a chance to force those Democrats to acknowledge this critical need upfront and who knows how that unpacks after that. This seemed to be – make be the right gamble to make. And we go pretty close. Had the rules not been changed, I wouldn’t be here. I’d be in Iowa today.

MR. ORNSTEIN: So the last time you tried Mayday PAC, the first effort at turning this system around, which was extraordinarily successful in raising huge sums of money, creating your own, in effect, Super PAC, and then trying to intervene in campaigns on the basis of whether candidates supported fundamental reform or not. That didn’t work. This one didn’t work. So let’s talk about what’s the next plan.

And what I want to ask you is, the other day we actually had some stunning successes. In Maine, you had a referendum that dramatically expanded the amount of money available for their clean money system, which, in effect, enables candidates to opt in by limiting the amount of private money they take very severely to a pot of public money.

And even more stunning, in Seattle, you had a referendum to create for the first time really an experiment with an idea that’s been around for a while. Bruce Ackerman and others have promoted it. Many of the people we know of supported it, of Patriot Dollars. So in Seattle now, every citizen is going to get four vouchers of $25 that they can use to give to candidates of their choice.

Is the next plan to go to a state-by-state action with the hope that that can work or do you have something else in mind?

MR. LESSIG: Well, my view has always been – you know, there are many people in this reform business. And there’s a portfolio of strategies. And I think all these strategies – we’ve got to try all these strategies. And I’ve supported – you know, I went to Maine. I spoke in Maine about the Maine thing. I went to Seattle. I spoke – helped them talk about how to develop the Seattle voucher plan. I think all of these are fantastic.

MR. LESSIG: What I was trying to add to this mix of portfolios were strategies that could begin to rally people at the federal level. Because, of course, what’s striking at the federal level is that, you know, on the first Democratic debate, the word public funding of elections was not mentioned once – was not mentioned once. So the only thing that could matter at the federal level that Congress could do tomorrow is an issue that nobody wants to talk about.

What they talk about is Citizens United, we’re going to amend the Constitution. But you know as well as any of us know – I mean, that’s just cheap talk. I mean, you can say that. You can make yourself seem like you’re a supporter of reform, but there is no chance, no chance in hell that that Congress is going to propose by two-thirds an amendment to the Constitution to deal with Citizens United. So they only thing that they want to – that they will talk about is something that can’t happen and wouldn’t even work, wouldn’t even change the fundamental problem if it did happen. Which is why I’ve been thinking about how to raise the issue at the federal level in a really sharp way.

And yeah, it hasn’t worked in the sense of it succeeding, but I guess what I want to think about is what strategies can continue to create pressure and push at this level.

MR. ORNSTEIN: So let me raise one possibility with you. I’ve now done a couple of forums in the last two months with John Pudner, who is a conservative political consultant who ran Dave Brat’s Tea Party campaign that unseated Eric Cantor; with Jay Cost, who’s downstairs at the Weekly Standard, and a fairly prominent conservative political scientist, talking about their feeling of repugnance about the big money and big donors who are dominating politics. Pudner is actively promoting a tax credit for small contributions, something we had at the federal level until it was it was taken out in 1986, something we see in a number of states like Minnesota and seems to work pretty well.

Cost said that he could even see entertaining the five- or six-to-one match of small donors. Do you see any possibility of a broader outside alliance?

MR. LESSIG: Yeah.

MR. ORNSTEIN: And, of course, we also have Donald Trump of all people basically, running on a campaign finance reform platform, saying I’m not beholden to those big interests, I’m beholden to my own big interest. But I’ve been there, I’ve bought and sold them, and that’s what the other candidates are trying to do in a way that would resonate with your presentation.

MR. LESSIG: Yeah. I have, from the very beginning, been working to talk about this in a way that should appeal across to everybody. I’ve been working with John Pudner. John Pudner is, I think, an incredible leader. He’s like from central casting for a conservative grassroots movement leader, but he genuinely believes in the need for this kind of change. In the revision to my book, “Republic Lost,” which just came out during the campaign so I couldn’t really promote it, but just came out in the end of October, I draw on Jay Cost’s work and Peter Schweizer’s work, and work of many people on the conservative side who I think just use different words to talk about the same problem. I think this is a genuinely cross-partisan problem. And if we can get people to be able to work together on it, I think we have enormous potential to do something about it. But that is very difficult.

You know, Mayday was started by Mark McKinnon, Republican strategist, and I. And it was incredibly difficult to actually execute in a cross-partisan way. So when we went into New Hampshire and we supported a very far right candidate in the New Hampshire Republican primary, who was running against Scott Brown, the only guy running for Senate in the nation in the Republican Party who talked about public funding of elections, we were vilified by the liberals in our group. They were like, oh, my God, how could you support this conservative? It’s outrageous. Look at his views on immigration. And our point was, look, we’ve got to find a way to work with people who we disagree with in lots of ways if we’re going to have the chance to actually bring about this. But the business model of organizing – I mean, this is something I’m sure your group as confronted with – AEI and Brookings, the same – the business model of organizing is against the idea of trying to find a way to work together with people from different sites.

Like, you know, you can see the cost to your list. We would do this in Rootstrikers. We would send out an email praising something the Tea Party did. When the Tea Party was supporting the abolition of earmarks in Congress and supporting keeping the Ethics Commission – Committee alive, we would send out emails to our list, saying this is fantastic. This is exactly what we need. We’d get a – the biggest drop off in our list of anything when we would do something like that. Because people are so fixed on partisan frame to Washington that it’s incredibly hard to mobilize people outside of it. And that is, I think, the biggest challenge to figuring out how to build a movement that could actually, you know, achieve something to get Congress to change.

MR. ORNSTEIN: So let me – one of the things that you said it was underscored for me in a piece just out by Ken Vogel, who writes about campaign reform, which was basically that Joni Ernst was an unknown state legislator in Iowa, a struggling campaign, and one day got a call out of the blue asking her if she would come and meet with Koch Brothers and a number of others. And they then got behind the campaign, moved her from nowhere to actually nomination, and then becoming a senator. And the larger point of this piece was that they were now actively moving in to recruit Republican candidates in primaries and not just ones who fit a particular libertarian philosophy, but ones who also had views that would protect the set of business interests that they and their backers support. And now, they’ve begun this process of having people out to be interviewed at gatherings at Dana Point, and they’re creating a parallel party structure: voter lists in the most sophisticated way.

If I were Reince Priebus, I’d be scared to death of this because in effect, we’re moving away from political parties run by those invested in a party to parallel structure, at least on one side, that is not invested in a party but is invested in a set of interests. Talk a little bit about that.

MR. LESSIG: I completely agree. Remember, in the three points that I made about the way in which money exacerbates polarization, the third of them was Super PAC effect. Super PAC effect is exactly what you’re describing. And I, you know, it might be that the Republicans have been quicker to adopt this, but the Democrats are going to do exactly the same. I mean, it’s the only way to survive. And as that happens, it destroys the capacity of the parties to be some kind of leavening influence inside of this political system, which, again, reinforces the inability of that institution to actually function.

So again, the core problem that I think we have to find a way to solve is how to solve the institutional problem of Congress. And so long as that influence exists, it’s going to be even harder to do that.

MR. ORNSTEIN: So what we see in the courts, in the Supreme Court, at least, is a movement inexorably towards basically saying, well, gee, now the parties are getting weaker, so what we need to do is to open them up even more to unlimited contributions, and then let those unlimited contributions go in an unlimited way to candidates. I want you to talk about that for a minute, but also have you ever talked to Nino Scalia about this issue? Because no one would be more on the other side, based on what he has said and written in his rulings than Scalia.

MR. LESSIG: So yes, I’ve talked to Scalia, but no, I’m not going to say what I said or what he said about this. But I think, you know –

MR. ORNSTEIN: Let me just ask, was there anything surprising to anybody who knows –

MR. LESSIG: Yeah, absolutely, yeah, absolutely.

MR. ORNSTEIN: OK. OK.

MR. LESSIG: You know, there is a – there’s such an obvious hole in the arguments that have been made to the Supreme Court about how to think about this problem of money and politics. Right, the lawyers arguing these cases at the Supreme Court have constantly tried to say, this is really corruption or the appearance of corruption, quid pro quo corruption, when you imagine people giving $1,000 to every single member who’s running in the Democratic Party for Congress.

And the court is so resistant to seeing that as corruption because they don’t see the quid pro quo corruption. But if you go back to the Framers and you ask, what did they Framers think corruption was, the Framers plainly understood quid pro quo corruption, but they were obsessed with institutional corruption. They were obsessed with the corruption of an institution as a whole.

When they said parliament was corrupt, they weren’t saying members of parliament were taking bribes. Maybe they were, maybe they weren’t. The corruption of parliament was that the king, through the rotten boroughs, basically controlled members of parliament, and that meant that there wasn’t a proper separation, a proper independence from the king. That’s what they meant by corruption.

Now, that applied to our current system, especially when you think about Super PACs, should yield the conclusion that Super PACs create a corruption of the political process, not because anybody imagines quid pro quo is going on – Menendez notwithstanding – but because an institution where members are bending over backwards to focus on what this tiny fraction care about, 158 families, is an institution which is not, as the Framers said that it would be, dependent on the people alone, right? Instead, they’re dependent on the people and dependent on this other influence, which is inconsistent with the dependence on the people. In that sense, it is a corrupted institution; not corrupted in the criminal sense, but corrupted in the way the Framers would have understood it.

I think, you know, and their case is now working the way up to frame it like this, I think when the Supreme Court gets that case and has the chance to say, Super PACs are not mandated by the Constitution, they will rule that Speechnow was wrong. They don’t have to reverse Citizens United to do that, and they will strike down Super PACs, and that’ll be the great opportunity to solve that problem.

MR. ORNSTEIN: So just to follow up for one second that. Thinking about what could happen in the court ahead if there’s a different court and if a case comes forward, one of the things that disturb me about the original campaign finance ruling in Buckley v. Valeo was it all focused around the rationale of corruption or the appearance of corruption which is not the only set of issues here, as you’ve suggested.

I have thought that using the Republican form of government, which is built into the Constitution, is a much better way to go. If we have a republic, then the way money operates is in effect moving us away from exactly what you’re saying.

MR. LESSIG: Well, that’s right, although jurisprudentially I think it’s going to be easier for the court to understand a different conception of corruption informed by the Republican Guarantee Clause, a different conception of corruption that would allow them to see why these systemic influences are corrupting of the institution even if you don’t believe it’s actually individuals engaging in criminal actions. And that’s going to be the door through which they can allow Congress to limit this outside influence.

MR. ORNSTEIN: OK. So we have a little bit of time for interaction with the audience. We have a microphone here that Heather has and we’ll start over here. And you need to speak into the microphone, but first identify yourself.

Q: OK, my name is David Chupak. I’m unaffiliated. First of all, to counter all that negative press, thank you very, very much for running that campaign. I think it was phenomenal and you’re the only candidate I’ve ever donated to. (Laughter.) So if the federal government is essentially a vetocracy and it’s ineffective at lawmaking, why are we still focusing on the federal level? Why don’t we just let the Congress do nothing and focus on lawmaking at the state and local levels, where more radical change happens regularly?

MR. LESSIG: Yeah, great question. I’ve spent a lot of time recently in the state legislatures because I’ve been part of the Article 5 convention movement. And I won’t say this of legislatures like New York or Illinois or even California, but small-state legislatures are enormously rich institutions, I mean, democratically rich institutions. I mean, it’s incredibly heartening to watch, you know, the Vermont legislature or the Delaware legislature work through a problem. And so I have all sorts of faith in what the states can do. But the problem is there’s a reason for the federal government, right? There’re certain things which we need to deal with at a national level.

Climate change is something we need to deal with at a national level. Ratcheting down defense spending, in my view, is something we need to do at the federal level, right? So there’s things that we have to do at the federal level. So I’m totally willing to say if the federal government continues to fail to act, then let’s do whatever we can by bringing states together to do something about it. But that’s not an excuse not to say, let’s find a way to make it, so that the federal government can act once again.

MR. ORNSTEIN: Over here. Hang on a second.

Q: Thank you. Hi. My name is Ariel Cohen. I’m a reporter with the Washington Examiner. I was wondering, you were saying that the DNC rules and the CBS rules kind of shut you out of the debate a bit there. But I’m wondering what you think about how the debates now are almost sort of shutting out the viewer by holding them at such strange times and making the candidates sort of inaccessible.

MR. LESSIG: Yeah, I mean, you know, all but one Democratic candidate for president complained about that feature of the debate rules. And it’s not hard to understand why that feature of the debate rules was built into the debate rules. And so I joined with them in saying that that’s a mistake, too. As a Democrat who believes that the views of the Democratic Party need to be better understood by the public in general, it makes – I’m frustrated by basically being a perpetual Republican debate every single week on television and there’re being no Democratic debate out there. So I agree with that criticism as well. But you know, the point I’m making is it – I guess it was – I guess I’m the last naïve guy in the room. I never would have believed that that game would have been played that way, you know, with respect to the goalpost moving. I just never would have believed it.

People said to me they’ll do it. And I said, they say they won’t, so they won’t, right? But that just shows how dumb I am, right? But that part, you know, it’s striking, nobody said anything about, not one of them.

Q: And then also, one more question if you don’t mind. You talked about Bernie Sanders not – maybe not going far enough on the campaign finance issue. Is there a Democratic candidate that you’re supporting at this point?

MR. LESSIG: No. And I wouldn’t say he hasn’t gone far enough, right? This has been – a point has been so hard for me to make this clear. And I – you know, the experience of being a teacher and reading exams is a constant experience of realizing how bad you are at communicating, right? So – (laughter) – it’s not that they don’t have the right policies in the sense that they’ve checked off the right boxes. It’s that they don’t have the right priority. They haven’t said, look, unless we get this changed, everything else we’re talking about is just a joke, right? I mean, you can’t begin to imagine taking on Wall Street, breaking up the banks, as they all talk about doing, so long as Wall Street and finance is the number one contributor to congressional campaigns. It’s just not even plausible.

When the Wall Street – when the New York Times reviewed the health care proposals of the Democratic candidates, and you know, talked about Bernie’s single- payer health care, he got a single sentence. Why? Because the New York Times treated it as so obvious that that was just a non-starter. And why was it a non-starter? Because the industry interests were just so absolutely compelling and understanding why nothing would ever happen with this.

Well, if you’re Bernie Sanders and talking about single-payer health care, I mean – Tom’s here, so I’m not saying I’m supporting single-payer health care, but I’m saying if you believe in single-payer health care, then what you’ve got to say is there’s not a chance in hell that we would even have a fair fight about that question so long as we continue to have a system funded in the way the system is funded. So it’s the priority that they have failed to execute. Now, I’d love to see somebody pick it up, but so far none of them have picked it up.

MR. ORNSTEIN: We ought to note that in Colorado, they’ve just had a referendum that actually enables them to –

MR. LESSIG: Yes.

MR. ORNSTEIN: – turn to a single-payer health system as an alternative to ObamaCare. So there are outlets in the states.

MR. LESSIG: Again –

MR. ORNSTEIN: Question here.

Q: Thank you. Hi. My name is Dania Korkor and I’m with FairVote. Thank you for the shout-out there. So as you know, our plan is the Ranked Choice Voting Act. So it’s three components, so multimember districts, ranked-choice voting, and independent redistricting commissions. So I really – we really, really appreciate you bringing a spotlight to these issues because, like you said, just raising the issue is really helpful and is going to make progress. But can you talk a bit more about specifically how ranked- choice voting can help minimize money in politics? We’ve actually just talked about it at our table and I thought it’d be interesting for you to talk a bit more about. And there’s a potential example of it happening in Maine next year. There’s a ballot initiative for using ranked-choice voting statewide. So how – what do you think the benefits of that would be and how would that work?

MR. LESSIG: Yes, so I’m – what I was trying to do today was to suggest two sources to the particular pathology of the House. Obviously, we can’t talk about redistricting in the Senate context, but just in the House. And one source was the way money steered their focus. And the other source was the way we’ve amplified the polarization through the particular mode that we’ve selected.

Now, my view has been that we shouldn’t adopt reforms to the redistricting solution until we’ve changed the way campaigns are funded. Because if you go from a world where 90 seats are competitive to a world where 435 seats are competitive, you’ve just radically increased the cost of campaigns. But if you don’t find a way to solve the problem of funding campaigns without turning to the billionaires, then you’ve just exacerbated the problem of the corruption that I was talking about before.

So that’s the relationship that I’ve been talking about so far, but I actually – I don’t know that I have an answer to the question of if you had ranked-choice voting how would that change the gambit for how campaigns are funded. One point that people who push the idea of an independent presidential candidacy emphasize quite strongly is that the dynamics of negative campaigning change dramatically if there’s more than two candidates in the race. So if there’re two candidates in the race, that race – that’s – that drives towards negative campaigning. But if there’re more than two, it makes it harder for negative campaigning to happen. And maybe that would be a dampening effect on the desire to be spending money in that particular way.

But I don’t think we’ve – I’ve not seen literature that actually helps us understand that dynamic much. And part of the reason, though, and this is why I’ve become such big fan of FairVote, part of the reason I don’t think we’ve had that literature is that there’s such ignorance about the problem, right? Everybody – I was on a television show where I was being yelled at by a Democratic consultant who said I didn’t know anything because obviously states have to do the redistricting and there’s no way that the federal government could have any role in this. And I’m like, no, actually, the federal government, from the beginning, has set – no, no, no, you don’t know what you’re talking about. You’re a copyright professor. And I’m like, you know, actually, I’ve never taught copyright. I’ve only ever taught constitutional law and I know something about this. But nobody else – it’s amazing, nobody has this understanding.

And if we could just raise the awareness, the Congress could solve its own problem and then begin to have, you know, a lot of academic work to begin to think about what that game looked like, I think we’d strengthen the position that Congress ought to solve that problem.

MR. ORNSTEIN: We have a question here from Jessica and then we’ll take two more, one here and one here, and that will do it.

Q: Thank you, Norm. Jessica Mathews from the Carnegie Endowment for International Peace. One of the things you said that made me sit up straight was that the actual attitudes of Americans as opposed to their elected representatives have not become more polarized over the last 40 years. I assume that the research that you’re – you know, the research is good, but it stunned me because it sure feels like they’ve become more – so is the kind – is what I’m feeling simply that more Americans have given up on expecting their national government to perform and that’s what we’re feeling? Or why does it look so polarized? Why – could the Tea Party have come into being, 40 years ago? I doubt it.

MR. LESSIG: Yeah. So the data’s pretty – I mean, these facts are pretty well established. Number one, actual attitudes of just polling all Americans haven’t changed, but what has changed is the way Americans have sorted themselves. So we’ve sorted into much more polarizing districts. And as we’ve sorted in polarizing districts, that’s what created this opportunity for much more polarized Congress. Congress is way single- member, first-past-the-post, gerrymandered districts create more polarized House than actually reflects the people.

But the other dynamic that we have to account for here is the change in the media, right? So we’ve gone from a business model of media, which was basically centrist – like when there were three networks, they were basically centrist networks, and lots of reasons to criticize that, but that’s basically what they were – to a media where the business model is polarizing, right? So CNN loses because it’s not FOX-ish or it’s not MSNBC-ish, right? So the natural push is to become more polarizing.

Now, that might make business sense, and I’m not criticizing it from a – you know, I’m not criticizing, I’m just saying the reality is we have a media culture that reinforces the perception of this polarized fact. And we have a Congress that plays into the hands of the perception of this polarizing reality. And those things together make it feel like America is, you know, we’re aliens, depending on which state we come from.

Q: Isn’t it hard to believe that a steady diet of polarizing media does not have the effect of polarizing people who are listening to them?

MR. LESSIG: It is hard to believe, but in fact, what we know from the – you know, the Pew studies that have tried to measure this is that we’ve not seen the change in the attitudes that you would fear in exactly that way. And another reason for this, you know, the most dramatic fact about Americans in politics is it is actually a tiny slice of America, the political active classes in America who are polarized. The non-politically active, either through ignorance or just because they’re more moderate, are not polarized in this way.

And so again, the media, you know, the MSNBC, the FOX are talking to this tiny polarized politically active class, as opposed to Americans in general, which is why you don’t see the dynamic which you’ve hypothesized actually manifesting itself from the data.

MR. ORNSTEIN: We’ll take a question here. While Heather’s coming up, I’d take a little issue with you there. If you look in really more detail at what the Pew 2014 study said, what Alan Abramowitz’s work says, we are seeing more people who are developing a more coherent and polarizing ideology. But the big factor is we’re tribalizing. And the motivation that most people have is a negative one. They’re voting against a party. And that, rather than for their own and what they believe in. That’s a very dangerous phenomenon.

MR. LESSIG: Let’s be very clear. I’m not denying that I would predict with you the more we see this, the worse it’s going to get. I’m just saying that I don’t think the data’s there to support the idea that we are as polarized as a people as our institutions make it seem that we are.

MR. ORNSTEIN: Certainly not at the mass level, compared to the elite.

Right behind you. Then, we’ll take a last question here. Yes.

Q: Thank you. My name’s Lee Yang (sp.) I think you really want to emphasize some influence on money, whether it comes from Koch or coming from the Super PAC, so the reason some candidates can be elected not because people vote for them, because probably a high percentage of people are nonvoters. So it’s just a means those people are really manipulated or with some influence or whether favorite or unfavorite for them to be able to join the race. And some people who are good candidate, but they are not allowed to the race. So I just wonder if you can really focus, what I mean is not at the federal but local to federal and the three branches, not just Congress, whether you can really emphasize it, but people’s voice should be heard in a daily basis so the money who have influence means unjust manipulation – this type of influence can be eliminated. And also, another process, if we can maintain a good record of candidates rather than erase all their previous effort.

MR. LESSIG: Yeah. I mean, I think it’s really important to distinguish between the influence of the money on voters and the influence of the money on candidates because everything I’ve talked about is about the way the fundraising affects the candidates. I’m actually not sure that the money influences voters in any interesting way. I mean, I’m not happy about the way the money influences voters, but I think the voters eventually can work that stuff out. But the part that’s corrupting if you are, you know, like you were describing the Iowa example, or if you’re a candidate who’s like thinking about what my position on seven issues are, should be, and I’m thinking about where the seven Super PACs are on this issue – that’s the dynamic that’s corrupting.

In Michelle Nunn’s case in Georgia, there was this leaked memo from her campaign, talking about how she needed to spend 85 percent of her time fundraising, except for the final weeks before the campaign. She only had to spend 50 percent of her time fundraising. But the more troubling part of that memo was that it went through every single interest group that was giving money or spending money in the Super PAC and described what her position had to be with respect to those interest groups in order to attract that money. And this was a supposedly liberal Democrat, you know, being told about what the Chamber of Commerce would say about the following, you know, six issues.

And it’s that dynamic which is the only thing that I think we need to worry about, and constitutionally I think we can worry about. I think the Constitution properly interpreted says we can’t worry about the effect of speech on the people. That’s for the people to worry about. It’s only the effect on the institution of Congress.

MR. ORNSTEIN: Last question.

Q: Thank you. Lachlan Markay with the Washington Free Beacon. In the context of the presidential race, very often the complaint, especially I think from the right, but from the left as well, is that candidates have been foisted upon the party by these elites, well funded, based mostly in New York and D.C. And you know, right now, we have the best funded candidate on the Republican side who’s been lagging the polls, Jeb Bush, of course, while Donald Trump, who’s self funding and really hasn’t run much in the way of ads, and Ben Carson, you know, small dollar funded – they’re surging in the polls. Very often, you know, those – to take those examples, seem a little less likely to compromise on some of these major issues than a Jeb Bush would be. And that was probably the case with Romney as opposed to Michele Bachmann and McCain as opposed to some of the other candidates that year. So I’m just wondering how you think that squares with the gridlock scenario.

MR. LESSIG: Well, I think your description of the presidential race is exactly right. And of course, that was – as you were making the point – that was Donald Trump’s selling card. I mean, it’s what really – you know, it was the only leavening, you know, the balancing to his crazy views about immigration was the fact that he was also saying these really great things about campaign finance at the same time. And so I think you’re right at the presidential level.

And my view has always been that I’m not focused on the president. You know, I actually am not sure – I mean, I would support presidential public funding and I think it’s outrageous to imagine the amount of time that candidates spend raising money. I mean, the best statistic from presidential level was, in – you know, of course, we have to remember every president between Nixon and Obama was elected from presidential public funding. When Ronald Reagan, who benefited more from presidential public funding than anybody else, three times running a national campaign, it wouldn’t have been a Ronald Reagan if it hadn’t from public funding because in 1976, the Republican Party was not about to support a right-winger opposing a sitting Republican president.

When he ran for reelection, he attended eight fundraisers. When Barack Obama ran for reelection, he attended 220 fundraisers, right? And then on the Republican side, Republicans complain that these candidates are spending all their times in blue states because that’s where the money is, as opposed to spending their time in red states trying to persuade voters.

So I’m all for presidential public funding and I think we ought to revive that system. But I actually think we could survive, the democracy could survive with this system at the presidential level. The problem is the Congress, the problem – the failed institution is Congress. And as much as I – you know, and one reason to be fearful about that failed institutional is that the natural dynamic of government is to work around a failed institution. So you know, liberals spend the ’50s and the ’60s and the early part of the ’70s racing to the Supreme Court for all sorts of things they couldn’t get through Congress, right? Because the Supreme Court was the only open venue for those kinds of attitudes. And the same thing now with the president. Everybody looks to the president becoming an ever more imperial, powerful body. Why? Because Congress can’t do it.

So, you know, my colleague – now, she’s not my colleague, but Elena Kagan, when she was – she and I started teaching together at Chicago, when she started teaching, she was all against the idea of the president having all this amazing power. Then she worked for Clinton, and the first thing she wrote for the Harvard Law Review when she came out was how wonderful it was to have this imperial president who can do all these amazing things. Why? Because there’s no Congress. Because no Congress could do those things.

So I think we’ve got to revitalize Congress because in a democratic republic, in a republic which is supposed to be a representative democracy, you’ve got to have a well functioning legislative branch if you’re not going to avoid the tyranny of the judiciary or the tyranny of, you know, the presidency, which is I think the problem we’ve produced in both the presidency and the judiciary.

MR. ORNSTEIN: So I want to thank you, first of all, for mentioning my book. And we have a new addition in the works, which we are going to title, “It’s Even Worse Than It Was When We Said It’s Even Worse Than It Was.” (Laughter.) But I also want to note that Judge Richard Posner said of Larry Lessig that he is the most distinguished law professor of his generation. And I think we can see why that very smart judge made that judgment. And thank you for being with us.

MR. LESSIG: Thank you. (Applause.)

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