Professor Lawrence Lessig on “The Corrupting Influence of Money on Politics”

so thank you Dean Lester do I call you Dean or do I call you acting okay justine Lester it's good it's wonderful to be here I'm but I have to confess I'm a little anxious to be here I'm anxious because one part of my life a big chunk of the last 25 years of my life has been as an academic but the part of my life I want to talk about tonight is life as an activist I spend a chunk of my life talking about academic questions but i would ask citizen questions tonight and I was led to this shift by a certain recognition a recognition that I know many of the people in this audience share the recognition that something fundamental is not working I got to this place by thinking about IP both VIP as in tcp/ip and the IP as in copyright as IP my academic work focused in this area in this sense I spent like chunk of my life in the same place Thomas Jordan spent his life and in this space as we talked about these issues for over 15 years I saw progress everywhere in the recognition and understanding of people universities businesses parents ordinary Americans about the need for progress and to update the way in which the law thought about both the regulation of technology and the regulation of copyright we saw progress everywhere except for this place in this place members of Congress promulgated ideas like the statute in honor of this great American the sonny bono copyright term extension act a statute which extended the term of existing copyrights by 20 years an idea which when we challenged in the Supreme Court we had a brief by a bunch of economists including this right let the left wait no I'm sorry this is non filming right wing Nobel prize-winning economist who said he would join the brief attacking the statute only if the word no-brainer was somewhere in the brief so obvious was it that you couldn't advance the public good by extending the term of existing copyrights but apparently there were no brains in this place when Congress unanimously extended the term of existing copyrights an institution that promulgated this statute the SOPA PIPA statute which brought Wikipedia to shut down in protest and a year ago then led thousands of people to call their Congress people to get them to withdraw that idea a regime that leads people like this US Attorney Carmen Ortiz to say something like stealing is stealing whether you use a computer command or a crowbar showing clearly she understands neither computers nor crowbars so the question is why is it I asked about six years ago our political system is so bad in understanding and updating its recognition the way the law should work in this particular area and about 2006 I'm embarrassed to say I had the recognition that of course it wasn't just here in the area of IP that this failure to understand an update occurred it was in a wide range of areas but the particular focus that I had at that time was around this film which a friend of mine made for al gore and so I got to see Gore present this talk again and again and again and it hit me I thought it was a smart person but when I realized it took me so long to recognize this I realized I couldn't be a smart person it hit me that it wasn't just esoteric questions like IP where we couldn't get a Congress to respond to the obvious truths that other people got it was in this fundamental area too and in many fundamental areas and when you ask why is it the institution was incapable of focusing here I was struck by the comments of James Hansen who of course is one of Al Gore's heroes in the context of this film but as hansen accounts for the failure of the system to understand and respond to global warming he says I believe the biggest obstacle to solving global warming is the role of money in politics so between night 2006 and 2007 I had the great pleasure of being in Berlin I was writing the final book that I wrote in this space remix about this issue and I was visited by an extraordinary young man Aaron Swartz who came to Berlin to attend a conference called the Chaos Computer Conference and in January came to visit me at at the American Academy and we had a long conversation that night the two of us and he said to me in that conversation how are you going to ever deal with the issues that you care about without dealing with this corruption first and I said to him you know Aaron it's not my field on my field and he said as an academic I said yes as an academic it's not my field my field is technology and policy and I focused my energy there and he said well what about as a citizen what about as a citizen and it was that conversation that led me to decide that I was going to throw away all the intellectual capital I had built for the last ten fifteen years and started a new project which announced that summer a project to focus on this question of the corrupting influence of money and how do we rally or build the recognition necessary to address it and it's this move between the academic and the citizen that I want us to think about tonight in particular I want to think about the luxuries we can afford as citizens and his academics because it's academics we have to recognize at least in America it's as great as it has ever been in the history of human culture it's as great as it's ever been the resources the opportunity the culture encourages us to take her to question to wait to watch to quibble it is what we do as academics the question I want to ask tonight is what do we do as citizens can we afford this luxury as citizens because when you think back to other moments in our history when a political system felt it had to confront fundamental issues it didn't have the luxury that academics have today think back to the founding framers recognizing the nation was about to fall off the cliff recognizing they needed to figure out a new structure all they had was history a little bit of law they didn't even understand Adam Smith yet they had no regressions they had didn't even have Windows 3.1 they had none of these things for addressing the most important issues that they had yet they had to address them it had to address them with what they knew and architect a constitutional system they felt what makes sense with what they knew the puzzle is now that we have more than they had but it feels as if we have less capacity to do anything with what we have less capacity to resolve and move forward to decide to fix and I think we can't afford less anymore we have to think about how do we frame what we do in a way to get us into something more so here's the argument i want to lay out i'm going to set it up with a certain framing of the problem but i want to introduce this problem by telling you a story and disney told me that all stories have to begin like this so once upon a time started out with all due respect to the dean there was a place called Lester land Lester land now jelly didn't mention this because it's a secret I don't like anybody know this so don't tell anybody but my first name is Lester so I'm allowed to make fun of last year's I'm not making fun of the Dean I'm making fun of I'm invoking my own name here Lester land so here's last early unless you looks a lot like the United States like the United States it has about 310 million people and of the 310 million people it turns out 144,000 of them are named Lester so that means about point zero five percent of Lester land is named Lester now the thing about Lester land is that Lester's have a certain kind of power in lesterland there are two elections every election cycle in Westerland there's a general election and there is a Lester election in the last election the Lester's get to vote in the general election all citizens over 18 in some states if you have an ID get to vote but here's the catch to be allowed to run in the general election you must do extremely well in the Lester election you don't necessarily have to win but you must do extremely well now what can we say about this picture of democracy called Lester lamp well we can say number one as a supreme court said in Citizens United but the people in lesterland have the ultimate influence over elected officials because after all there is a general election but only after the Lester's have had their way with the candidates who wish to run in that general election and number two we can say obviously this dependence upon the Lester's is going to produce a subtle understated may be camouflaged bending to keep these Lester's happy and number three reform that angers the Lester's is likely to be highly unlikely in leicester lat okay now once you have this conception of Lester land I want you to see three fins that follow from this conception number one the United States is Lester left the United States is lesterland United States also looks like this also has two elections one's called the general election the other is called the money election and the general election all citizens get to vote if you are over 18 in some states if you have an ID in the money election it's the relevant funders who get to vote and as in lesterland to be allowed to run in the general election you must do extremely well in the money election you don't necessarily have to win there are jerry Brown's in this story but you must do extremely well but here's the key there are just as few relevant funders in this democracy as there are Lester's in lesterland now you say really point zero five percent when hear the numbers from 2012 2012 point four percent of America gave more than two hundred dollars to any federal candidate point zero five five gave the maximum amount to any federal candidate point zero one gave ten thousand dollars or more to federal candidates 4000 three percent gave a hundred thousand dollars or more my favorite statistic point 0 0 0 0 for 2 percent and for those of you doing the numbers you know that's a hundred and thirty two Americans gave sixty percent of the super PAC money spent in the twenty twelve election cycle so I'm just a humble lawyer I look at point four point zero five 5.01 I think it's fair for me to say point zero five percent is a fair estimate of the relevant funders in our system for funding elections in this sense the funders are our Lester's now like we can say about Lester land this is what we can say about us a len number one Supreme Court is completely right the people have the ultimate influence the ultimate influence over the elected officials because there is a general election but only after the funders have had their way with the candidates who wish to run in that general election and number two obviously this dependent upon the funders produces the subtle understated camouflaged we could say bending to keep the funders happy members of Congress and candidates for Congress spend anywhere between thirty and seventy percent of their time raising money to get back to Congress to get their party back into power Democratic leadership handed out this PowerPoint slide to all incoming Democratic freshmen this slide which gives them their daily schedule their daily schedule which includes explicitly for hours voted to the task of calling to raise money and this is just during the day what do they do at night go to fundraisers and raise more money now any human that had this light would develop a sixth sense a constant awareness about how what you do will affect your ability to raise money in the words of the x-files they will become shape shifters as they constantly adjust their views in light of what they know will help them to raise money Leslie burn a Democrat for Virginia describes that when she went to Congress she was told by a colleague quote always leaned to the green and to clarify she went on he was not an environmentalist and then point three reformed that angers the funders is likely to be highly unlikely in USA as lesterland that's the first point to see here's the second United States is last LAN the United States is worse than westerlund worse than Lester work because you can imagine in lesterland if we lester's got a letter from the government that said you know you guys get to pick who's going to be the candidates that run in the general election you can imagine we would develop a kind of aristocratic attitude we would believe begin to believe we need to act in the interest of the country as a whole you know Lester's come from all parts of society at a rich Lester's poor Lester's black Lester's whites not many women Lester's except the Dean of course but not many women Lester's but put that aside for a second it come from all parts of society it's at least possible that the Lester's would be inspired to act for the good of lesterland but in our land in this land in USA land the Lester's act for the Lester's because the shifting coalition's that comprise the point zero five percent comprise two point zero five percent because of the issues they know will be decided in the next congressional term so if its climate change legislation its oil companies and coal companies that comprise a significant portion of the point zero five percent if it's health care its pharmaceutical companies or doctors or insurance companies that comprise a significant portion the point zero five percent whatever the issue is that what does that's what's determines who the Lester's are and these Lester's don't gather for the public interest so in this sense the United States is worse than less one point number three whatever one wants to say about Lester land against the background of its tradition whatever explains this interesting little place in our land in USA land we have to recognize that a Lester land like government is a corruption a corruption now by corruption I don't mean cash secret around in brown paper bags I don't mean a kind of Rob Blagojevich sense of corruption I'm not talking about the violation of any criminal statute I'm not asserting that anybody in our system does anything illegal I'm not talking about breaking the law instead I mean a corruption relative to the framers baseline for how the Republic was to function so the framers gave us what they explicitly called a Republican but by a republic they meant a representative democracy and bio representative democracy as Madison explains in Federalist 52 they meant a government that would have a branch that would be dependent upon the people alone here's the model of government they have the people they have the government and turn on slides it all the way that bounces like that okay the people and the government and through that exclusive dependency so would the public would be found but here's the problem Congress has evolved a different dependence not a dependence upon the people alone but increasingly dependent upon the funders this is a dependence too but it's different and conflicting from a dependence upon the people alone so long as the funders are not the people it is a corruption and we should understand it precisely as a corruption of the architecture of this Republic now I want to claim the right to say this that it's a corruption I'm going to claim the right as an academic to say this because I have credentials here right I'm a constitutional law professor deep I'm an adult constitutional law professor because I've been teaching for 21 years constitutional law okay and in the gestation period is getting really weird this was my teacher too okay so I have a sense of the Constitution tradition I think it was me to assert that this is I kind of ruption I believe that if I could bring a string of framers back I could convince them that this is a corruption of the system they described but the difficulty for me as an academic is that I want to say more than just that I want to say that this corruption has an effect I want to say has an effect on US citizens and it has an effect on our government so it as an effect are cysts citizens in the way drives us to regard our government so first effect is this Americans believe it's a separate question I think Americans are right to believe but let's focus on their belief americans believe quote money buys results in Congress seventy-five percent of americans according to a poll i conducted for the book that i published last fall a little bit higher Democrats and Republicans but i guarantee you before the republicans took control of the house it was just as many Republicans as democrats so whether it's two-thirds or a three-fourths here's the one thing we americans all believe money buys results in Congress leading to point number two that believe undermines trust in the institution of Congress ABC in new york times published a poll last year saying that nine percent of america a confidence in our Congress nine percent put that in some context but certainly the case at the time of the American Revolution higher percentage of Americans had confidence in the British crown than have confidence in our Congress today and that leads to point number three this weekend trust weakens the reasons one has to participate so this is the point that David Souter made in Nixon vs shrink Missouri he said leave the perception of impropriety unanswered and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance it's would Rock the Vote discovered in 2010 in 2008 they turned out the largest number of young voters in the history of voting to that point 2010 they founded a significant number of their voters were just not going to turn out so they pulled them to ask them why the number one reason by far two to one of the second-highest reason was no matter who wins corporate interest will still have too much power and to prevent real change and it's not just kids vast majority people in 2010 who could have voted did not vote I submit in part at least because of this belief and even in this election for to the percent of the people who could have voted did not vote in part at least because of this belief that is its effect on us but maybe more significant is its effect on our government because I believe this economy has this corruption has a certain economy an economy that has actors the lobbyists the members the Lester's working together in an economy and this economy has an effect two in particular I want to identify here number one we can think of the economy of know that gets produced by this economy of these three actors number two the economy of extortion so let's think first about the economy of no in any system where this tiny fraction of the one percent are the relevant funders any system like this means that a tiny number of that tiny fraction of the one percent is sufficient to block any motion for change always or at least almost always and this points to the instability that I think we have allowed to evolve inside of this government this is the economy of know and this economy depends upon polarization to make it function better it depends upon dysfunction to make it function better because dysfunction makes it easier to sell the good that is being sold the good of saying no of stopping the system from functioning dysfunction is the business model Lee Fang at the nation wrote this piece about lobbyists we're trying to stop the reform of the Senate filibuster process and he quoted from a website one of the lobbyists describing the service that lobbyists could provide to any business that was so interested in securing it it's a service called managing holds and filibusters your organization has an interest in a bill that has been proven controversial and you require advocacy before those legislature legislators often back the bench Senate Republicans who may exercise is their prerogatives to delay or obstruct endgame strategies will give you a new way to manage your interest in a legislative environment that gives great power to individual senators we are auctioning the ability to block and it's because of this tiny number of less Lester's that are needed to exercise the leverage to get them to block to get them to say no that we have this economy of know at the center of the way this government now functions now there are exceptions we can now dream of the negation immigration reform because this party is fearing its own extinction there are exceptions the tragedy and Sandy Hook may bring us to a place that the government can finally address the problem of guns in a comprehensive way these are exceptions but there are exceptions against the background of a clear rule and if that rule I suggest that is the core of the instability in the way this government doesn't function so that's the economy of note and then there's the economy of extortion so I've pointed to the point zero five percenter Lester's think now about the point zero zero zero one four percent members of Congress because the dynamic that we should recognize is obvious once you think about it the dependence members of Congress creates their own dependencies to help them feed their dependency so think for example about this The Wall Street Journal two years ago was puzzled by the rise of what they called these temporary tax code provisions task code is riddled with the short-term provisions that expire at a certain point and if you want them extended got to go to Congress to get them extended once again and the number of these extensions was growing and the journal didn't quite understand why they would be growing like this but from the perspective I'm offering it should be obvious why they're growing like this Reagan gave us the first of these temporary provisions the 1981 research and development tax credit it was made temporary because there was an argument about whether work Democrats said it wouldn't work Republicans said it would work so they said okay let's make a temporary and then we'll ask economists after a period of time whether worked after period of time as …