Lawrence Lessig: We the People, and the Republic we must reclaim
Once upon a time, there was a place called Lesterland. Now Lesterland looks a lot like the United States. Like the United States, it has about 311 million people, and of that 311 million people, it turns out 144,000 are called Lester. If Matt’s in the audience, I just borrowed that, I’ll return it in a second, this character from your series. So 144,000 are called Lester, which means about .05 percent is named Lester. Now, Lesters in Lesterland have this extraordinary power. There are two elections every election cycle in Lesterland. One is called the general election. The other is called the Lester election. And in the general election, it’s the citizens who get to vote, but in the Lester election, it’s the Lesters who get to vote. And here’s the trick. In order 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 democracy in Lesterland? What we can say, number one, as the Supreme Court said in Citizens United, that people have the ultimate influence over elected officials, because, after all, there is a general election, but only after the Lesters have had their way with the candidates who wish to run in the general election. And number two, obviously, this dependence upon the Lesters is going to produce a subtle, understated, we could say camouflaged, bending to keep the Lesters happy. Okay, so we have a democracy, no doubt, but it’s dependent upon the Lesters and dependent upon the people. It has competing dependencies, we could say conflicting dependencies, depending upon who the Lesters are. Okay. That’s Lesterland.
Now there are three things I want you to see now that I’ve described Lesterland. Number one, the United States is Lesterland. The United States is Lesterland. The United States also looks like this, also has two elections, one we called the general election, the second we should call the money election. In the general election, it’s the citizens who get to vote, if you’re over 18, in some states if you have an ID. In the money election, it’s the funders who get to vote, the funders who get to vote, and just like in Lesterland, the trick is, to run in the general election, you must do extremely well in the money election. You don’t necessarily have to win. There is Jerry Brown. But you must do extremely well. And here’s the key: There are just as few relevant funders in USA-land as there are Lesters in Lesterland.
Now you say, really? Really .05 percent? Well, here are the numbers from 2010: .26 percent of America gave 200 dollars or more to any federal candidate, .05 percent gave the maximum amount to any federal candidate, .01 percent — the one percent of the one percent — gave 10,000 dollars or more to federal candidates, and in this election cycle, my favorite statistic is .000042 percent — for those of you doing the numbers, you know that’s 132 Americans — gave 60 percent of the Super PAC money spent in the cycle we have just seen ending. So I’m just a lawyer, I look at this range of numbers, and I say it’s fair for me to say it’s .05 percent who are our relevant funders in America. In this sense, the funders are our Lesters.
Now, what can we say about this democracy in USA-land? Well, as the Supreme Court said in Citizens United, we could say, of course the people have the ultimate influence over the elected officials. We have 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 dependence upon the funders produces a subtle, understated, camouflaged bending to keep the funders happy. Candidates for Congress and members of Congress spend between 30 and 70 percent of their time raising money to get back to Congress or to get their party back into power, and the question we need to ask is, what does it do to them, these humans, as they spend their time behind the telephone, calling people they’ve never met, but calling the tiniest slice of the one percent? As anyone would, as they do this, they develop a sixth sense, a constant awareness about how what they do might affect their ability to raise money. They 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 on issues one to 10, but on issues 11 to 1,000. Leslie Byrne, a Democrat from Virginia, describes that when she went to Congress, she was told by a colleague, “Always lean to the green.” Then to clarify, she went on, “He was not an environmentalist.” (Laughter)
So here too we have a democracy, a democracy dependent upon the funders and dependent upon the people, competing dependencies, possibly conflicting dependencies depending upon who the funders are.
Okay, the United States is Lesterland, point number one. Here’s point number two. The United States is worse than Lesterland, worse than Lesterland because you can imagine in Lesterland if we Lesters got a letter from the government that said, “Hey, you get to pick who gets to run in the general election,” we would think maybe of a kind of aristocracy of Lesters. You know, there are Lesters from every part of social society. There are rich Lesters, poor Lesters, black Lesters, white Lesters, not many women Lesters, but put that to the side for one second. We have Lesters from everywhere. We could think, “What could we do to make Lesterland better?” It’s at least possible the Lesters would act for the good of Lesterland. But in our land, in this land, in USA-land, there are certainly some sweet Lesters out there, many of them in this room here today, but the vast majority of Lesters act for the Lesters, because the shifting coalitions that are comprising the .05 percent are not comprising it for the public interest. It’s for their private interest. In this sense, the USA is worse than Lesterland.
And finally, point number three: Whatever one wants to say about Lesterland, against the background of its history, its traditions, in our land, in USA-land, Lesterland is a corruption, a corruption. Now, by corruption I don’t mean brown paper bag cash secreted among members of Congress. I don’t mean Rod Blagojevich sense of corruption. I don’t mean any criminal act. The corruption I’m talking about is perfectly legal. It’s a corruption relative to the framers’ baseline for this republic. The framers gave us what they called a republic, but by a republic they meant a representative democracy, and by a representative democracy, they meant a government, as Madison put it in Federalist 52, that would have a branch that would be dependent upon the people alone.
So here’s the model of government. They have the people and the government with this exclusive dependency, but the problem here is that Congress has evolved a different dependence, no longer a dependence upon the people alone, increasingly a dependence upon the funders. Now 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. This is a corruption.
Now, there’s good news and bad news about this corruption. One bit of good news is that it’s bipartisan, equal-opportunity corruption. It blocks the left on a whole range of issues that we on the left really care about. It blocks the right too, as it makes principled arguments of the right increasingly impossible. So the right wants smaller government. When Al Gore was Vice President, his team had an idea for deregulating a significant portion of the telecommunications industry. The chief policy man took this idea to Capitol Hill, and as he reported back to me, the response was, “Hell no! If we deregulate these guys, how are we going to raise money from them?”
This is a system that’s designed to save the status quo, including the status quo of big and invasive government. It works against the left and the right, and that, you might say, is good news.
But here’s the bad news. It’s a pathological, democracy-destroying corruption, because in any system where the members are dependent upon the tiniest fraction of us for their election, that means the tiniest number of us, the tiniest, tiniest number of us, can block reform. I know that should have been, like, a rock or something. I can only find cheese. I’m sorry. So there it is. Block reform.
Because there is an economy here, an economy of influence, an economy with lobbyists at the center which feeds on polarization. It feeds on dysfunction. The worse that it is for us, the better that it is for this fundraising.
Henry David Thoreau: “There are a thousand hacking at the branches of evil to one who is striking at the root.” This is the root.
Okay, now, every single one of you knows this. You couldn’t be here if you didn’t know this, yet you ignore it. You ignore it. This is an impossible problem. You focus on the possible problems, like eradicating polio from the world, or taking an image of every single street across the globe, or building the first real universal translator, or building a fusion factory in your garage. These are the manageable problems, so you ignore — (Laughter) (Applause) — so you ignore this corruption.
But we cannot ignore this corruption anymore. (Applause) We need a government that works. And not works for the left or the right, but works for the left and the right, the citizens of the left and right, because there is no sensible reform possible until we end this corruption. So I want you to take hold, to grab the issue you care the most about. Climate change is mine, but it might be financial reform or a simpler tax system or inequality. Grab that issue, sit it down in front of you, look straight in its eyes, and tell it there is no Christmas this year. There will never be a Christmas. We will never get your issue solved until we fix this issue first. So it’s not that mine is the most important issue. It’s not. Yours is the most important issue, but mine is the first issue, the issue we have to solve before we get to fix the issues you care about. No sensible reform, and we cannot afford a world, a future, with no sensible reform.
Okay. So how do we do it? Turns out, the analytics here are easy, simple. If the problem is members spending an extraordinary amount of time fundraising from the tiniest slice of America, the solution is to have them spend less time fundraising but fundraise from a wider slice of Americans, to spread it out, to spread the funder influence so that we restore the idea of dependence upon the people alone. And to do this does not require a constitutional amendment, changing the First Amendment. To do this would require a single statute, a statute establishing what we think of as small dollar funded elections, a statute of citizen-funded campaigns, and there’s any number of these proposals out there: Fair Elections Now Act, the American Anti-Corruption Act, an idea in my book that I call the Grant and Franklin Project to give vouchers to people to fund elections, an idea of John Sarbanes called the Grassroots Democracy Act. Each of these would fix this corruption by spreading out the influence of funders to all of us.
The analytics are easy here. It’s the politics that’s hard, indeed impossibly hard, because this reform would shrink K Street, and Capitol Hill, as Congressman Jim Cooper, a Democrat from Tennessee, put it, has become a farm league for K Street, a farm league for K Street. Members and staffers and bureaucrats have an increasingly common business model in their head, a business model focused on their life after government, their life as lobbyists. Fifty percent of the Senate between 1998 and 2004 left to become lobbyists, 42 percent of the House. Those numbers have only gone up, and as United Republic calculated last April, the average increase in salary for those who they tracked was 1,452 percent. So it’s fair to ask, how is it possible for them to change this? Now I get this skepticism.
I get this cynicism. I get this sense of impossibility. But I don’t buy it. This is a solvable issue. If you think about the issues our parents tried to solve in the 20th century, issues like racism, or sexism, or the issue that we’ve been fighting in this century, homophobia, those are hard issues. You don’t wake up one day no longer a racist. It takes generations to tear that intuition, that DNA, out of the soul of a people. But this is a problem of just incentives, just incentives. Change the incentives, and the behavior changes, and the states that have adopted small dollar funded systems have seen overnight a change in the practice. When Connecticut adopted this system, in the very first year, 78 percent of elected representatives gave up large contributions and took small contributions only. It’s solvable, not by being a Democrat, not by being a Republican. It’s solvable by being citizens, by being citizens, by being TEDizens. Because if you want to kickstart reform, look, I could kickstart reform at half the price of fixing energy policy, I could give you back a republic.
Okay. But even if you’re not yet with me, even if you believe this is impossible, what the five years since I spoke at TED has taught me as I’ve spoken about this issue again and again is, even if you think it’s impossible, that is irrelevant. Irrelevant. I spoke at Dartmouth once, and a woman stood up after I spoke, I write in my book, and she said to me, “Professor, you’ve convinced me this is hopeless. Hopeless. There’s nothing we can do.” When she said that, I scrambled. I tried to think, “How do I respond to that hopelessness? What is that sense of hopelessness?” And what hit me was an image of my six-year-old son. And I imagined a doctor coming to me and saying, “Your son has terminal brain cancer, and there’s nothing you can do. Nothing you can do.” So would I do nothing? Would I just sit there? Accept it? Okay, nothing I can do? I’m going off to build Google Glass. Of course not. I would do everything I could, and I would do everything I could because this is what love means, that the odds are irrelevant and that you do whatever the hell you can, the odds be damned. And then I saw the obvious link, because even we liberals love this country.
And so when the pundits and the politicians say that change is impossible, what this love of country says back is, “That’s just irrelevant.” We lose something dear, something everyone in this room loves and cherishes, if we lose this republic, and so we act with everything we can to prove these pundits wrong.
So here’s my question: Do you have that love? Do you have that love? Because if you do, then what the hell are you, what are the hell are we doing?
When Ben Franklin was carried from the constitutional convention in September of 1787, he was stopped in the street by a woman who said, “Mr. Franklin, what have you wrought?” Franklin said, “A republic, madam, if you can keep it.” A republic. A representative democracy. A government dependent upon the people alone. We have lost that republic. All of us have to act to get it back.
Thank you very much.
(Applause) Thank you. Thank you. Thank you. (Applause)