Law professor Lawrence Lessig

Originally aired on November 7, 2011

The Harvard law professor and author of Republic Lost discusses the OWS and Tea Party movements and explains how Washington’s distorted focus on raising campaign funds impacts America.

Lawrence Lessig is director of the Edmond J. Safra Foundation Center for Ethics at Harvard and a law professor at Harvard Law School. He previously taught at the law schools of Stanford (where he founded Stanford's Center for Internet and Society) and the University of Chicago and clerked for Supreme Court Justice Antonin Scalia. For much of his academic career, Lessig has focused on law and technology and has authored five books on the subject. His current work addresses "institutional corruption," which he writes about in his new text Republic, Lost.


Tavis: Lawrence Lessig is a professor of law at Harvard and director of the school’s Edmond Safra Center for Ethics. His new text is called “Republic Lost: How Money Corrupts Congress and a Plan to Stop It.” Professor Lessig, good to have you on this program.

Lawrence Lessig: Great to be here, sir.

Tavis: To suggest that the Congress is corrupted is one thing and I don’t think most Americans would argue you on that, but to suggest that the republic is lost, those are two very different things, yes?

Lessig: That’s right.

Tavis: Why suggest the republic is lost?

Lessig: Well, because we have to understand first what they meant by a republic. When our framers gave us our republic, they thought it was a representative democracy and they defined a representative democracy to be a democracy dependent upon the people alone.

What we’ve allowed to happen is we’ve allowed Congress to develop a different dependency. As members spend 30% to 70% of their time raising money to get back to Congress and to get their party back in power, they have a different dependency, a dependency upon the funders, and that dependency conflicts with the dependency upon the people alone. So in this sense, a republic responsive to the people has been deflected by this republic increasingly responsive to the funders.

Tavis: There are two over-arching issues that you really focus in on that underscore the point you’re making in the text. In no particular order, one is bad governance. Tell me more about what you mean by that.

Lessig: Well, it’s governance that’s distorted from what it would be doing if it were focusing on what the people who elected them want them to do, whether that’s Democrats or Republican. A key that I want to make here is that this is a problem for both the right and the left. So it distorts the government because they’re paying attention to the shape-shifting they have to engage in to convince the funders to continue to fund them.

The best example of this, I think, is Wall Street. You know, it’s one thing to say Wall Street was able to buy deregulation up through 2008, but after 2008, after the worst crisis since the Depression, after the king of deregulation, Alan Greenspan, said that he had been “mistaken” about what the banks would do when faced with the risks and the opportunities they did, even then Wall Street was able to blackmail both the Democrats and the Republicans into imposing not any change on the fundamental structural problem that gave us that collapse. That’s the sense of distortion that I think everybody on the right and left has got to acknowledge.

Tavis: To your point, if Congress is corrupted, that means both the left and the right, as you suggested earlier, have been corrupted in the process. But how do we define what bad governance is? Because it seems to me it’s impossible to use that phrase without attaching that to politics on both the left and the right. It’s such a politically loaded phrase.

Lessig: It is, and let’s just be clear, though, about what I mean by corruption first. There’s a corruption in the sense of Rod Blagojevich or Randy Duke Cunningham, people taking money or bribery or any criminal — I don’t think our Congress in that sense is corrupt at all. I think, in that sense, our Congress is the cleanest Congress in the history of Congress.

The corruption here is that constant distortion of, you know, the addict thinking about the bottle rather than thinking about his or her job as they’re constantly focused on what this other stuff would be. In that focus, it’s impossible not to see how what they do, what they spend their time doing, what they argue about on the floor of the House, is focused on the things that are driving fundraising as opposed to the things that are driving the concerns of the American people.

The best example recently was, in the first four months of this year, Huffington Post calculated what the number one issue was that Congress was focused on, right? We’re in the middle of two wars, huge unemployment crisis, huge debt crisis, huge problems with the healthcare plan; we don’t even begin to address global warming. What’s the number one issue Congress is focused on? The bank swipe fee crisis, like whether banks get to charge more for swiping your debit cards or retail companies have to pay less.

Why is this the number one issue that Congress is focused on? Because, as a congressman, if you pretend you’re not quite sure which side you’re coming down on this issue, all of a sudden tons of campaign cash comes flowing down on top of your campaign. So why don’t we pay attention to unemployment in America? It turns out unemployment doesn’t raise a lot of campaign funds for the congressman who might be addressing it.

Tavis: You’ve not said much that I disagree with, but I’m curious to ask you what role you think the Supreme Court has played in further corrupting Congress? Because that Citizens United case, as far as I’m concerned — I’m curious to get your take on this — but that Citizens United case is going to make this problem even worse because now money flows in unlimited. It flows from across the country. Now corporations are treated as people.

What do you make of how that decision by the Supreme Court — you once clerked for Antonin Scalia and he was on the wrong side, as far as I’m concerned, of that vote. But how does that corrupt the process even further?

Lessig: No doubt, it makes it much, much worse. You know, I actually think the particulars of that decision, whether the nonprofit corporation of Citizens United should have been allowed to spend its money to promote its terrible film about Hillary Clinton. The particulars were fine. Yeah, of course, they should have. But the point was the decision makes it sound like Congress has no power to address the kind of corruption that I’m talking about.

You’re right. What it means is an explosion in independent expenditures. The Supreme Court thought that those independent expenditures would be disclosed. It took a comedian, Colbert, to demonstrate on his show how in fact there’s a huge gap in the regulations allowing most of it to be effectively anonymous. So it makes it much, much worse.

But I think that it’s a mistake to think that, if we could just reverse Citizens United, we would solve the problem. Because on January 20, 2010, the day before Citizens United was decided, this democracy was already broken, so we’ve got to have a reform project which is about much more than correcting the mistakes of the Supreme Court.

Instead, it’s about making it so that this Congress can afford, has the independence, to pay attention to what the people want rather than constantly answering what their funders want.

Tavis: I don’t disagree with that. I just want to make sure that we agree that it’s both and not either/or.

Lessig: Absolutely, absolutely.

Tavis: The other issue that you raise in the book with regard to how this problem got to be as bad as it is is a loss of trust. A loss of trust by whom and in whom?

Lessig: Yeah. I think that we have developed this cynical society, you know, where we’re constantly looking for the ulterior motive. Where there’s a structure which screams the ulterior motive, we can’t help but believe that it’s the ulterior motive driving it. So 75% of Americans, in a poll that I conducted for the book, believe money buys results in Congress.

A little bit more are Democrats than Republicans, but I guarantee you, when the Democrats controlled Congress, it was more Republicans than Democrats. So whether it’s 2/3 or 3/4, this is the one thing we all happen to agree on. Money buys results in Congress because there’s this structure. They see Congress constantly spending their time raising money and they believe Congress is therefore bought. Now that is corrosive, right?

11% last year, Gallup calculated, of American people had confidence in Congress. It’s gotten better. Now 12% of American have confidence in Congress [laugh]. Put that in context. 12%. There were more people who believed in the British Crown at the time of the Revolution than who believe in this Congress today.

You have to ask at what point does an institution have to declare political bankruptcy because we just don’t trust them to do their job? Now this, I think, because we see money driving results. We, therefore, have no confidence that they’re gonna be listening to us as opposed to the money people.

You know, the people on Occupy Wall Street have their signs, “We’re the 99%.” Well, the only people the politicians really listen to are the people who max out in the contribution. That’s .05%. So their signs ought to say “We are the 99.5%” who don’t get a voice, don’t get access into this political process because we are not the funders of these campaigns.

Tavis: To your point now, Professor Lessig, I wonder whether or not you think that, if the protests by Occupy Wall Street continue to grow, might have an impact on this corruption.

Lessig: I think, if they can frame the issue properly, this could be the trigger that makes possible this change. You know, I’m a liberal and I’ve been out to these protests in Washington and New York and Seattle just over the weekend. I’m happy to see people rallying around liberal causes. Of course, I think we’ve compromised way too much in the past 30 years on our beliefs.

But there’s one thing to say here’s what I believe in as a liberal. It’s another thing to say what do we believe in as Americans that might actually give us a path towards reforming the corrupt system we’ve got right now? I think, you know, whether or not you believe in capitalism — I do — but whether or not you believe in capitalism, nobody believes in crony capitalism. Crony capitalism is exactly the kind of capitalism we’ve got now.

Tavis: But herein lies the problem. To your point, whether one agrees or disagrees with the liberal or left views, as some might call them, of these protesters, when they step up to raise their voice, when they step up to say something about this corruption, they get called anti-capitalist, they get called mobs, they get demonized, a lot of people casting aspersion on them.

I’m only raising that not to defend them per se, but to ask if people taking to the streets to raise their voices about these issues gets them demonized in the process, how do — pardon the pun — the Citizens United ever push back on this in Congress? It’s our government, after all.

Lessig: It is, and it’s a real problem because we have business model in media — not every show, but a business model in media that’s driven towards polarization. You know, it pays to identify and demonize the other side.

Even the participants want to demonize the other side. The Tea Party wants to demonize the Occupy movement as a bunch of “anarchists” as an email that they just put out. Of course, when the Tea Party took off, people from the left wanted to demonize them as a bunch of racists.

So I think we’ve got to find a way. I’m not sure we can. You know, there’s no good evidence we can, but I think we’ve got to find a way to step outside of the framing of business models that want to teach us to hate each other and get us back to talking as citizens about what we need to change.

Tavis: In 45 seconds then, what’s the point of the book and where does your hope lie, if there’s no evidence to suggest that we can push back on this?

Lessig: Yeah. There is a way to fund elections that makes it so Congress is not dependent upon funders who are not the people. But we’ve got to recognize Congress isn’t gonna give us that. We got to build an outside-the-Beltway movement cross partisan. Don’t compromise our substantive values, but cross partisan, to push for that kind of fundamental change in this corruption.

I think we can do it. Not a lot of evidence yet, but I think in fact what we’re seeing happening breaking out across the country right now is the beginnings of exactly that.

Tavis: The timing for this text could not, to my mind, be more propitious. The new book is called “Republic Lost: How Money Corrupts Congress and a Plan to Stop It.” I suspect some of the Occupy Wall Street protesters may be reading this book right about now anyway. Lawrence Lessig, professor at Harvard, good to have you on the program.

Lessig: Great to be here, sir. Appreciate it.

Tavis: Glad to have you.

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Last modified: November 17, 2011 at 6:11 pm