Lawrence Lessig, Ph.D.

What’s your take on all the apathy we hear about, the number of people voting?

Well, I think that, people think they understand the system, and they think that system is corrupt, and they don’t think there’s anything they can do about it. So, it’s not the only corrupt part of their life. It’s not the only thing they don’t like in their life. But, they focus their energy where they think there’s something to get from their energy. And this is not one of those places.

You talked about the “capture of government by money.” What other ways are there to “capture” government?

Yeah. I think that our government’s a perfect example of this. It turns out it’s easier to increase the bottom line for many companies by going to Washington and controlling rule-making procedures, or monopoly-granting procedures, or regulatory procedures, than it is to build a better mousetrap. So, this just becomes part of the competitive strategy and our government is totally unable to resist this pressure, because the ideology of the people doing the capture is perfectly aligned with the people in control. So, these are the inheritors of the Reagan revolution, but Reagan must be spinning in his grave when he sees what’s happened to the ideas which he first launched 40 years ago.

I’ve you heard talk about “institutional corruption.”

Yeah. I think that we’ve got to recognize that there are contexts in which people are doing stuff which seems good, or they don’t seem personally to be corrupt – they seem like decent people – but they live within a system where the consequence of everybody behaving like that is corrupt. So, I think of politicians inside of Congress who because of the way they need to raise money to get into office, spend so much of their time focused in the wrong direction. Mainly, the direction that gets them money to come back to Congress.

They’re doing what they think they came to do, in a certain sense – namely, they’re pushing issues they believe in, they’re not being bought off in voting in ways that they never believed in – so, they feel individually like there’s nothing wrong with what they’re doing. But the net result of this system is that the system is corroded or corrupted relative to what it would be doing if the Congressman could actually just focus on they went there to do, which is to legislature, figure out what right public policy was.

So, I think this is an important distinction because most people hate Congress but love their Congressperson. And why is that? Well, that’s because in fact these people are decent, hardworking, honest people. And when you meet them, you think, wow, this person’s great. I mean, Congress is filled with crooks, but this person is great. Well, that’s because we have too simple a model here. They’re all good, they’re all great. There are some bad apples – [Randy Duke Cunningham] – but they’re all great.

We need to recognize, though, that just because they’re great, it doesn’t mean the system works. There’s such a thing as good Germans, I mean, good people in a really bad system. And they need to wake up and do something about the system.

Why is it that so many members of Congress are against publicly-financed elections?

It’s a real mystery, because their life is miserable the way it is right now. Depending on whether they’re in a safe district or not, they can spend anywhere up to eight hours during the election cycle or four hours regularly sitting in a little telemarketer booth telemarketing for dollars to come back to Congress. And they must come home at night and think, when I came to Congress I can’t actually believe that I imagined my life would be as this kind of Dialing for Dollars Congressman, as opposed to figuring out what bills are good, or what’s the strategy to get my legislative agenda ahead?

So, they must hate that. On the other hand, like anybody, I think they’re risk-averse. They figure, I’ve figured this system out, I’ve mastered it, I can win, if you change the system how I know I’m going to win? How do I know that somebody else isn’t going to come in and sweep me away? So it’s an awful system, but at least they are able to manage the system, and I think that makes them very reluctant to change.

You likened the predicament they’re in to alcoholism.

Yeah. I think it’s actually quite a compelling metaphor and one that gets people to understand the problem, because I think it’s a metaphor about dependency. And just like the body can become literally dependent upon alcohol, and it takes real will to resist that, so too, the system becomes dependent upon money. And when people say to the alcoholic, you’ve got to deal with the alcoholisms, his response is, no, no, I’m losing my job, I’m losing my wife, these are the really hard problems.

The response to that is, that’s right, those are the really fundamental problems you’re facing, but you won’t solve any of those until you solve the alcoholism first. It’s the same thing with money and government. Obviously global warming, the war in Iraq, poverty, all these are issues which are really critical issues in America right now, and they are the most important problems, but there is a first problem we’ve got to solve, and that’s the problem of removing this dependency so that Congressmen can actually make decisions on the basis of what the right answer should be, as opposed to what gets them the most money for their election.

How does this institutionalized corruption affect the lives of average Americans?

Well, one thing I think that happens is that people don’t even care to listen anymore to the stories politicians tell them about why they do what they do. I mean, for example, recent stories have come out about Hillary Clinton and the bankruptcy bill. So, she originally fought the bankruptcy bill when she was First Lady. Then she became Senator, and got about $140,000 in contributions from the [Cattikaw] Companies and financial institutors, and the very same bill which she had fought against, fundamentally unchanged, she then supported twice.

Now, when you tell people she supported this bill after getting $140,000, they’re finished listening. They know why she supported the bill. She says – and I believe her – this wasn’t about the money. And I think that’s in fact her character. It isn’t about the money. But the point is, everybody else who doesn’t have this deep faith in the character of Hillary Clinton or anybody, other politicians, just stops listening. The damage has been done. It’s about the money. And so, when you try to explain, no, no, here’s the difference in the bill, or here’s why this turns out to be a good idea, here’s why I changed my mind, all of those are thought of as just pretexts. They don’t matter, [though] what really matters is the money.

And that makes it essentially impossible for a Congressman to actually have a conversation that persuades people, to think of things differently. Because they’re always looking for the ulterior motive, which is money. And that’s why the institution becomes incapable of gaining the trust of anybody, because even though 98% of the time I think people are wrong, the fact is people think 100% of the time it’s money that’s making the decision.

How do our environment issues affect campaigns, our electoral systems? Do you see the affect on average people? Could we have a higher quality of life if our leaders were actually making different kinds of policies?

Well, of course. There are very practical ways in which what I think of as “easy” cases decided wrongly affect ordinary people’s lives. I mean, global warming will be the most dramatic. There was a study that Al Gore mentions in his film about scientific journals considering climate change, as a thousand articles are reviewed and zero question the basic assumptions. And then equivalent studies made of popular media journals about global warming and 53%, question the basic assumptions of climate change. And that’s a product of junk science produced by the energy companies who are trying to slow attention to global warming so that they continue to milk the profit from the existing oil-based system.

And that slowness has led to at least a ten-year delay in us addressing this problem. That’ll be a profound consequence to much of America.

We’ve heard it said that the people who are true constituents are the people that contribute money. Then, with publicly-financed elections, we become the real constituents in that model.

Well, I think the ideal way to fund elections would be the Barack Obama way, but that just won’t work when you are not dealing with a Barack Obama at the Presidency level, or at Senate and House levels. Because there’s just too much money, and nobody’s going to be able to inspire it. So, I think what you want is a system where everybody’s invested, but nobody has disproportionate influence such that the Congressperson can’t sort of make a decision on the basis of what the right answer is. So, for example, [Bruce Ackerman] and [Ian Eriz], professors at Yale, have this proposal for red, white, and blue dollars, where the government basically allocates about $100 or $200 per person.

And using their ATM card, they can give this to whatever candidate they want. And that’s how you get money to run an election. And at that level, that would actually be a substantial increase in the amount of money candidates would have to run an election, and everybody would feel like they’re directly invested interest. That might be valuable and make people feel like they’re part of a system. But, the critical thing is on the other side. It’s on the demand side, where members need not to think that they’ve got to worry about what they’re going to say affecting money.

They need to worry about what they’re going to do affecting votes. That’s democracy. But, worrying about whether they’re going to get money from the oil interests, or the banks, or the trial lawyers, that’s not what they should be worrying about.

What do special interests get in exchange for their political contributions?

Well, first it’s certainly worth the investment. The one thing we can count on businesses to do is to figure out where to spend their money in a way that gives them the highest return. And in fact, the amount they’ve got to spend in Washington relative to the return is tiny. So, that’s the dynamic that I think increasingly they recognize. To invest in new drugs that figures out some new solution, that’s very expensive and it’s a very uncertain return.

But, to invest in increasing the patent term, that’s a pretty high return and a pretty certain investment. But what do they get? Well, at least they get access, and in Washington access is everything, right? So, if you come in and you want to speak to a Congressman, and you don’t have some connection that makes it clear that you actually are a potential resource for money you’re not going to get time with anybody who wants to talk about any issues, because they’ve got to devote their time to people who can actually leverage the connection into money.

Now, it’s never crudely done – or if it is, it’s criminal – but you don’t have to have an agreement or a discussion for it to be understood what’s going on. And they’re pretty good at figuring out what’s going on without anybody saying it.

Is institutionalized corruption being taught at schools?

It’s certainly nothing that goes on in the law schools. I don’t know if it goes on in business schools. But it is an interesting contrast. I think about the project of detailers in the pharmaceutical industry, which are people who go to doctors and try to convince doctors to try certain drugs. And what they’re trying to do is basically market new, on-patent drugs, to avoid people using generics or drugs going off-patent. And if you read detailers accounts of their jobs, they’re exploiting the fact that they’re trained to market and negotiate and basically persuade, and doctors are not.

So, they’re taking advantage of the fact that doctors think they’re dealing with somebody who’s interested in the science of the drug – like, what works and what doesn’t work – when in fact they’re dealing with somebody who’s just marketing. And so, they’re easily manipulated by these people, because the professionals have all the skill.

Why does your “Change Congress” pledge include the promise not to access PAC or lobbyist money?

So, what we’re looking for is both long-term and immediate changes to increase trust in government. So, if we had public financing of campaigns, the pledge about PACs and lobbyists would be meaningless. But, until we have that, I think a lot of people want to have a clear signal from their member that they’re a clean-money candidate. Now lobbyist money and PACs is an imperfect way to get to clean candidates, because a lot of PACs are harmless, and the actually amount of money lobbyists give is small. But, if you take a pledge not to take money from lobbyist and PACs, then you’ve devoted yourself to raising money not from 300 people in your district, or a thousand people in your district, but 30,000 people in your district.

And so you’ve got to force yourself to connect to a broader range of the district, if you’re going to succeed. Now, that’s difficult for a lot of people, and in some races it’s suicide to imagine doing that. So, I don’t have a very strong normative view that says you’re evil if you don’t take this pledge. But where people take the pledge, I think they are really demonstrating a commitment to how much better government could be.

Do lobbyists have a legitimate role in our democracy?

I think the lobbyists’ role is essential. I think we will always have lobbyists and they should be well-paid and highly-qualified, just like I think lawyers at the Supreme Court are essential. But if a lawyer at the Supreme Court said that he needed the right to give Justice Scalia $10,000 or to give $10,000 to the Justice Scalia Retirement Fund, I would think he’s gone off his rocker. Yet that’s what lobbyists think they must have the right to do in the context of what Congress is doing. My view is, they have an extremely important role in educating and providing resources about public policy issues, and helping a Congressman push an issue through Congress – that’s all important and valuable – it just crosses the line when you’ve got a system of the Congressmen depend upon the lobbyists in order to raise money to stay in their job. Because then there’s no plausible separation here at all.

Do you think whoever gets in the White House, no matter how dedicated they may be to publicly financed elections, is that going to fix the problem?

Well, I don’t think that any President alone can change the system. And especially a President because on day one the President needs this Congress. And if this Congress is embedded with anti-reform ideas, what can you do? I do think there’s an opportunity if a substantial number of reform candidates are elected, that Barack Obama would have the chance to push the bill, which he cosponsoring with Senator Durbin, and that would radically change things overnight. It would have the end to a substantial amount of the corrupting influence in Congress.

It wouldn’t be the end of the problems and it wouldn’t be the end of stupidity. It wouldn’t be the end of improper influence, but one important dimension of improper influence would be removed. But it’s partly because I think that a President like Obama needs a different Congress that we’ve started this “Change Congress” movement, which is bipartisan recognition that we need to focus on reforming the institution of Congress.

And to do that in a way that is not necessarily tied to any particular political candidate, for President, so that there’s the will in Congress to affect the change that a President [then] pushes himself.

We’ve heard that “democracy is not a spectator sport.”

Yeah, I think that a very important principle is that politics is what people do. One of the big problems with lawyers – especially liberal lawyers like me – is that we think that the way you solve social problems is to race to the Supreme Court. When the reality is, you only solve social problems by getting people involved in actually solving them. Now, I think the big problem we face right now is, people don’t want to get involved because they don’t think there’s a reason to get involved, because they think the game’s fixed. And if the game’s fixed, why waste your time?

You’ve got kids, and you’ve got your job, and you’ve got other things to do. If we could change that perception, if they could believe that getting involved, pushing for an issue actually might have a chance of bringing it about – or, if they succeed, it won’t be undercut by some secret deal worked out in the back rooms by a bunch of bundled contributions – more people would get involved. It’s not that people hate democracy. They hate wasting their time. And in this system, it’s a waste of time to get involved.

Is there something I haven’t asked you?

The dynamic is one that both sides depend upon. So, you’re running for election, you’re chairman of the committee, you’re chairman of some telecommunications committee. You call AT&T’s political director, and you say, I need support in my campaign. Now, what is the political director supposed to do? He knows that if he doesn’t help you, then the next time – whether explicitly or not – you need something from him it’s going to be harder for you to get it, right?

So, there’s this almost extortion or implicit extortion, where the government turns to the private person whom he’s regulating and says, you’ve got to help me get into office. And in some sense, the private person likes that, because he likes having the favor that he can cash in on later on. So, this dependency goes both ways. There’s a very important lesson in this, especially for conservatives. Al Gore, in the beginning of the Clinton administration, tried to create Title VII, which would be basically regulating the Internet.

And it would regulate the Internet in a deregulated way. So, right now, cable is regulated under one, Title VI, and another part of the Communications Act regulates telecom. And so, the idea was to take both of them and put them in Title VII, and deregulate it. His staff took this idea to the hill and said, we’re going to deregulate the Internet. And the response was, hell, no. How are we ever going to raise money from these companies if we deregulate them?

So, the point is, conservatives want to know why government is so big? It’s because Congressmen have to get elected. They build the government so that its fingers reach, as broadly as they can, so that there are more people to call who you’re regulating who you can say, I need some support for this campaign. So, it’s easier to actually get support for your campaign. Cut off privately-financed elections and it’ll be easier for Congressmen of think, well, maybe we actually don’t need to be regulating here. Maybe we can carve back regulation there.

And so the ideals of people on the right about smaller government won’t constantly be fighting against the drive to regulate in order to raise money.

This impulse of government to regulate is to be able to raise money?

I do believe that, in many contexts.

Why do special interests give money? Are we putting office-holders in a position where they have to go to deep pockets?

Well, giving money is all about getting access, and access is essential if you want Congress to do what you want Congress to do. And from the other side, they’re only to go watch or listen in directions that you’re getting money. And so it’s all about making sure that the system connects. That’s why they do it, and that’s why it’s corrosive, because instead of thinking about the wide range of issues that are there, you have this natural subconscious direction that channels you through a sixth sense towards where the money is, not the [regular sense], but where the dollars are.

Given what’s going on, how important is it to draw better leadership? Do you think public funding of elections will bring people into leadership roles based more on ideas?

Well, of course. I mean, when you start considering running for Congress, the first thing party people will do is they’ll sit down with you and say, do you understand what you’re doing? Do you understand what you’re life is going to be like? Forget the press issues. Think about, you’re going to have to be on the phone four hours a day during this election, maybe seven or eight hours a day, raising money. And most sane people think to themselves, I don’t want to do that. Why would I want to do that?

Call my friends? Call my associates? Constantly badger them to raise [money]? This is just not anything I want to do. So, people think that the job is about pushing good ideas and public policy, when the reality is the job is about the focus on raising money. So, if you eliminate that, and now you’re talking about people who have to be elected, they have to be popular enough to get initial funding, but once they’re there, they’re not worried about the money in the same way, then a different range of people would be interested in having this job.

We might actually attract people who have ideas about or experience with parts of life who right now just would never have the patience to get into this [world].

So, the point to recognize is that we’re not dealing with evil people. We’re dealing with good people, and they’re doing really hard work, and they think they’re doing the public’s good. But the reality is, because they have to focus themselves on money, the work is distorted, the tension is distorted. So, individually they’re all working hard and doing good, but overall the system becomes corrupt. So, this is good people in a bad system. And what we need to do is to change the system so the good people can have a chance to do what they want to do.

How are campaign contributions a barrier to healthcare reform, healthy food, and renewable energy?

Well, the problem of ethanol is a perfect microcosm of the problem generally. Because what you’ve got is, a very difficult public policy question. How do we deal with energy independence? And part of that public policy question is being addressed by people who have a very deep financial interest in one answer – not necessarily the right answer, but one answer – that benefits them pretty dramatically.

So, what they do is, set up the public policy discussion so it looks like their one answer is the right one. Ethanol is a perfect example of this. There’s so much hype around how great ethanol is going to be, because it benefited very well-entrenched special interests, like farmers’ interests in places like Iowa. And agribusiness interest, in just driving the development of this, never, even at the first level, evaluating this actually from a global warming perspective helped anybody. Or, thinking about the price of food is going up dramatically because of this additional demand on corn production.

Or the environment, because of the necessary affect on the pesticides, to be able to make it possible to grow this. Nobody considers those other costs because they don’t have a lobbyist in there arguing for that, because it doesn’t pay to have a lobbyist in there. So, again, if you could allow policy makers to think about this wide range of issues that they would think about if they weren’t being driven by the money here, they might have recognized why this was such a disastrous policy choice.

But they didn’t get a chance to see that because so much money was focused on getting them to miss that obvious fact.

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