Election Law Series | Lawrence Lessig, 'The Failed Branch: Is There Any Way to Fix Congress?'

Summary

Highlights

• Lessig opens by claiming that Congress is "politically bankrupt," gaining close to zero public confidence. 😬
• He argues that 'Tweedism' enables a minuscule elite to choose political candidates, mimicking an anti-democratic filter. ⚠️
• The core of his discussion revolves around redefining money's role in politics to combat Congressional issues. 💵
• According to Lessig, an effective representative democracy requires reforms in campaign finance, voter rights, and fair representation. ⚖️
• He proposes the Citizen Equality Act as a potential breakthrough to reestablish a precarious political balance. 🌟
• Lessig emphasizes leveraging federal reform measures over state and local initiatives due to the urgent need for immediate action. 🏛️

Key Takeaways

• The foundational issue with Congress is its political bankruptcy, emphasized by low public confidence. 😬
• Money in politics creates a 'Tweedism,' allowing elites to control political candidate selection. 🤑
• Reforming Congress requires innovative methods such as the Citizen Equality Act. ✨
• Systemic change is necessary to ensure a truly representative democracy. 🇺🇸
• Immediate action at the federal level is essential, focusing beyond presidential elections to address Congressional dysfunction. ⚡

Overview

Chapters

• 00:00 - 02:30: Introduction and Problem Statement The chapter opens with an acknowledgment of the speaker's assumed identity, suggesting a comfort or familiarity with the audience, as if an introduction is unnecessary. The speaker immediately delves into a pressing matter concerning democracy, indicating an urgency or importance in addressing an issue that seems to be central and perhaps foundational. This 'hole' in democracy is presented as a critical point of consideration, urging for recognition and response, which sets the stage for discussing systemic issues and potential solutions.
• 02:30 - 07:00: The Tweedism Problem The chapter titled "The Tweedism Problem" discusses the political bankruptcy of Congress. It is described as a failed, crippled, and corrupt institution incapable of performing its duties effectively. The public's lack of confidence in Congress is highlighted by Gallup's ratings, showing that people's trust has fallen to the margin of error.
• 07:00 - 12:00: Effects of Money in Politics The chapter titled "Effects of Money in Politics" discusses the pervasive lack of confidence in Congress, attributed primarily to the influence of money in politics. The speaker makes a point that referring to this issue merely as 'money in politics' may be an oversimplification or a misdirection. They suggest that the conversation should be approached with a broader perspective or at a different level of generality, indicating the complexities surrounding the issue which might not be adequately addressed by simply labeling it as a matter of money influencing politics.
• 12:00 - 20:00: Corruption and Consequences of Tweedism The chapter discusses the issues surrounding democracy, with a specific focus on institutional problems. It highlights that while money in politics is a significant issue, it's only part of a broader pattern affecting Congress. The narrative includes a reference to economist Ronald Coast, suggesting that a problem's cause is also its potentially rectifiable aspect.
• 20:00 - 33:00: Reforming the Political System The chapter titled "Reforming the Political System" addresses the profound impact of money on political issues. The speaker suggests that financial influences are at the root of many problems within the political system, implying that addressing these monetary elements could lead to significant improvements. The central focus is on helping the audience to perceive and understand the role of money in politics from a new perspective, framing it as a critical aspect worth reforming.
• 33:00 - 56:00: Challenges in Implementing Reforms The chapter titled 'Challenges in Implementing Reforms' starts with a reference to Congress and moves to a play on words called 'tweedism'. This section introduces the topic by mentioning protests in Hong Kong, which were led by students, including high school and college students.
• 56:00 - 58:00: Potential Solutions and Conclusion The chapter discusses the involvement of elementary school students and their parents in a protest against a proposed law by the Chinese government concerning the selection process of the governor or chief executive of Hong Kong. This law aimed to establish the selection of the chief executive by universal suffrage, with nominations made by a broadly representative nominating committee in line with democratic procedures.

Election Law Series | Lawrence Lessig, 'The Failed Branch: Is There Any Way to Fix Congress?' Transcription

• 00:00 - 00:30 okay so uh usually the person speaking is introduced um but I don't even get an introduction anymore so uh you're supposed to know who I am um I'm going to pretend you do and I'm just going to start um so here's the fundamental fact we have to find a way to acknowledge and respond to that at the core of our democracy there's a hole where the framers imagine there'd be a
• 00:30 - 01:00 congress a hole a failed institution a crippled and corrupted institution incapable of doing its job bankrupt not fiscally bankrupt but politically bankrupt gallup's confidence rating of Congress from 1973 to today captures the sense of the Public's attitude about this bankruptcy we're now just about down to the margin of error it could be
• 01:00 - 01:30 zero people out there have confidence in our Congress now if people talk about this they typically talk about it as related to something called money in politics get that cute thing politics with the dollar sign money in politics but I think it's a mistake increasingly I think it's a mistake to talk about it like that I think about I think that's talking about it at the wrong level of generality
• 01:30 - 02:00 we need to think about the problems with democracy as focused on this institution and the problems with this institution are not just because of money in politics though money shows the pattern of the problem that affects Congress generally and to invoke a little bit of Ronald Coast if the cause of a problem is the part of the problem that you can fix
• 02:00 - 02:30 then the truth about money is that money is the cause of the problems I'm going to describe because the money is the part that we could fix at least fix most easily okay now to see this I need you to see this problem of money in politics a bit differently and that's my objective in the next chunk here to give you a away to think about what the problem with money in politics is that helps you see this more General problem
• 02:30 - 03:00 with Congress generally I'm going to call this section tweedism I wish I had a Tweed coat to reinforce exactly the point I'm trying to make that double anandra here will be obvious in a second but to get there we're going to start in this place Hong Kong which as some of you will remember I hope last year year and a half ago actually there was an extraordinary protest in Hong Kong led by students literally high school students college students some
• 03:00 - 03:30 Elementary School students then their parents felt guilty that the kids were doing all the works so they showed up to a massive protest to protest a law proposed by the Chinese government to govern the selection of the governor the chief executive of Hong Kong as the law proposed the ultimate aim is the selection of the chief executive by universal suffrage upon nomination by a broadly representative nominating Committee in accordance with Democratic procedures so nom nomation of candidates
• 03:30 - 04:00 by a nominating committee a two-stage process that would identify who got to run so that the citizens would know who they had the right to vote among this nominating committee was going to be composed of 1,200 citizens which means out of a population of 7 million is about 0.2% of the population of Hong Kong would have the right to select the candidates that the rest of Hong Kong could vote among now 0 2% is a tiny
• 04:00 - 04:30 number see there it's really tiny on that screen if you think about it in relation to all the people in Hong Kong this is what 0.2% looks like a tiny tiny fraction that has the right to select the candidates that the rest of Hong Kong gets to vote among and the reason the protesters were protesting is that they believed this filter would be biased as they put it the 0.2% would be dominated by a probing business and political Elite the
• 04:30 - 05:00 99.98% would be excluded in this critical first step with the consequence obviously of producing a democracy responsive to China only okay now it turns out that China didn't invent This brilliant democracy destroying technique unless Boss Tweed was an ancient Chinese prophets because as BOS Tweed used to say quote I don't care who does the
• 05:00 - 05:30 electing as long as I get to do the nominating okay so the idea in this genius Insight is a fundamental democracy design if you look at democracies across the world today this design where a small set controls the effective nominating process which then sets up choices for the public to select among I'm going to call that
• 05:30 - 06:00 design tweedism tweedism and in tweedism the Tweed select and the public elects and that creates a filter in this process with the consequence of that filter being obviously to produce a system that's responsive to the Tweeds only so think about the system Texas had for selecting candidates to run in the uh general election in 1923 Texas had a
• 06:00 - 06:30 law the law said that in the Democratic primary the only party that mattered it's hard for you to imagine that the only party that mattered in Texas was the Democratic party but it's true during a period of time in our history Texas was dominated as was the South by a very different Democratic party the law in 1923 said the only people who could vote in the primary were whites the allwhite primary was a technique used to exclude blacks from this process of selecting candidates in the primary they could vote in the general election
• 06:30 - 07:00 if they could get registered or clear whatever hurdles there were there but in the primary the only vote that matters they were excluded so this two-stage process an example of tweedism with a 16% of the population kicked out from this critical first step it had the consequence obviously of producing a democracy responsive to whites only okay these cases are pretty clear I don't think there's anybody who really defends the characteristics of these democracy denying
• 07:00 - 07:30 designs but I suggest then if they're clear so too should this be clear we take it for granted in the United States that campaigns will be privately funded but we should recognize that funding is its own contest funding is its own primary funding takes time members of Congress and candidates for congress Ben any were between 30 and 70% of time Dialing for Dollars calling
• 07:30 - 08:00 people that's a telephone in case some of you kids don't realize Dialing for Dollars calling people across the country theyve never met to raise the money they need to get back into Congress or get their party back into Power BF Skinner giv 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 to survive this is a picture of the modern American Congress person as the modern American Congress person learns which buttons he or she must push to get the sustenance his or her campaign needs to survive this process this life has an
• 08:00 - 08:30 effect on these members 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 xfiles shape shifters as they constantly adjust their views in light of what they know will help them to raise money not in issues 1 to 10 but on issues 11 to 1,000 lesle burn a Democrat from Virginia describes that when she went to Congress she was told by a colleague quote always lean to the green then to clarify she went on you know he
• 08:30 - 09:00 was not an environmentalist so the point is this is a primary two it's the money primary it's not a white primary it's a green primary it's the first stage and a two-stage process that candidates must get through to be able to be candidates that the rest of us get to vote among so if that's the structure we should worry a bit about who the funders are well we can think first about the biggest funders in 2014 the top 100 contributors gave as
• 09:00 - 09:30 much as the bottom 4.75 million contributors or in the early stage of this election cycle 158 families had given half the money by October that presidential candidates had raised those are the biggest funders but I actually don't think those are the ones we should be focused on when we think about Congress we should thinking be thinking about the relevant funders not necessarily biggest but the people
• 09:30 - 10:00 who give big enough to matter to members as they're Dialing for Dollars raising the money they need to get back to Congress so let's just pick a number $5,200 is the amount the maximum amount you could give in 2012 to one Congressional candidate in the primary and general election in 2012 it turns out there was 57,8 74 Americans who gave $54 $5,200
• 10:00 - 10:30 and for the math geniuses in the room what you're whizzing in your head is recognizing is 57874 turns out to be 0.2% of America .2% of America are the relevant funders in this first stage of this two-stage process to select the candidates who the rest of us get to vote among this tiny fraction of the 1% we could say this Chinese
• 10:30 - 11:00 fraction of the 1% and effectively unrepresentative fraction of the 1% dominate this first stage that is tweedism in America today now what tweedism is is corruption uh but I don't mean by corruption criminal corruption it's not corruption predicated of members I'm not saying individuals in Congress are engaging in criminal acts it's Corruption of a a system it's Corruption
• 11:00 - 11:30 of the system of representative democracy the framers gave us not a democracy they gave us what they called a republic or more appropriate font might be something like that a republic by which they meant a quote representative democracy and by a representative democracy what they meant as Madison explained in Federalist 52 would be a government that would have a branch that would be quote dependent on the people alone alone but our system is not
• 11:30 - 12:00 dependent on the people alone they're not quite alone we the people instead in addition to the people there are these Tweeds Congress is dependent on the Tweeds as well as the people and of course the interests of the Tweeds are not representative sample of the interests of the people so that's a conflicting dependence and therefore a Corruption of the design the framers gave us now it is tweedism is a
• 12:00 - 12:30 corruption even if it does not corrupt the voter this election cycle has given rise to an incredible amount of non secator speech about this issue people for example look at the race that Jeb Bush has just failed to win where he had raised more than $110 million now said to be wasted because he could never get more than 5% in any poll some people run around and say see that
• 12:30 - 13:00 shows money doesn't matter money is not a problem we don't have to worry about money but that's fundamentally missing the point the corruption is not in the spending of the money the corruption is in the fundraising of the money it's the process of raising the money that is changing the candidates it's not the process of spending the money that's changing necessarily the voter it's not the people it's the politicians who are
• 13:00 - 13:30 corrupted and nothing in the history of Jeb Bush suggests that he was any less corrupted than anybody else by this process and finally tweedism has consequence it affects the political process so one way it affects the political process is that it helps to polarize Congress because think about the psychology of fundraising the best way to fundraise in Congress is to vilify the other side Chris Murphy
• 13:30 - 14:00 the youngest member of the United States Senate senator from Connecticut reports that when they send out emails attacking the Republicans he's obviously a Democrat they raise twice as much as they raise when they send out emails praising the work of the democratic party and that's not because the Democratic party is necessarily pathetic it's true the other way around too so the point is this process of raising money builds a natural incentive to
• 14:00 - 14:30 vilify to further separate members of Congress Joe Mansion West senator from West Virg describes the money has infiltrated and driven us apart it's the natural process of humans in a process where they're forced to raise money what by whatever means possible so number one it's exacerbating the problem of polarization number two it's producing an unrepresentative Congress as they are focused as they are on this interest in
• 14:30 - 15:00 raising money very famous Princeton study which of course being a Harvard Professor I'm not allowed to talk about much so we'll put it off the stage really quickly but a study by uh Martin gillens and Ben Page um uh I think Professor gillan's daughter is here not necessarily here but she's here at the law school but anyway this is an amazingly important study um where this perhaps the largest empirical study of actual Decisions by our governments um in the uh uh past 40 years relating
• 15:00 - 15:30 the actual decisions of our government to the attitudes of the economic Elite the attitudes of the organized interest groups and the attitudes of the average voter and what they find with respect to the economic Elite is that the as the percentage of economic Elite who support something goes from 0% to 100% the probability of that thing being enacted goes up that's intuitive that's the way it should be the more who support an idea the more likely it is it gets passed same thing with organized
• 15:30 - 16:00 interest groups the more who support an idea the more likely it is it will get passed oops I guess I should show you that graph there it is um and then finally here's the graph of the average citizen it's a flatline as you can see literally and figuratively what this is saying is as the percentage of average voters support something supporting something goes up from 0% to 100% it doesn't change the probability of
• 16:00 - 16:30 that thing being enacted there's no statistically significant connection between what the average voter thinks and what we do it's only if the average voter happens to agree with what the elites or organized interest groups want that that thing actually gets done as they put it when they describe it 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 a minuscule near Z statistically non-significant impact
• 16:30 - 17:00 on public policy in a democracy right this is the picture you were taught in elementary school of our democracy right there we are that's kind of Middle America there driving the bus we're supposed to be driving the bus here's the reality of our democracy the steering wheel has come removed from the bus we're no longer driving the bus the drive bus is being driven for us in this democracy and then finally Point number
• 17:00 - 17:30 three what this tweet ISM yields is increasingly distracted political Elites and what that yields is an increasingly angry and frustrated democracy because as they are distracted by the money Republicans and Democrats alike so for example Paul Krugman in August wrote about the fact that the candidates for president the Republican
• 17:30 - 18:00 primary were talking about ideas for reforming Social Security that the base of the Republican party did not like and he was puzzled about that as he put it what's puzzling about the renewed Republican assault on Social Security is that it looks like bad Politics as well as bad policy Americans love social security so why aren't the candidates at least pretending to share that sentiment and the obvious answer is that it's all about the big money because the
• 18:00 - 18:30 suppliers of the big money in the Republican primary do want Social Security fundamentally changed so the candidates are bending towards what the funders would want and not what the voters would want or then just a couple weeks ago he did the same thing um February 22nd talking talking about Marco Rubio he says in short Marco Rubio is pedaling crank economics what's interesting however is why you see he's not pandering to ignorant voters he's
• 18:30 - 19:00 pandering to an ignorant Elite so when Mr Rubio genu Flex at the alars of supply side economics and hard money he isn't telling ordinary Republicans what they want to hear by and large the part's base couldn't care less he is instead pandering to the party's Elite consisting mainly of big donors and the network of aaric and think think tanks media organizations and so on so the point again is that the candidate B to the funders the elit and ignores the
• 19:00 - 19:30 base the same point can be made the other way around think about the increasing criticism of secretary Clinton's relationship to Big Banks and payments from Big Banks signaling an attention to the interests of big banks that frustrates the base of the democratic party in both cases this reality alienates the base and that alienation creates a condition which is right for the rise of people like Donald
• 19:30 - 20:00 Trump and Bernie Sanders even if Bernie's Fallen back just a bit okay so this is the story of tweedism we've allowed a system to evolve that allows a tiny fraction extraordinary power in the political process and the consequence that of that is a system that is not responsive not representative and increasingly frustrated Democratic base now if you think about why that works like that and generalize it a bit we can recognize that this
• 20:00 - 20:30 polarization this dysfunction the pathologies here are a byproduct of a core feature Dash bug of the current system it is its unrepresentativeness and its unrepresentativeness is caused not just by money and politics but it's caused also by other features SL bugs of the current design of our political process so think about
• 20:30 - 21:00 safe seat Jerry mandering ISM this too big to fit on the screen but let's say Jerry ISM it's great piece by Christopher Ingram in the uh Washington Post uh referring to the crimes against geography which Define the current way that we architect districts in the House of Representatives crafting districts of course that's not a community that that district is representing that's a design to make it possible for that representative to have a safe seat but
• 21:00 - 21:30 the consequence of safe seats are Representatives who are less responsive to a full range of interest in a particular District so in the 435 seats in the House of Representatives right now at most 90 that's probably 50 according to um uh those who have studied this more recently but maybe 90 of these seats are competitive meaning in only 90 seats does the incumbent have
• 21:30 - 22:00 a chance of being thrown out by the other party so that means in 345 seats if you're a republican in a safe Democratic seat or a Democrat in a safe Republican seat your representative doesn't care about you because there's no chance that your views will matter to the outcome of the election the only thing your representative is concerned about is somebody from his or her own party who might decide to challenge that representative that person's a real
• 22:00 - 22:30 threat so there's lots of attention to the extremes on the right or the extremes on the left but not to the unrepresentative C uh citizens in the middle and what that means is that there are 89 million Americans who are effectively unrepresented in our system right now by the House of Representatives because we've designed a system for representativeness that destroys their possible opportunity to matter they are unrepresentative and that's a feature
• 22:30 - 23:00 that's a way in which this system is unrepresentative it's also caused by the unequal freedom to vote that we've allowed to evolve inside of our system the Brennan Center did a study of the 2014 election um uh um process and found this extraordinary development of long lines across the country in uh context of voting we found uh more than 10 million Americans had to wait at least 30 minutes to vote and of course that
• 23:00 - 23:30 correlated directly with the race of the district um which of course is an indirect proxy for the party represented by a district so that meant that if you are African-American you are much more likely to have to wait to vote than if you are white now if you're a middle class or upper middle class person with child care and an iPhone you might think okay what's a half an hour going to matter it's okay
• 23:30 - 24:00 for those people to have to suffer that kind of weight but for others this idea of waiting when you don't have child care when you've got two jobs when you can't afford to hang out just for the chance to vote is effectively a pole tax which working Americans increasingly cannot afford and it's no accident the Striking thing about the Brennan St study was that they looked at Ohio which received three billion dollar in funding after the 20 uh 2004 election to upgrade
• 24:00 - 24:30 their systems and what they found was in African-American districts the upgrade was a downgrade and in white districts the upgrade was an upgrade which means this is self-consciously designed to increase the burden on some people to vote outrageously in a system intended to produce representative democracy all three of these features defeat the idea of representative democracy the idea at
• 24:30 - 25:00 the core of what a republic needs and all three need fundamental reform if we're going to get close to the idea of what a republic is supposed to be so what would reform look like well the core thing to recognize about the problem of our democracy is that the problem is an expression of inequality I don't mean inequality of wealth though of course the inequality I mean contributes to the inequality of
• 25:00 - 25:30 wealth I mean the inequality of citizens the inequality of citizens in a democracy that doesn't give citizens equal power in the political process regardless of the equality of wealth and the solution to that inequality is obviously to try to produce equality in the political system the equality of citizens inside the political system a system where all were to be the system was to be dependent on the people alone which just to be clear as Madison put it in Federalist 57 by the people he meant
• 25:30 - 26:00 quote not the rich more than the poor yet of course the system we have right now is a system intended to give the rich more power than the poor so how would we solve that how would you create this idea of equality of citizens well technically you could say what would it take to solve it and strikingly all it would take take as a statute all it would take is a statute
• 26:00 - 26:30 to in my view solve 85% of the problem um let's call it the citizen equality act so the citizen equality act will have three parts first it will change the way campaigns are funded so that instead of this highly concentrated large dollar funding system we produce bottomup Public Funding of Elections either through vouchers or matching funds in my book uh Republic loss I describe a $50 voucher um Richard
• 26:30 - 27:00 painter who some of you I know um have seen and and read this book um he's a conservative who was the ethics Zar in the Bush Administration describes the system for a $200 voucher so the point is every voter gets a voucher which they get to use to fund campaigns of congressional candidates they support and what that does is change the business model of fundraising you're no longer focused on the large money you're focused on money from everybody and proposals like the American
• 27:00 - 27:30 anti-corruption act or John sarban governed by the people act are driven by precisely this idea bottomup Public Funding that creates a wide diversity of people funding campaigns instead of the concentrated tiny fraction of Tweeds who funds campaigns now that's point one point two of the citizen equality Act is to try to create equal representation so fair vote and uh this great book by m Michael golden unlock Congress describe a system which
• 27:30 - 28:00 obviously lonni gineer has talked about something similar to this for a long time of producing in the House of Representatives multi-member districts like the framers had with ranked Choice voting so that a district might have five representatives and with rank Choice voting you rank your preferences which means that minority groups within that District I don't mean racially minority I mean political minority groups too would have a shot at El ing Representatives regard so long as they
• 28:00 - 28:30 represent anywhere above 10 to 15% of members in that district with this would produce effectively in the House of Representatives proportional representation which means we would have a House of Representatives that actually represents America that looks like America that looks like the diversity of America where there are conservative Democrats and Liberal Republicans where there's a mix that isn't this extreme polarization that's produced in part by the way we've crafted the rules for selecting Congress and what most people
• 28:30 - 29:00 don't recognize is that the constitution explicitly gives Congress the power to do this independent of what the states might decide to do when the states District their own State Legislative districts Congress has the power tomorrow to change the way these districts are drawn and then finally changes to bring about equal freedom to vote um the Voting Rights uh advance Act of 2015 which tries to get over some of
• 29:00 - 29:30 the problems created by the Supreme Court in interpreting um earlier voting rights protection acts Bernie Sanders democracy day all techniques for making the barriers to voting lower so that all of us get to participate um equally in the process of voting all three of these need to be pursued together this is the critical point that we're not talking about simply reforms of money we're talking about a reform to produces the president puts it a better politics and indeed what was striking about his State of the Union was that for the first time
• 29:30 - 30:00 the president was identifying the package and not just the single ideas I'm going to give you one minute of this address I'm addressing the American people now if we want a better politics it's not enough just to change a congressman or change a senator or even change a president we have to change the system to reflect our better selves I think we've got to end the practice of drawing our congressional districts so that politicians can pick
• 30:00 - 30:30 their voters and not the other way around let a bipartisan group do it I believe we've got to reduce the influence of money in our politics so that a handful of families or hidden interest can ban our election
• 30:30 - 31:00 a and if our existing approach to campaign Finance reform can't pass muster in the courts we need to work together to find a real solution because it's a problem and most of you don't like raising money I know I've done [Applause] it we've got to make it easier to vote not harder we need to modernize it for the way we live now so of course after he said this all of
• 31:00 - 31:30 the groups that are interested in these separate movements identifi the greatness of the president talking about changing the way campaigns are funded or talking about changing the way districts are drawn or talked about changing the ease with which people get to vote but the point is it's not these three separately what's important about what he has identified is the idea of a democracy movement thinking generally about how to restore core idea of a representative democracy which is equality so that's how you would do it
• 31:30 - 32:00 technically but the challenge here is not technical the challenge is political because the real problem a problem which I've become incredibly sensitive to is who is it within our political system who's going to bring about such a change What entity right it's not going to be the Supreme Court Supreme Court doesn't have the power to order Public Funding of elections it's not going to be Congress
• 32:00 - 32:30 Congress focused in this 2-year election cycle does not have time to think about how to change the institution from the moment of an election they start raising money for the next election they're not going to be changing the rules they're going to be focused on how to win according to the existing rules George Mason at the Constitutional Convention at the Constitutional Convention um two days before The Constitution was published had an idea he noticed that the only ways to amend the Constitution then in the draft of the Constitution were for Congress to
• 32:30 - 33:00 amend the Constitution and he said well what if Congress is the problem he said no amendments of the proper kind would ever be obtained by the people if the government should become oppressive that led to the framers putting the convention clause in the Constitution to give the states the power to call on Congress to convene a convention for the purpose of proposing amendments a process Congress couldn't control but but the politics around the convention process right now have become so uh
• 33:00 - 33:30 vicious that I think it's incredibly unlikely we're going to see a cross part of the convention that have the opportunity to address these problems so what about a president well the key to recognize is that an ordinary president and I don't mean like a mod uh medium like talented president I mean just a normal president you know the ordinary model of being president is not going to take this problem on because to take on this problem is to take on Congress and to take on Congress is to take on your own party to take on your own party is to guarantee you'll get nothing done and
• 33:30 - 34:00 to get nothing done is to guarantee you'll be a one-term president which is to mean you are a failed president no normal president will take this on because presidents depend upon Congress and even in the process of running for president you depend heavily on the existing Congress because to become credible as a candidate is about rallying allies from the existing Congress to your side unless you're a billionaire or a um uh Carnival Barker or something like that um and that
• 34:00 - 34:30 process itself is not going to happen if your whole focus is the failure of Congress so that L me think well what if we could have a referendum we know from polls if we had a referendum for these changes America would vote for these changes of course we don't have a referendum power uh probably a good thing we don't but there it is we don't have a referendum power so we don't have the opportunity for a referendum directly so that led me to think well what if we had a different kind of referendum kind of referend to president who said look my one purpose is to make
• 34:30 - 35:00 these changes I guarantee this is what I will do and so you know that if you elect me this will happen um if there's any hope of it happening at all well it turned out that wasn't a terribly effective strategy either but you know in the middle of hearing everybody tell me how stupid a strategy this was you know obviously this couldn't work the phrase that kept on coming back to my head was a phrase
• 35:00 - 35:30 first uttered by the great Jon Snow so here's that phrase you're right this a bad plan what was your plan see CU that's the question you know what's your plan I mean we don't have the option of not fixing this if we don't fix this then we're screwed you're screwed more particular particularly not my generation like all the problems we face I'm going to be dead long before they're
• 35:30 - 36:00 real problems but you you face these problems climate change a Health Care System we can't afford jobs that are not growing all of these are problems you bear and if we don't solve it with this plan what is the plan what's the way what's the strategy because it's just possible that we found ourselves in the middle of a constitutional republic that doesn't have the means to save itself unless one of you comes up with a genius way around it okay that's all I'll say happy to take questions or
• 36:00 - 36:30 abuse or whatever else you'd like to give but thank you very much so there miks um raise your hand and I'll give you a mic hi my name is Steve Salo my 3L here do you think that uh a better strategy is to focus on reforming the national
• 36:30 - 37:00 election system or would it somehow be more effective to focus on cities and states well so I am incredibly supportive of all the great work being done locally but here's my skepticism about that strategy number one we don't have 20 years to solve this problem you know we're not going to pass climate change legislation until we solve this problem we're going to get affordable health care for everybody until we solve this problem the idea taking on Wall Street before we tell solve this problem
• 37:00 - 37:30 is crazy talk right all of the fantasy politics you see when you see debates on television between presidential candidates is fantasy politics until we solve this problem we can't wait for 20 years to solve this problem that's Point number one but here's the more troubling point I actually think there's a difference with the problem of Congress and the problem at many state legislatures you know I think California and New York and Illinois are basically like Congress so I'd love to see Public
• 37:30 - 38:00 Funding in all of those contexts but what I worry about is that you know if you go to Vermont and you get the Vermont legislature to pass Public Funding and those Vermont legislators then get elected with Public Funding I fear people in Vermont will look at the Vermont legislature and say I don't really see much difference here and so when they don't see much difference there they then say I'm not sure Public Funding is actually done anything for us so then when we say to them support Public Funding at the federal level they'll say why it doesn't seem to matter much and the point is it might not matter much in a relatively well functioning
• 38:00 - 38:30 democracy which many state governments small state governments are so I worry that we divert so much of our energy to a solution that in the long run might weaken the opportunity for the solution we need at the federal level and those two things together say you know people have to work on what they want to work on but I have to I want to work on solving the problem of Congress hand right there
• 38:30 - 39:00 sorry um democracy spring is organizing they said they have 4,500 people pledged to sit in at the capital and I had pledged and they called me and they said are you ready to get arrested for this and I I was thinking well I've never been arrested before and I don't like you know the style of protesting with getting arrested at the capital but do you think we should bring a bunch of hls people down there and do that or do you think that's not a worthwhile initiative well so I'm going to be part of the Marchers um I teach four days a week so
• 39:00 - 39:30 I can't hang out there but I'm going to go down to the weekends to march to it's the march from Philadelphia to Washington and then I'm going to show up and and be as part of the presence that they are placing in front of the capital and if the capital police are stupid we will get arrested but you know that's stupidity I don't think that's you know so I I intend to exercise the rights which I think we all have to make Congress address this issue directly and so I'm a big supporter of democracy
• 39:30 - 40:00 spring and I want democracy spring to help kick off this movement to focus us beyond the candidates running for president to the really core change that we've got to have because I think we get so distracted by this fight for the presidents that we miss the real change has got to be a change about Congress not the president and that's exactly what democracy spring and uh then the next there's another democracy some democracy Awakening that happens just after democracy spring has happened in
• 40:00 - 40:30 April as well uh I'm curious what you think uh I guess maybe one part of the presentation that we didn't hear too much about is the voters and I think particularly on the Republican side I can't remember who coined it maybe Ron Brownstein or someone said that basically the Republican part is at kind of a post policy moment to the point where voters aren't really responding to policies like you were mentioning with Krugman and Rubio on Social Security they're responding to attitudinal stuff um you
• 40:30 - 41:00 know emotion anger I'm curious where you know I assume that's related to this I can't quite place exactly how yeah I I it's that's directly the section um that you pointed to that I think explains the relationship where you see an angry and frustrated public because they look at a government that they don't think is responding to them and we can show them it's not responding to them right the combination of the uh Paige and gillan's study and this presidential election together
• 41:00 - 41:30 is a clear demonstration of how people look at this process and say this just isn't working so you know I know people sneer Donald Trump supporters and I am violently opposed to Donald Trump becoming president because of his crazy talk in a million directions but one of the biggest reasons he is loved on the right by the base of the Republican party is because people think this guy is not bought and can't be bought and I'm willing to accept insanity if I could get a president who's not bought
• 41:30 - 42:00 now that should be telling us something it should be telling us that boy if we had uh you know other politicians who the public thought were not bought um we'd begin to change people's relationship to politics now Donald Trump's only solution to this problem is to elect billionaires you know and my view is we fought a revolution against that idea that's why we gave up aristocracy and we're supposed to have a system where you don't have to be a billionaire to run for president certainly to run for Congress so the only way to solve this problem really is
• 42:00 - 42:30 to change the way we fund elections to have Public Funding of Elections and the cost of doing that is Trivial compared to the immediate benefit that you would get by doing something like that so what we need are politicians willing to talk about the real solution and to make that happen U hi is this on yep uh you mentioned democracy vouchers in your presentation how do you respond to the criticism of democracy vouchers that
• 42:30 - 43:00 essentially says while they might change the temporality of the current nominating process they don't fundamentally alter the current nominating process because in post Citizens United World with unlimited independent expenditures by super Pacs the super Pacs are just going to spend their money to uh select the candidates that to succeed in the voucher process as opposed to later in the actual primary nominating process yeah so um you one striking thing about this presentation is you didn't see the word citizens united anywhere right um and
• 43:00 - 43:30 that's intentionally because I think that we are um being con we're being Mis misdirected by this by this fear around citizens united in super Pacs not because I don't think it's a problem I think Super Pacs are serious serious pathological problem inside of our democracy but because I think it's going to be solved um long before we get a constitutional amendment you know for law Geeks this is clearer and you know
• 43:30 - 44:00 some of us are law Geeks right but the point is um citizens united established the constitutional right to spend unlimited amounts of money the DC circuit turned that into the constitutional right to give unlimited amounts of money the one doesn't follow from the other the Supreme Court never reviewed speech now the case that made that uh made that move so the Supreme Court has the means to stand by citizens united and reverse
• 44:00 - 44:30 the super Pacs uh and they have the motive because all but one or two of those justices look at what they've wrought and think this is a disaster and there is now litigation working through by public interest L litigants to set up the case to get it to the court so the court can finally say look you didn't mean to say super Pacs what you meant to say was you know people can spend unlimited amounts of money and if would that be a terrible thing well if it's transparent which of course it's not yet because of stupid
• 44:30 - 45:00 IRS rules that have not been yet fixed if it were transparent it's not that I like that system but I'm not sure it' be a ter I'm not sure it' be disastrous because the prediction that many of us made after citizens united that you'd see billions of dollars being spent by corporations at least so long as there was super Pacs turned out to be false corporations don't spend money in politics because they've discovered the high cost to free speech if they start supporting political candidates like Target did when it supported the
• 45:00 - 45:30 anti-gay candidate for governor in Minnesota they find their stores picketed across the country so they don't want that so what they find what they want is a way to indirectly support and that's what super packs are but I actually think we'll be able to solve the Super PAC so yes we've got to solve that problem too but we've got to stop thinking that we solve the problems of American democracy by appealing to five justices on the Supreme Court we've got recognize the only way we're going to solve the problems of American democracy is to build a democratic movement to
• 45:30 - 46:00 demand democracy again and once we do that you know the history of the Supreme Court is it never lives in la la land for long and they will come around to giving us a constitution that Accords with these values so that's why my movement the movements I want to participate in are about building a democratic movement to bring Democratic change with a small D and leave it to the lawyer and the Brennan Cent are great lawyers to litigate the strategy in the Supreme Court to get the Supreme
• 46:00 - 46:30 Court to reflect what the democracy has demanded hi um I wondered if you could comment on the extent to which the US has become like a two-party state in that the Democrats and the Republicans seem to work together to pass legislation and that keeps out other parties so I think in in your personal case you couldn't get on the ticket for the Democrat
• 46:30 - 47:00 debate because it was up to the Democrats who was going to go on telly um so and if you look at things like saw loser laws where if you stand in the primary for one party and you lose you can't then stand as an independent arguably the the two parties have have sort of dug their way in and I'm personally struggling to see if there's a way they can dig their way back out and the more that attention is paid to to primaries being like a part of the election
• 47:00 - 47:30 process the problem then is that somewhere the government needs to Define what a political party is and the people who offer up the definitions are the people that stand to benefit yeah so I completely agree with you we've got an overly entrenched duopoly in and uh um and so the question is what's the strategy to bring about a change one strategy is take it on directly I don't think that has a chance to work um you
• 47:30 - 48:00 know when they tried when um Americans elect tried to create an alternative path to becoming a nominee to the president they spent $54 million and they didn't get on the ballot in every state right now they thought they were going to get to be on the ballot every state but it was going to cost unbelievable amounts of money to create a infrastructure to get a candidate on the ballot in every state that was independent of the parties um but if you begin to change the way campaigns are funded then you have a real opportunity to begin to fund alternative parties at the
• 48:00 - 48:30 local level now you know this is one of the strongest criticisms of what I've said people say oh my gosh you're going to create the Israeli Parliament if you have if you have um uh uh proportional representation and Public Funding um those two things together will make it so anybody can create a party and anybody can um you know begin to be a faction inside of of the government and and my view is I'm not a fan of mult you know 500 party parliaments but I am a fan of parliaments that encourage a
• 48:30 - 49:00 wider range of people to participate and right now we don't do that because the only people who have a shot to participate are those who have a Rolodex that's an old technology for finding telephone numbers big enough to raise the million or2 million dollars you need to be able to run a campaign so that means you know real diversity in the political process is shut out on day one so I'm with you as to the objective and I think I'm providing a means to get to the objective but I'm happy to talk
• 49:00 - 49:30 about other techniques too um a two-part question could you one could you perhaps speculate about the possibility of the three specific areas of reform you were talking about uh getting into the presidential debate this fall if um and the the other question is um assuming that as
• 49:30 - 50:00 I uh including the along with the economist um uh optimistically hope assuming Donald Trump causes us to have a Democratic Senate uh is there any chance that some of these reforms might get strongly effectively pursued in a Democratic Senate well so my view has been that the only way we get these reforms to happen is if the candidates for
• 50:00 - 50:30 president talk about the reforms now on the Democratic side um Bernie's been very good at talking about the problem you can't hear him speak without him talking about the problem of money in politics and the billionaires and the Wall Street money and gez did you know did you know I'm not raising any money except from small dollar contributions that's the Bernie line so nobody can miss that but when you ask a typical Bernie support Sanders supporter so what's he
• 50:30 - 51:00 going to do in the first 100 days most don't have any clue and when you ask Bernie what he's going to do in the first 100 days he identifies you know transparency regs he's going to get through um he's going to be supportive of the idea of amending the Constitution which as La Geeks you know is an incredibly hard thing to even imagine and he says that in the long term he's willing to talk about Public Funding of Elections to which my response is in the long term what are
• 51:00 - 51:30 you going to do in the short term Bernie because here's no change that you're talking about possible until you change the way we fund elections so I don't think that campaign has yet made the answers a central part of the debate and Hillary Clinton I think you know Hillary Clinton's platform about this is great great I mean she has identified exactly the solutions we want but you will never see her talk about it because anytime she talks about the corrupting influence of money in politics she's immediately stung by all the stuff around her
• 51:30 - 52:00 foundation and the Goldman Sachs money and so she's blocked from talking about the problem even though she has the solutions and Bernie talks about the problem but he's not even willing to talk about the need as Elizabeth Warren says to on day one press for changing the way we fund elections so that means I'm not hopeful now on the Republican side you know again who knows what Donald Trump is going to talk about um even if he talks about it on one day he's going to say the opposite on the next day he hasn't yet identified any policy reforms about this I actually
• 52:00 - 52:30 tried to figure out who in his campaign to talk to about it um and the report I got back from the campaign was there are zero policy people in the Donald Trump campaign you know that is just this is the most scary thing about this whole fact right it's not that there just this clown out there it's this clown with nobody else there's nobody behind the curtain like this is not wizard of o right um so I don't think there's much chance on that side either so that's why
• 52:30 - 53:00 you know I and many others are trying whatever way we can to get this into Center debate and that's the hopefulness about the Democracy spring movement because democracy spring is all about making the reforms the central part of the conversation hi um I don't is this working can you hear yeah okay I'm curious you sort of framed your talk in terms of returning to our you know original ideas of democracy and I'm
• 53:00 - 53:30 curious given that we know that the system as it was created was never meant to represent anyone but landowning white men sort of why you frame it as a return to this ideal as opposed to talking about more of a revolutionary idea of what democracy could be yeah so I am a representative democracy person and I certainly agree with you that the framers did not create a representative democ Ry the way we think of what it should include excluded women excluded
• 53:30 - 54:00 African-Americans um we could have an interesting argument about what the purpose of the property restriction was turned out something like 96% of white males qualified under the property restriction and at least if you listen to the justifications of the property restriction it wasn't about reinforcing aristocracy it was about weakening the tend the tendency to aristocracy because the argument was if people who have no property can vote it's easier to buy their votes so you don't want to give the rich an easy way to buy votes so the
• 54:00 - 54:30 only people who should vote are people who are properly independent and the people are independent are the Property Owners now I don't agree with that but I what I'm saying is I don't think it's actually animated by a design to create an aristocracy they were trying to create a not aristocracy they were trying to negate what they had before they failed from our perspective but the ideals they had are ideals that I think we should celebrate we should say not restore a representative democracy we should say let's try a representative democracy we've never had it so let's
• 54:30 - 55:00 give it a run let's see what happens with 50 years of representative democracy let's see how it works for our people because I I actually think it's better than direct democracy models I think the pop the progressives were mistaken in lots of ways about how direct democracy would be corrupted by the same influences which they were fighting against so so I'd like to find a way of talking about it now why do that in America well I mean you know I mean foreigners are always puzzled about this but we live in an extremely
• 55:00 - 55:30 reverential constitutional culture and it is I think really important resource for us to be able to go back to the framers and show that the framers were egalitarians about citizenship right not again in the race in the context that you're you and I would be talking about but at least in the place that they thought were relevant citizens they were egalitarians not the rich more than the poor the Striking thing about our current politic political um Supreme Court Juris Prudence is that when you
• 55:30 - 56:00 think about equality you think about race equality which the framers didn't care about you think about sex equality which the framers didn't care about you think of sexual orientation equality which the framers didn't even know about um but if you stand up in our Supreme Court and you start talking about egalitarianism as to wealth the Supreme Court thinks you've disqualified yourself to talk about America constitutionalism they think that that is an completely un justifiable basis to
• 56:00 - 56:30 think about how to set up election law but my point is that was the only equality they cared about that was the one not the rich more than the poor and so I think that's a resource for us to say look you're missing something really important about what a republic is supposed to be you love you conservatives love to say we don't have a democracy you're right we have a republic we have a representative democracy we at its core means equal citizens that's what it's supposed to mean and they weren't so great at it
• 56:30 - 57:00 we're not so great at it equal e either look you know you have the experience of looking at your parents and saying to your parents how could you possibly have thought blah blah blah but you say that right because that's what young kids do your kids will say the same thing to you about something that right now you can't imagine politics ever doing like for example why don't we allow 14y olds to vote in America I mean you know they're burdened by all of these decisions of
• 57:00 - 57:30 our government but you know it's as crazy to talk about 14y olds voting in America today as it was to talk about women voting in America in 1820 right but you know I hope children and dolphins will eventually get the vote like that's where I'm a deep egalitarian all the way down um so I think we have a reason to grab the ideal and to fight for the ideal and a rhetorically powerful tool inside of our constitutional
• 57:30 - 58:00 democracy is that our last question it was a good question that could be our last question I mean okay great that's our last question thanks very [Applause] much