Politics Q&A: Lawrence Lessig on the 2012 Primaries

The Harvard professor and campaign-finance-reform advocate reflects on the corrupting influence of money in American politics.

Larry Lessig, the renowned Harvard Law School professor and political activist, was known until recently as a champion of the open Internet. Although he hasn't stopped caring about causes like reforming intellectual-property law, he has recently turned his attention to the political system itself, and what he sees as the legalized corruption of campaign contributions and lobbying. He's out to persuade all Americans what so many already believe: that money is distorting our politics, and that major reforms are needed. He chatted with me about his cause and whether or not the presidential race has made him rethink any of his ideas about how our politics works.
You've recently written at book, Republic Lost, and an e-book, One Way Forward, about the corrupting influence of money in American politics. And as you've been talking about this issue, there's been a Republican primary to observe. Does this campaign fit your thesis?

The most depressing fact is that the issue of money in politics is not going to be allowed to surface in this campaign. There was an opportunity for it to be at the center of the Republican campaign, had the most qualified candidate, Buddy Roemer, been allowed to be on stage in the debates. This is the guy who had more experience in government than anybody else on that stage. He also had 20 years in the private sector building a bank, so he was kind of Herman Cain plus Newt Gingrich. But he was not permitted on the debate stage. And that was directly tied to the money issue.

How so?

They first said to him that he had to have 1 percent national name recognition. He said, "I've been in politics for 20 years, it's strange to make that a qualifier from the beginning." But when he achieved it, they said 2 percent. And when he achieved that, they said you have to have raised half a million dollars in the prior six weeks. He said, "My whole campaign is about money in politics. How can you say I have to compromise that to be out on stage?" But that was the rule. So the issue couldn't surface through him. And it couldn't surface through any of the other candidates because it would be deep hypocrisy for anyone on the Republican or Democratic side to say money is the problem. On the inside of American politics this issue is invisible. For Americans it isn't invisible. It's essential. But there's no way for it to be channeled through the process. 

Why do you think Buddy Roemer and Gary Johnson were mostly excluded from the debates, sometimes even after they met the previously articulated qualifications for participating?

The most charitable interpretation is that the media sits down and says, "Who is going to be a plausible candidate?" A bunch of people we can't be sure about, even if they're crazy, like Cain and some of the other Tea Party types. So they couldn't exclude them. They're plausible. But Buddy Roemer and Gary Johnson were not plausible Republicans, not because Roemer's issue wouldn't resonate with Republicans, but because anyone who tied his hands behind his back and said I'm not going to take more than $100 from anybody was going to be a hard person at least in terms of conventional politics to prevail. And Gary Johnson had views that would play well in certain parts of the country but could not win over Republicans nationally. So the media made that sort of crass judgment, and then said. "Okay, what are the rules so these people can't get in?" 

A more sinister view is that there's a lot of negotiation between political parties and the outlets that put on debates. Who is going to be allowed to have them? What are they going to look like? The party doesn't want to be embarrassed by Gary Johnson being on stage or somebody talking about the corrupting influence of money. So that's plausible. I don't know which of those theories accounts for it.

But those are the two I'd point to.

I've seen the argument that super PACs are actually a boon this year because they've helped candidates with less wealth than Mitt Romney to compete. Others argue that they're a bad thing, that they just permit too much money to be funneled into the political system. What do you think?

I clearly come down against them. They've increased the corruption of the system. In my view, you've got to start by recognizing that politicians are going to be responsive to their funders. In our system, the funders of campaigns are not the people. At the congressional level, .26 percent of Americans give more than $200 to a congressional campaign. Just .05 percent give the maximum amount to a presidential campaign. It's only the 1 percent of the 1 percent that give more than $10,000 in a cycle. If you look at the super PACs, there's a great piece in The Nation that says just .000063 percent of the population gave 80 percent of the money that's been spent in super PACs. The tiniest sliver of the 1 percent is funding things. It was already bad before the super PACs.

Now it's outrageous.

We're talking about 196 people in the United States who've given 80 percent of the money in super PACs. So a country that is supposed to be responsible to the people has got to be ashamed of a system where 196 people are having so much effect in how these campaigns develop.

The Lenin in me says, one step back, two steps forward. I wonder if this is going to be the election that wakes people up to just how outrageous the current system is. But I don't think there's any way to justify what the current system is doing except as a stage on the way to reform.

Have there been worthwhile candidates who wouldn't have emerged -- due to entrenched interests in the political parties or an otherwise unbeatable incumbent -- without a push from a big donor?

This is the Eugene McCarthy argument. People look back to 1968 and say, "There never would've been a Eugene McCarthy if people wouldn't have been allowed to spend whatever they wanted on independent expenditures." And I think people on my side of the issue have to say, "Maybe so."

Maybe there wouldn't have been a Eugene McCarthy. Maybe there wouldn't have been a Newt Gingrich in Florida. The world would've been so terrible if that hadn't have happened. Certainly that's a cost of a system that tries to rationalize these outrageous, disproportionate influences. The question is what's the benefit. The benefit is a democracy where people don't look at the president of the United States and think he's beholden to wealthy donors for the opportunity to be in office.

Rick Santorum has won some states despite a significant disadvantage in fundraising.

It's absolutely true that spending doesn't equal victory. But that's a separate question from whether or not candidates will do everything they possibly can to get money in their campaigns. Santorum wasn't foregoing money, he was doing everything he could to raise money. He has his own super PAC supporter who was backing him up, embarrassing him with sexist jokes.

We've also got to stop generalizing from presidential campaigns to American politics in general. I don't have a strong view about the corruption of the presidency. I actually think that I don't care about the presidency. In fact, the office is such that the interests of the president are directly aligned with finding something in the public interest and acting on it. You've got four years to make your case, maybe another four after that. You're shooting for history. It's all the right kinds of incentives. It might be that regardless of the way you fund presidential elections you'd have the same kinds of good and bad, and it wouldn't matter. But Congress is radically different.

You mean the fundraising landscape is different?

Whatever you want to say about Rick Santorum being able to run his campaign without a ton of money, you don't run campaigns at the local level without money and win. You just don't, you know, whether against incumbents or other candidates who are prominent. At the local level, you bend over backwards to make sure that you've got the right kind of money on your side. And I think that kind of influence has dramatically increased since Citizens United. I saw Evan Bayh give this amazing answer to John Santos from the Cato Institute, who'd been arguing that political scientists aren't able to show that political contributions have an effect on what people do.

Bayh said that it used to be the incumbents who were the bears. They were certain for reelection as long as they didn't sleep with the interns. They had all the money. They had great poll numbers. Every incumbent is now terrified that 30 days before an election, somebody is going to come and drop a million dollars on the other side. And if they do that, what can an incumbent do? They can't turn to their large contributors, because their large contributors by definition maxed out. None of these people have an army of contributors who can step up in a Howard Dean way and moneybomb support against the super PAC attack on the other side. So what incumbents are going to do is buy super PAC insurance. And how do you buy super PAC insurance? Well, long before you actually need it, you coddle up to the super PACs on your side. The ones likely to want to support you. And you try to build the relationship that's necessary to make sure they'll be there to defend you if in fact you get attacked on the other side. 

So how do you buy insurance?

Tell me.

You pay your premium in advance. And the premium here, of course, is behavior that gets the super PAC on your side to believe that you're a reliable vote who should in fact be defended if attacked. Without a dollar being spent on either side, you see the incumbents racing to secure the support they need from the super PACs by doing exactly what the super PACs want. So these guys have radically increased their power to influence Congress, to push it one way or the other. And I think whatever is true about Rick Santorum and the great virtue of Newt Gingrich performing well in Florida, you can't look at the effect of this system on the nation and think it's benign.

Jack Abramoff said one of his most effective tools as a lobbyist was to offer a legislator or a legislative staffer a cushy job when they left the public sector. I've observed that there is now a new kind of opportunity for politicians when they leave office, or even when their candidacy fails, to cash out in a different way. They don't take a job in industry, but in entertainment broadly construed. Sarah Palin did this, leveraging her vice-presidential campaign into a lucrative series of gigs. Various other Republicans have been paid to go on Fox News too. Mike Huckabee is one of them. Herman Cain and Michele Bachmann were even offered spots on Dancing with the Stars, and although they didn't take them, it underscored the fact that the celebrity gained from politics can in some cases be converted into successful entertainment careers. The rise in ideological media has helped create this market. Is that problematic? Is it causing a distortion?

It might be. I haven't thought about that much. It's certainly damaging in that these rewards go to people who are the most polarizing and outrageous. You talk to members of Congress -- my new hero is John Sarbanes, a third-term congressman from Maryland. And he's tying himself to these funds that will only pay out if he attracts 1,000 small-dollar contributors. So he's really forcing himself to become a small-dollar-funded candidate. He wants that to be his super PAC insurance.

But one of the things that became clear as I talked to him, I asked him, "WHy is it so hard to raise small-dollar contributions?" And he said, "It's not hard if you want to stand up and call the president a liar. It isn't hard if you want to be someone who gets national attention as a crazy. And then attracts the money that goes to the crazies on one side or the other. But if you want to be a sensible, responsible member of Congress, it's not very sexy. It's not very interesting." I fear the same thing may be true with the dynamic you're describing. If the way to get the Fox News or MSNBC contract is to be outspoken and outrageous, and we begin to have a media space filled with politicians at the crazy extreme -- Sarah Palin walked away with $20 million, and that's amazing, to have a woman who never earned more than a $150,000 salary walk away with that kind of bank account -- it's just the case that money is going to drive out good. All the decent, moderate, sensible, responsible politicians just get defeated in this dynamic by the crazies.

I'd love to see it fixed. But I think that it's unrelated to the corruption I'm talking about. Similarly, I'd love to see it fixed so that Mayor Bloomberg can't just buy his seat, but I don't think Bloomberg buying his seat is causing the problem I'm talking about either. They're different problems.

You were hoping that Buddy Roemer would have success in this election and get the issue of money's corrupting influence before a lot of Americans, perhaps in the same way that Ron Paul is getting several of his outside-the-consensus issues before people. Insofar as that hasn't happened, what's Plan B? What's the next method that should be tried?

The theme of the book I just published is that the chattering class likes to divide America into the left side and the right side. But the most important division in politics today is between the inside and the outside. This election is the quintessential insider politics drama, and when it's over it's going to leave the outside even more disgusted than they were before. The challenge is to figure out how the outside can come to recognize, as a sleeping giant when it wakes up, that it's big, that it's got different limbs, and that they can actually act together. The giant here is slowly waking up in American politics. It has a left version and a right version. And there's a need for a cross-partisan alliance to fix the things that are wrong at the core of this government.

Image Credit: Robert Scoble

What follows is an edited transcript.