Most people considering a presidential run dream of eight years in the White House. Harvard Law professor Larry Lessig proposes that his term should last a single day — just long enough to sign into law a transformational election rights bill, before resigning and passing responsibility for governing our reformed American democracy to his vice president.
Lessig calls his proposed legislation the Citizens Equality Act of 2017. It would end partisan gerrymandering of congressional districts, extend ironclad voting rights to U.S. citizens and make Election Day a national holiday. Most vital to Lessig, it would move toward public financing of elections — giving every voter something like a $50 voucher to back the candidate of her choice, blunting the influence of special interests.
A Democrat who once clerked for arch-conservative Supreme Court Justice Antonin Scalia, Lessig does not offer a plan to fix Citizens United or the unlimited donations to super PACs. But he insists his bill is the essential first step to making our representative democracy once again represent voters, rather than the nation’s tiny donor class or well-heeled oil lobbyists.
Lessig’s “referendum” candidacy is an intriguing longshot, with unexpected upsides: As the man who would handpick the vice president (soon-to-be president), Lessig suggests that his victory could be the key to installing a liberal heartthrob like Elizabeth Warren, or even a titan of Silicon Valley like Sheryl Sandberg, in the Oval Office.
Rolling Stone recently chatted with Lessig about his plan, and the philosophy behind it.
Talk about your “referendum” idea. What does that look like in a presidential campaign?
We have an issue with basic corruption that the vast majority of Americans would vote to reform, but which it’s almost impossible to imagine Congress actually addressing. Representative democracy is not going to work. So we need a way around representative democracy.
Some states have referendum processes to do that. The idea was: let’s hack a referendum into the Constitution. We do that through a referendum candidate, who would say, “My mandate is to do one thing, and when that one thing is passed, I’ll step aside for the vice president.”
You have an election where you’re getting two for the price of one. You’re getting the reformer — the person who makes it possible for the next president to actually accomplish something. Then you have a president who gets to enjoy all the benefits of a reformed system.
But what happens if you get elected president, and then — before your big bill gets passed — Iran goes crazy? Who, then, deals with the ayatollahs, or ISIS, or whatever the crisis is?
The person who is elected the president. That person has to convince the public that, in the case of something extraordinary, they could act as a kind of leader that the nation needs at the time of crisis.
You’re saying you’ve got the qualifications to make those kinds of decisions in the interim?
Absolutely. If I’m not qualified to be that person, I shouldn’t be president.
But, if I were elected in November, I would hope that somebody would start making the argument as forcefully as they can: “Congress, pass the bill! So the first hour of his administration, he can sign it and get the hell out of there!” Right? The people have spoken.
Let’s talk about your baggage. You clerked for Antonin Scalia…
That’s not baggage, that’s experience! What are you talking about?
You don’t think that creates some questions in the minds of Democratic primary voters about your political leanings?
Scalia was open about the fact that he hired liberal clerks. I was a token liberal in the chamber and was charged with arguing context where it was important to try to shift the decision. That was a fun role to have.
So this referendum model puts a lot of weight on the Citizens Equality Act of 2017. Why do you think it’s the answer to the corruption of our electoral system?
In the South, there used to be the white primary. So in Texas, by law, only whites were allowed to vote in the Democratic primary. No one hesitated to say that system produced massive inequality.
What we have in America now is the green primary — a primary in which the people who fund the campaigns (about 50,000 Americans) are in the business of choosing which candidates get to run. Because if you can’t get money from those people, you can’t be credible in the electoral process.
We first turn to the wealthiest, and we say to them: “Who do you approve of?” And then we the people get to decide, among that small set, whom we’re going to elect. That’s the fundamental inequality.
But your bill is bigger than just campaign finance.
It doesn’t take much thinking to recognize the other dramatic ways in which we violate political equality. Take the idiotic way we gerrymander our districts. In the House of Representatives, we only have 90 seats that are competitive — which means for the 345 other seats, you’ve got safe seats.
If you’re the minority in those districts, the representative doesn’t give a damn about you because you can have no possible effect on whether he or she gets reelected. That’s a completely artificial inequality that’s a conspiracy of both Republicans and Democrats.
The third inequality is partisan: the ridiculous way in which the Republicans try to stop the Democrats from voting. That expresses itself in racial terms because of the racial mix of Democrats and Republicans.
These three dimensions of inequality have no justification in our system. They are foreign. They are as alien as anything could be in a representative democracy. We have to eliminate them. And we could fix all three of those in a single statute.
It’s easy to see how voting rights and gerrymandering get fixed legislatively. The funding aspect seems much fuzzier — given the Citizens United decision equating money and speech.
The movement has been so focused on vilifying the Supreme Court and calling for an overturning of Citizens United and Buckley v. Valeo that it has obscured the fact that, even without those decisions, we still would have a fundamentally unequal way of funding campaigns.
If you look at the number of people who give $5,200 — the maximum amount you could give to any congressional candidate, regular donations to campaigns — the number of people who did that in 2014 was 57,874. And that’s about 0.02 percent of America.
So if you eliminated super PACs, if you eliminated corporations having to right to speak, if you eliminated all of this billionaire spending, and all we had was a system where campaigns were funded by 0.02 percent of America, you still would have the essence of the inequality I’m talking about.
The really important question is: How do you publicly fund elections? I support giving everybody a voucher they can use to fund campaigns.
Now, it’s true that there’s still going to be a problem of Citizens United. I’m perfectly willing to acknowledge we’ve got to address that constitutional problem too. But we have to address the statutory problem first.
How do vouchers create an attractive system of public financing — instead of spurring an arms race, with the special interests just ramping up their own political giving?
In my book, Republic Lost, I talked about a $50 voucher. A $50 voucher would produce, with full participation, $7 billion in election spending. Seven billion dollars is about three times the amount spent in the last election system for Congress. So it’s real money. And it’s real money that’s coming from, literally, millions of people.
It doesn’t directly address the super PAC problem. But the super PAC problem is tied intimately to the culture of corruption that’s produced by the ordinary funding system. Congressmen are so terrified of offending the super PACs, and so terrified of not having the money they need to raise, that they’re constantly bending over backwards to reward the people who are going to be in a position to benefit them.
If you began to give these congressmen some independence, some of them would still bend over backwards, but more of them will be like, “Finally, I can do the right thing. I don’t have to worry about what the petroleum company thinks when I start talking about the environment.”
Why President Larry Lessig? Why not back one of the other Democratic candidates in the race? Is it because they’re too focused on reversing Citizens United — either through a constitutional amendment, or, in the case of Hillary Clinton, through a promised litmus test for Supreme Court justices?
You could convince Bernie about what the right answer here would be. I don’t think Hillary has come anywhere close.
But the problem is not whether Bernie has the right policy boxes checked off. The problem is: Is it even possible for him to have a mandate powerful enough to win with this issue?
And that is what the referendum president is trying to do: to leverage a mandate in the system that an ordinary president could not have, so the ordinary president could then step in and have the mandate to do all the things that that president wants to do once he or she becomes president.
So spin this out for us – the scenario where you win. Right now you’re not even officially in the race. You’re waiting to crowdfund $1 million first?
We’ve launched this crowdfunding mechanism to get going. If we succeed and get into the campaign, it can have the exposure necessary to get to a debate. The debates will be an incredibly important opportunity.
Obviously this whole campaign gets framed in a way that it seems incredibly implausible. I think the hardest thing for people to grasp is that my candidacy is not a zero-sum game. Usually it’s either Hillary wins or Bernie wins. In my frame, it’s not either/or — it’s both/and. So fix the system first, and then let’s have Bernie. Or fix the system first, and then let’s have Hillary. Or fix the system first, and then have Elizabeth Warren, or Sheryl Sandberg, or whomever.
That is an important part that seems to be missing from this conversation.
So who becomes your VP? The person who comes in second in terms of votes? Or a name you pull out of a hat? You just mentioned a couple of people who aren’t even in the race.
I don’t propose any mechanical way to think about it. I’m more progressive than I am a New Democrat — so I like the idea of people like Bernie or Elizabeth Warren. On the other hand, I also like the idea of somebody who’s going to really excite the base’s imagination about what they could do as president.
There are very powerfully successful CEOs in America, especially women, who would also be attractive to the Democratic base. So the challenge is going to be to find the person who will make this all feel possible, that we’re going to win.