Oct. 22, 2020

Can campaign finance reform solve D.C.’s corruption problem?

We know there’s an ungodly amount of money tied up in politics, much of it collected in the campaign finance stage. What we often don’t know is where it comes from and what its aims are.

What if we could shift the way we interpret and regulate campaign spending? That kind of shift might just root out deep-seated corruption in our electoral process...according, at least, to today’s guest: Lawrence Lessig, a Harvard Law professor who ran for president in 2016 on a campaign finance reform platform.

You don’t want to miss this one. You might not agree with Lessig’s unorthodox ideas of campaign finance reform...but I guarantee his views will make you think differently.


Transcript

Kinsey Grant, Morning Brew business editor and podcast host [00:00:09] Hi there, everybody, and welcome to Business Casual. It is me, Kinsey Grant, and I approve the following message. Let's get into it. [sound of a ding]


Kinsey [00:00:18] Here's a fun little hypothetical for you. What would the world look like if money didn't corrupt our political process? Would there be fewer smear campaigns? Would we feel more seen by our elected officials? Would Rihanna's next album finally come out? Hard to say, especially on that last one. But, it's not hard to see money's influence on our democratic system. After all, the road to D.C. is paved with fat checks. We learned as much in our last episode with Sheila Krumholtz from OpenSecrets. 


Kinsey [00:00:46] But what can we do about it? That's our question today. If we really do need campaign finance reform as badly as so many say we do, what should that campaign finance reform look like? Today, we are parsing through the possible fixes to what appears to be a distinctly broken system. And fair warning: This might be a pretty political episode, at least as far as Business Casual episodes go. But this is an inherently political problem, and it's one that we need to think sincerely about fixing, regardless of which side of the aisle we stand on. 


Kinsey [00:01:17] Now, today, we are talking about campaign finance reform with the incontrovertible, preeminent campaign finance reform expert who is also a professor at Harvard Law School and previously taught at both Stanford and UChicago. Lawrence Lessig. Welcome to Business Casual. 


Larry Lessig, Professor at Harvard Law School [00:01:33] Really great to be here. Thanks for having me. 


Kinsey [00:01:35] I am happy to have you on the show. I am very, very excited for this conversation. Have one big question before we get started. Can I call you Larry? 


Larry [00:01:41] Yes. Yes, you can. If you're nice, you can. Yeah. [laughs]


Kinsey [00:01:42] If I'm nice. I'll have to work up to it, earn the right to call you Larry. So, Lawrence, maybe Larry, we'll see. [laughter] You are a man of the law, which means you are incredibly smart and I'm assuming very well read. Could be plenty of reasons to have you on this podcast. 


Kinsey [00:01:59] But the one we are focusing on today is campaign finance reform, like I said up at the top. And I wanted to bring you in to talk about this specifically because you have focused a tremendous amount of brainpower thinking about campaign finance reform in recent years. In fact, you ran for president in the 2016 election on a platform of primarily campaign finance reform. So that had to be very interesting. [chuckles]


Larry [00:02:22] Yeah. I was trying in 2016 to get the Democratic Party to focus on this issue. Turns out I was four years too early, because the really exciting thing about 2020 is that every single major candidate running in the Democratic primary—and Bill Weld, in the Republican primary—committed to fundamental reform, including campaign finance reform within the first 100 days of a new administration. So I think we have an extraordinary opportunity, assuming the right party and the right people come into place, to make this reform happen in 2021. 


Kinsey [00:02:55] Yeah, absolutely. And smart people do tend to be ahead [laughs] of their time. That is the trend that we see time and again. So we're going to talk about the specific candidates running in the presidential election in 2020 and get a better idea of how all of this should look in a more ideal world. If we had the fixes that we wanted, what would it look like? What would campaigns look like, especially? And where would the money flow? And where would it come from? So, we're gonna get into all of that. But I want to start by understanding what's at stake here. Can you tell me why campaign finance reform is so necessary right now? 


Larry [00:03:26] Yeah. That's a really important question to get clear on upfront, because how you understand the problem dramatically affects the nature of the solution. Now, some people think the problem of money in politics is just that there's money in politics, or that there's too much television advertisement or too much campaign speech. And I don't think that's the problem at all. 


Larry [00:03:47] I don't know how much campaign money we ought to have. I mean, we spend more money advertising soap every year than we do electing a president. So it's not clear to me that we're spending too much. To me, the problem is not the money we spend. The problem is the way we raise the money. 


Larry [00:04:03] So members of Congress and candidates for Congress spend anywhere between 30 and 70% of their time raising money. And of course, they're not raising money from the average American. They're raising money from the tiniest fraction of the 1%. So they become dependent on this tiny, tiny fraction of the American public to fund their campaigns. 


Larry [00:04:25] And obviously, whenever you are dependent on a tiny few to make it possible for you to have your career, you're going to be incredibly responsive to the needs of that tiny few. He who pays the piper calls the tune. Never was quite sure what that originally referred to. But the intuition is pretty clear, right? 


Larry [00:04:43] If you're paying somebody, if you're the one paying somebody, then that somebody is going to listen to you when you say, hey, I want you to do a tax cut for super-wealthy people, or I want you to block this climate change legislation, or oh, by the way, the $15 minimum wage—it's a no-go. The point is, so long as we fund campaigns with candidates dependent on this tiny few, we will not have a democracy that represents America. 


Kinsey [00:05:09] Yeah, absolutely. And I think there are at least two ways here that the sort of everyman loses out. Number one, your elected officials, who are supposed to be representing your needs and your wishes and your unique experiences living where you live, are spending up to 70% of their time not doing that [laughs] is, number one, a huge problem. There is a complete lack of focus. And I think, number two, those aren't the people who are going to be calling the shots. And that dual crisis is really interesting and troubling, I think. 


Larry [00:05:38] Yeah. I think you can also think of a third problem to it. So, there was a time when I just got into this reform work. My congressman died and people asked me, you know, maybe I should run and make reform like the central thing that I would do as a member of Congress. And Joe Trippi, who ran Howard Dean's campaign, called me and said he'd want to run my campaign. So he came to San Francisco and we sat down. 


Larry [00:06:03] And Joe Trippi said, you know, you've got to commit to me that every day between now and the time you retire from politics, you will spend at least two hours on the telephone raising money. And I said, Joe, no, no, I can send emails. He said, no, you can't send emails. You've got to call people two hours a day at least, every single day, seven days a week. And I finally said, Joe, you know, I can't do that. But then I said, like, who are the people who can do that? 


Kinsey [00:06:28] Yeah. 


Larry [00:06:28] What kind of person is that? Because you develop this very pronounced, sycophantish relationship to these funders. You are learning how to make them feel like you will give them whatever you want. So you can get the $2,800 from them that you want to fund one cycle of your election. So I think it's also just what it does to representatives. 


Larry [00:06:52] How can we have leaders when we discipline them to be so responsive to the extremely wealthy in our society and have no capacity to be independent, to say I don't care what you think because you happen to be worth $10 million or $50 million or $1 billion. I care what's important to my constituents. That's the independence we have to find a way to afford. And the current system doesn't give members of Congress the capacity to afford that independence. 


Kinsey [00:07:20] Yeah, absolutely. And it is almost a vicious cycle, right, that you have to spend those two hours every day pedaling [laughs] people and pounding [laughs] the pavement, trying to get money from your supporters, your one percenters. If you want to spend the other eight or 10 hours a day doing the things that really matter—making change and trying to be the voice of the people that they need you to be—you have to buy into it. If you don't, you lose. [laughs]


Larry [00:07:44] Yeah. Two hours a day was optimistic. I remember in 2011, when Beto O'Rourke was first elected to Congress, he came to Harvard because Harvard has a program for training like new members of Congress. And he was so depressed and he reached out and he said, can we have coffee? So we had coffee. 


Larry [00:08:02] And he showed me this memo that he'd gotten, like a slide deck, from the Democratic Campaign Committee. And it was basically a schedule—like what their daily schedule should be. And the Democratic Campaign Committee was telling them they had to spend four hours every single day with call time. And Beto was like, why did I get elected? I can't spend four hours talking to people about raising money. I'm supposed to be taking care of people in my district or pushing ideas or trying to understand what's good for America. 


Larry [00:08:31] And so the point is, it just totally destroys the job of an effective representative if we have this system where they can't be effective. What they have to do is just learn how to be great fundraisers. 


Kinsey [00:08:43] So do you think that elections can be bought and sold right now? 


Larry [00:08:48] I don't think there's anybody who's operating on the level of, you know, you believe in climate change. But what if I gave you $50,000? Would you give up that belief? Nobody operates like that. Kind of explicit quid pro quo. It's just not even effective. You would insult the person if you talked like that, and you wouldn't win them over. 


Larry [00:09:07] Instead, it's a more subtle dynamic. And the subtle dynamic is you are constantly aware of what's going to pay and what's going to cost. Leslie Byrne, a Democrat from Virginia, describes that when she went to Congress, she was told by a colleague, "Always lean to the green." And then she went on, by that, he was not an environmentalist. [Kinsey laughs] What he was saying is, if you're trying to decide which way you should go on an issue, just think to yourself, where's the money? And so lean in the direction of where the money is. 


Larry [00:09:39] Now, you don't have to have a conversation with anybody to do that. You can figure out. If it's a bill about climate change and it's going to harm the oil industry to benefit the environment, you know, God bless the environment. It doesn't have a lot of lobbyists on its side. The people who have lobbyists are the oil industry. So if you gotta choose and it's not going to be too important to your district, lean in the direction of helping the oil industry, because that'll be where the money for your campaign will come from. 


Larry [00:10:07] That dynamic is not criminal. It's not even unethical. It's just systematic corruption of our institution of representative democracy. And we need to think about it not as a kind of morality play, where we have these evil criminals who are doing bad things. We need to think about it as it's just a system that has the wrong incentives built into it, and start thinking about how we change those incentives so we can begin to get representatives who care about representing us as opposed to representing those who fund their campaigns. 


Kinsey [00:10:38] So whose responsibility is it to root out that corruption, to realign those incentives? Is it the oil lobbyists and the big money that's donating to the campaigns, or is it the people, the elected representatives who are accepting the money? Because I can see, on both sides, how either one should bear responsibility for this. And I can also see how neither one will accept responsibility for this. 


Kinsey [00:10:58] If I'm a lobbyist, I want to keep funneling the money in where I want my money to go. I want to win certain outcomes that I am incentivized to win because that's how I make a living and support my family. And if I'm an elected official, I'm not going to win my next reelection campaign if I don't accept this money or if I don't bow to the whims of whomever is sending it my way. [laughs] 


Larry [00:11:22] Yeah. I think there's no counting on the lobbyists to basically decide to cut their income in half, which is effectively what it would be if they gave up leveraging their influence over fundraising to produce policy outcomes that their clients want. That's the business model. And it's an incredibly lucrative business model for them. So we can't count on them to do the right thing. 


Larry [00:11:45] The only people who can do the right thing are the representatives. And to do the right thing here means passing the kind of institutional reform that would change the incentives to change the economy of influence in Washington. Many of them are hesitant to do that because they're not really sure that they can win under the new system. They know they could win under the old system. That's why they're there. 


Larry [00:12:09] One problem for them is thinking, well, if we adopt this change, are there going to be a thousand people running against me because now they have public funding to be able to afford challenging me? Or is it going to be harder for me to bring in the core funding I need from corporate PACs to make sure that I can afford to run the infrastructure of my campaign? All of those are the kind of ordinary questions humans have when they face any change that threatens their livelihood. I get it. 


Larry [00:12:35] And I don't think actually we ought to, in fact, even expect them to behave in a way that is more virtuous than the law requires. Like so, you know, I don't actually believe in unilateral disarmament. A lot of people who make big deals about how they're not taking corporate PAC money or they're only going to take small contributions. My view is, that's great. But what we need is to elect people who are committed to real reform. 


Larry [00:13:01] And so more important to me is that you say on day one, I guarantee that I will co-sponsor fundamental reform to fix this problem. That's more important to me than that you say I'm not going to take corporate PAC money. Because you could not take corporate PAC money, but if we don't change the system, the corporate PACs are still going to have the influence that they have right now. 


Larry [00:13:20] And so I think the obligation is on members of Congress. And in a certain sense, we ought to say, look, you're not criminals. Nobody's thinking you're being bribed. And talk like that is just sloppy talk. But you are morally responsible for the destruction of the greatest democracy in the history of the world. Now, that's a hard statement to make for an institution that systematically excluded African Americans and women. 


Larry [00:13:44] And I don't mean to sugarcoat it, but it was an extraordinary run of efforts at radically important changes brought about through democratic action. Think about what was achieved in the '60s and the '70s alone. And so I think that when you look at the Congresspeople and you say, look, you've destroyed this institution. You've allowed the inspiration of Newt Gingrich to bring us to a point where this is a dysfunctional institution. And so you have an obligation to fix it. 


Larry [00:14:14] I think that begins to frame exactly what the right is and what the wrong is. And it's not like there aren't great examples of well-functioning democracies. You don't even have to go out of the United States. Just go to any number of state legislatures. I was testifying in New Hampshire about ranked-choice voting, and I sat in a committee meeting in New Hampshire, and there were like 17 members of the committee who sat there for a full four hours listening to the testimony of ordinary people about whether ranked-choice voting should happen or not. 


Larry [00:14:44] They were not on their phones. They were not reading newspapers. They were just doing the job of a representative. There were Democrats there. There were Republicans there. They were just legislating. There's no way to imagine that same thing happening in Washington today. Committee hearings, unless you're a movie star, will have the chairperson from the majority party and one ranking member on the other party. The two of them will sit there. 


Larry [00:15:06] Once I was at a committee hearing [chuckles] that Bernie Sanders conducted. He was the only member of the committee who was there because it was the legislation that he was pushing about drug pricing that nobody else was going to support. So they didn't have to go to Sweden to be embarrassed about how dysfunctional Congress has become. They just need to go to Vermont or to New Hampshire or to any other of these smaller states. The bigger states are just as bad, but the smaller states, where representative democracy lives. 


Larry [00:15:34] And it's not a liberal thing, it's not a conservative thing. It's just a democratic thing, which we could do if we only had institutions where members cared about what they should care about, which is not what the funders of campaigns want. 


Kinsey [00:15:45] Yeah, absolutely. And I have to wonder if we have had any sort of legislative traction in terms of putting a cap on these outlandish finance regulations and rules and donations and all of the corruption and misalignment of interests that we've been talking about that that breeds. Has anybody tried to do anything to fix these problems? 


Larry [00:16:05] The first thing is, again, given the way I describe the problem of this improper dependence, the only way we fix that is we change the way we fund campaigns. That is the only fix. Like limiting contributions just means you've got to suck up to more people. But you're still sucking up to the relatively few who can afford even a $100 contribution. Upper-middle class people think $100 is nothing. But for most of America, [laughs] the idea of giving $100 to a politician is just unimaginable. You've got real bills. 


Kinsey [00:16:38] Right. 


Larry [00:16:39] You can't be giving away your money to politicians. So until we change the way we fund campaigns, nothing is going to fix it. And the way to do that is some version of public funding. Now, Nancy Pelosi, in 2018, promised that if the Democrats won the House, she would pass the most ambitious Democratic reform package that's been considered by Congress since the Voting Rights Act of 1965. That's called H.R. 1. 


Larry [00:17:05] And its title is important because what H.R. 1 means is that it's not just comprehensive, but it has to be the first step to make it possible to do anything else. Campaign finance is not an end. It's a means to making democracy possible. And she delivered on that promise. In the first six months of 2019, they passed that bill. And that bill has, at its core, a critical reform around campaign finance from members of Congress. 


Larry [00:17:31] So it's a public funding proposal that includes matching funds. So if you agree to take just small contributions, your small contributions can be matched up to 6-to-1, which will make it easier to raise money from smaller contributions than from larger contributions. But the really exciting idea that's at the core of that bill—not developed enough, I mean, I think there's more to be done here—is an idea that's building off of what Seattle has done to help fund campaigns. And that's a voucher program. 


Larry [00:18:00] So what Seattle does is basically give citizens four $25 vouchers that they can use to fund city races in Seattle, and to make it possible for candidates who are running in those races to raise money from ordinary people, not just from the lawyers or the tech billionaires. And that's had a radical effect on the number of people participating in the funding of campaigns, the distribution of people who contribute. It's not just white men. It's every single sector of society. Poor sectors as well as rich sectors. 


Larry [00:18:32] And that idea of vouchers I think we need to experiment with at the national level in a much more aggressive way. So I would love to see right now, H.R. 1 has this is an experiment for three districts, or three states, where you can request a $25 voucher. That's not going to work. Nobody's gonna request vouchers. I think what we ought to have is four congressional districts, two of them solid red and solid blue. And then two of them on the margin, red and blue. 


Larry [00:19:02] And every single voter in those districts receives a voucher in the mail or receives a coupon packet in the mail. And then they can be appealed to by candidates to help them fund the races. And what we all see if we do this experiment in a really rigorous way is whether it invites a more diverse range of people to be participating, whether the people who are participating are less polarized, less extreme than a typical small dollar contributor. 


Larry [00:19:28] Whether it encourages more political discussion at an earlier stage in the campaign, because you need to raise your money in June and July if you're going to run an effective campaign in September and October. And so I think that that experiment could point us in a direction of a much more profound change in the way we fund campaigns than even the matching fund proposal that's at the core of H.R. 1. 


Kinsey [00:19:50] OK. I've got a big question about that experiment, but we're going to take a short break first to hear from our partner. —


Kinsey [00:19:58] And now back to the conversation with Larry Lessig. Professor Lessig, the big question is, when we talk about this public funding idea and the idea of getting vouchers in the mail, and then using them at your discretion how you choose to, what that would mean to open up funding for so many more groups and traditionally marginalized groups, importantly. Who pays for that? Where does that money come from? 


Larry [00:20:20] Well, it's our money that we've sent to the governments in the form of taxes. So I think about it as like a rebate. Rebate of the money we send. Send it back to us. When I first proposed this idea in a book I published in 2011, "Republic Lost," I felt like I was being a little bit radical in proposing a $50 voucher, which at the time I calculated every single voter in America sends at least $50 to the federal government, whether it's payroll taxes or income taxes, whatever. We all send at least $50. 


Larry [00:20:53] So it's like, send the first $50 back, and you can use that to help fund the campaigns. Now, people say, can we afford it? That used to be a real question for the Obama administration. But you look at the money we've spent in the last four years and, obviously, we apparently can afford anything. But if you just think in the purely calculating way about whether we can afford it—the Cato Institute, which is a libertarian think tank in Washington, estimates that the federal government spends at least $100 billion every year on what the Cato Institute calls, quote, corporate welfare. 


Larry [00:21:30] And what that means is special deals that these corporations have gotten through Congress to make it easier for them to profit, protected from the marketplace. OK. So, if you take the voucher idea I was talking about and you doubled it. So the voucher idea I was talking about would be about $3 billion a year. Let's say it was $6 billion or even $10 billion a year. The point is it would liberate Congress so that it wouldn't need to be giving this corporate welfare, because it's giving the corporate welfare to raise the money to run for Congress. 


Larry [00:22:01] So if you could reduce the corporate welfare by just 10%, you would have paid the cost of these vouchers. So I think it's extraordinarily cost-effective if you just focused on the cost. But my own view is, I don't care what it costs if it gives us a democracy which is more representative than the current democracy. The objective of a representative democracy is to be a representative. 


Larry [00:22:26] You can't sort of say, well, it's too expensive for us to get a representative democracy, so we'll just get one that represents, you know, rich people. That's all we can afford. I mean, that's very convenient, because if it can only represent rich people, [Kinsey laughs] guess what? Most of the country is not going to be taken care of by that democracy. 


Kinsey [00:22:41] Yeah. So I guess the big question for me here is, is that enough money? $3 billion is a huge number. Obviously, a ton of money passing hands. But there have been estimates that this election cycle, 2020, the total is going to approach something like $11 billion. So it would it remove some of the money from the process? 


Larry [00:23:00] Well, the biggest chunk of money that we're seeing in this current cycle is coming from the abomination called super PACs. And nothing I've been talking about so far directly addresses the problem of super PACs. 


Kinsey [00:23:12] Right. 


Larry [00:23:13] So that's either something that the Supreme Court has to fix or has to be fixed through a constitutional amendment. And people don't remember, or recognize, or know that the Supreme Court didn't really directly give us super PACs. What the Supreme Court did is, in 2010, it decided the case Citizens United. 


Larry [00:23:32] And that case inspired a lower federal court in Washington to then decide that if the Constitution protects the right of rich people, corporations, and unions to spend unlimited amounts of money, independently of a political campaign, the First Amendment must also protect the rights of rich people, corporations, and unions to give unlimited amounts of money to independent political action committees, so-called super PACs. I don't think that follows at all. 


Larry [00:24:04] I think there's no good reason to believe even a conservative Supreme Court would uphold that reasoning. But it's never been tested. We've never gone to the Supreme Court to test that theory. So I think there's a chance that even the conservatives on the Court would see why that doesn't make any sense. 


Larry [00:24:19] But that's the biggest chunk of corrupting money that we see inside our system that wouldn't be taken care of by something like vouchers, even if it were the ambitious program of vouchers. What was exciting about vouchers is that, you know, I felt radical in 2016 talking about a $50 voucher. This election cycle, Andrew Yang came out of the gatepost talking about a $100 voucher. 


Larry [00:24:40] Kirsten Gillibrand then said she would give $200 for every federal race in your district so you could, in principle, have $600 if a congressperson were running, if a senator were running, and it was a presidential election cycle. And then at the end, Bernie Sanders embraced a really generous voucher program. So, we've upped the voucher numbers. And I'm not sure what the right number is, but the question is—I'm sure what the question is. 


Larry [00:25:05] The question is, what does the number have to be to change the way people raise money to stop focusing on the tiny fraction of the 1% and instead focus on their constituents? And, you know, all of their constituents. And so that might be 50, might be 100, maybe 200. I don't know. But that's what we should be looking for. Whatever it costs. Because the point is, you won't get anything done in Washington if you don't find a way to change the funding of the system. 


Kinsey [00:25:33] So when we think about the candidate who does win [chuckles] in terms of the amount of vouchers that we'd get in this hypothetical system, do you think that that would cut back on the amount of time that, you know, what we were talking about earlier in this conversation—time we'd have to spend making calls, trying to get people to send you their voucher. Do you think it would be easier? 


Larry [00:25:51] I don't know whether it would change the total amount of fundraising time. I hope it would. 


Kinsey [00:25:54] Right. 


Larry [00:25:55] It would change the nature of it. You're not going to be calling people for a $50 voucher—just not going to do that. You might be spending more time in the district and kind of, you know, block parties or meeting in churches or in union halls or in other locations where there are lots of people who could have vouchers. You would set up more opportunities to interact with people. And that's a good thing, right? 


Larry [00:26:19] Because what we want are Congresspeople who are constantly feeling what their constituents want as opposed to Congresspeople who never have to leave their office and could just have their telephone be their fundraising machine. So I don't think we know enough about how it changes the actual behavior. But I certainly think we need to find a way to give them more opportunity to act independently as real representatives and spend less time trying to figure out how they pay their bills. 


Kinsey [00:26:48] Yeah. I think this notion of equal rights, regardless of how successfully or unsuccessfully we have actually implemented them in the United States, is something that is incredibly compelling and part of the American democracy story, to your point, from the founding fathers on down. So what would be the argument against this if this is an equalizing prospect [laughs] that gives people a more equal voice? What do your detractors say? Why wouldn't they? 


Larry [00:27:14] Well, this is, again, why it's so important to differentiate between the position I'm pushing. 


Kinsey [00:27:19] Right. 


Larry [00:27:19] Which is about creating a Congress that is not dependent on this tiny number of funders. From the way this argument is sometimes heard, which is we have to equalize speech in the political marketplace, because what people on the other side typically will say is that the idea that the government equalizes speech is just anathema to our first amendment traditions. And I agree with that. 


Larry [00:27:42] Nothing I'm talking about is about the power of the government to equalize anybody's speech, which is, again, why I don't mind that you spend money independently of a campaign. That's fine as far as I'm concerned. That's why I don't think there's any real problem to small contributions in addition to the voucher amounts. That's fine. What I'm talking about is making sure that representatives don't feel themselves beholden to an unrepresentative few. They need to be beholden to a representative many. 


Larry [00:28:12] So I agree with the criticism of the misunderstanding [chuckles] of the position I'm advancing. But when people are confronted with what the argument is, and I say to them, do you really believe that our framers or anybody who believes in a representative democracy would defend the idea that an unrepresentative few have enormous influence over the representatives? There's no argument in favor of that. 


Larry [00:28:39] There's no reason for that other than you happen to like what they would do if they happened to be in power and they were represented in that way. So I think that there's a lot of misunderstanding, that we have tons of work still to do to get people to get it. 


Larry [00:28:53] And some of that misunderstanding is seated on my side of the debate. I mean, so many people talk about getting money out of politics or shutting down people's ability to participate. And I really think that's unhelpful. It's really missing the point about what the problem is. And we've got to focus on what the problem is if we're gonna figure out what the solution would be. 


Kinsey [00:29:12] Right. And I think it's unrealistic to ever expect that we would be able to remove the money from anything. [laughs] That's just the nature of the world we live in right now. I want to talk a little bit more about what is realistic and is not realistic in just a second. But before we do that, a short break to hear from our sponsor. —


Kinsey [00:29:30] And now back to the conversation with Larry Lessig. So how realistic is this? Give it to me straight. Do you think that this would ever happen—your proposal? 


Larry [00:29:40] Five years ago, I would have said there was a .01% chance we would win. Now, —


Kinsey [00:29:45] OK. 


Larry [00:29:46] That was not a reason not to fight, you know, because I was convinced a dozen years ago my [indistinct] friend, Darren Swartz, that there was no other fight to have because nothing else is possible until we win this fight. So because I think there are all sorts of important issues that we've got to find a way to address, from climate change to inequality, what I realize is this is the first issue, the issue we have to solve before anything else is possible. 


Larry [00:30:08] So five years ago, I would have said we're not going to win, but we still have to fight. But now I am incredibly optimistic because there's a clear shot. It's absolutely certain that Nancy Pelosi, if she is speaker of the house in 2021, will reintroduce H.R. 1. And if Chuck Schumer is the majority leader of the Senate, then it's absolutely clear he has promised to take up H.R. 1 as passed by the House. 


Larry [00:30:36] And if Joe Biden is president, Joe Biden has promised that he will pass, as quickly as possible, and support H.R. 1 or H.R.1 Plus, better than H.R. 1. So for the first time, we actually have all of the key actors who are saying, if we're in charge, this is what we'll do. Now, there are many cynics who say the Democrats don't want reform any more than the Republicans do. So if they really had a chance, they'd find a way to walk back from it. And that's possible. But it's at least feasible. [laughs]


Larry [00:31:07] It's something we can actually see how it happens, like we could be imagining a year from now. Just think about that—a year from now, living in a radically different democracy. I mean, H.R. 1 is so extraordinary in its changes. Everything from basically guaranteeing everybody is registered, has the capacity to vote, ending partisan gerrymandering, public funding for congressional campaigns, all sorts of ethics reforms of the judiciary, of Congress, of the executive branch. An incredible package of reforms. 


Larry [00:31:36] A year from now, that could be passed if there's a Democratic Senate and a Democratic president and Nancy Pelosi remains speaker of the house. So, yes, I'm really optimistic. Right now it's hard to feel that optimism because we're kind of at the abyss, and we're looking down, and it's like impossible — 


Kinsey [00:31:55] I haven't felt optimism in months. [laughs]


Larry [00:31:58] Right. It's like you see the disaster that's just before [indistinct]. But, it's like with every movie that has an abyss. The trick is to just look beyond that, [laughs] just look to the other side. And on the other side, there is a real chance that something important will happen. 


Larry [00:32:13] Now, if it doesn't, let me tell you, if the Democrats get in power and they find a way to back away from this reform, then it's a whole new fight. It's a whole new fight because that would be an incredible betrayal of the reform movement that's been working for generations. It's just now coming to a moment where it could work. But I believe that the key people really want it. I mean, Nancy Pelosi is swinging for posterity. This is what she wants to be remembered for. 


Kinsey [00:32:44] Right. 


Larry [00:32:44] The woman who not only was the first speaker of the house was a woman, but also the woman who changed fundamentally how democracy in America functions—in a good way. And I think she's a strong-willed person who will get what she wants. 


Kinsey [00:32:59] So in the interests of covering all of my bases, we've talked about the possibility, the hypothetical with Dems having the power in all three parts here. But what about if there is another Trump presidency? What happens? 


Larry [00:33:12] There's a fight to be had. It'll be a fight in the states. There'll be more and more evidence, you know, lots of fuel for more books. And as an academic, [Kinsey laughs] I like to write books about how terrible and corrupted the system is. But Trump revealed that he doesn't believe in draining the swamp within a year of his administration. 


Larry [00:33:35] And unfortunately, as I said, I was focused for most of the last 12 years, the first eight at least, on trying to get people to see the way in which corruption is not criminal. It's a kind of institutional point. It's not about bad souls like doing bad things. Then Trump comes along and his corruption [laughs] is flat-out the criminal sort of corruption. Like the efforts to channel money into his businesses, his sensitivity to whether the FBI moves because it will affect the profits at the Trump Hotel. 


Larry [00:34:05] I mean, the grotesqueness of the self-dealing is literally unmatched in the history of our republic. And so, if he's president again, he's not going to change. His character is not going to change. And so I think reform is finished for at least four years if he becomes president again. 


Kinsey [00:34:22] Yeah. I think it's very important here to draw the lines between the moral character of the people we elect to office and the money that we give them. Trump has brought in a ton of money from small donors, and a lot of candidates do. But that should not necessarily be the judgment for whether or not they are apt leaders, legislators, what have you. 


Larry [00:34:42] Sure. It's good that people get small money because it means they're not going to be controlled by a relatively few. But that's not the end of the moral evaluation or the political evaluation. Like, what are you gonna do? Like, what's your commitment to do? And if your only commitment is, like, keep power to protect yourself [laughs] from criminal prosecutions or civil suits, that's not enough. You have to have a vision that's bigger than yourself. 


Kinsey [00:35:06] Right. 


Larry [00:35:07] And I think Democrats could be criticized for that too—some of them at least. But I think that the point to keep in focus is that for whatever reasons, the stars have aligned. We are at a place where it is possible and not perfect, not perfection, but a million times better than what we have. And we ought to be fighting like hell for that right now. 


Kinsey [00:35:28] Yeah, absolutely. And I think it can be very, very difficult this year, especially, to prioritize what issues require the most attention at any given moment. I mean, a pandemic, global health crisis, the Earth is on fire. What deserves our attention most? And I enjoyed hearing your perspective earlier that if we want to accomplish anything on any front in in any way, this has to be priority number one. 


Larry [00:35:51] Day one. That's right. 


Kinsey [00:35:53] So, Larry, thank you so much for coming on Business Casual. It has been fantastic to hear your point of view. And I love when we can do episodes like this one where we identify a problem, but instead of just dwelling on the existence of that problem, we actually talk meaningfully about possible solutions. So I appreciate your transparency and your time. 


Larry [00:36:12] Thank you for having me. 


Kinsey [00:36:20] Thank you so much for listening to this episode of Business Casual. That conversation with Larry was a doozy. We covered so much and you haven't even heard all of it. If you want the extended cut of this interview, complete with some very hot takes about the 2020 election, head over to our YouTube for the full conversation. We are on YouTube, as, you guessed it, Business Casual. See you next time. [sound of a ding]