BRIAN LAMB: Professor Lawrence Lessig, your book, ”Republic, Lost” first chapter, first couple of sentences: ”In the summer of 1991, I spent a month alone on a beach in Costa Rica reading novels. I had just finished clerking at the Supreme Court. That experience had depressed me beyond measure. I had idolized the Court, it turns out humans work there.” Explain more about that.
LAWRENCE LESSIG: Well I think of myself as being pretty young, pretty naοve. I had just come from clerking for Judge Richard Posner, who I think is the greatest judge of our times. And the court wasn’t filled with a bunch of Judge Posner’s, and worse, I felt the court had too much influence from clerks. So it was a year though I have enormous respect for the justices, it was a year of coming to recognize just how imperfect what I thought this perfect institution was. As I point out later in the book, I’ve come to think of this institution as perhaps the only institution in our federal government that is anywhere close to what the framer’s imagined it to be, and have enormous respect for the fact they do their own work, and they protect themselves from the sort of influence that leads people to believe that corruption is part of what they do. It’s a it’s an extraordinary institution.
LAMB: What did you see you didn’t like?
LESSIG: You know I guess what I felt that I didn’t like was a different kind of compromise. It was an institution that felt like there was too many moments where a political influence, not improper, but just the flavor of political influence was part of what was going on. Now much less than most people think you know, the court decides many cases unanimously, and the justices rarely ever get into real political squabble about issues. But it just wasn’t what in a very naive sense that I thought it would be.
And so I was really just trying to find a way to clear my head, because I say, I was going to begin teaching at the University of Chicago Constitutional Law that fall, so I needed to be back into some better mood about exactly what the place was.
LAMB: Before you got to Richard Posner’s clerkship, where had you gone to school?
LESSIG: I graduated from Yale, although I spent one year at the University of Chicago, and then followed a woman to Yale. And I graduated before that from Cambridge University where I had studied philosophy. And before that, the University of Pennsylvania, where I studied economics and management.
LAMB: One thing I’d really like to know is this journey of yours from being the head of the teenage republicans in Pennsylvania, to voting for Barack Obama, and you saying in your book, I’m a liberal.
LAMB: How did that start?
LESSIG: So yes, I mean I was the youngest member of a delegation in the 1980 Republican Convention, and I remember screaming as loudly as we could for Ronald Reagan, and working in that campaign to get him elected. In some ways, I don’t think I’ve changed, I was a libertarian, I still believe protecting liberty is an essential part of what government needs to do. But I think what happened was I you know I began to see the infrastructure that was necessary to support liberty, including infrastructure of equality, so the importance of public education, the importance of systems that make sure we have markets that function effectively by being regulated in the right way.
And these were all recognitions that brought me back to policies that are close to the democratic party policies in many contacts. Although you know I would have no hesitation for vote for a republican candidate for president, and right now in this current time, there’s only one candidate for president, a republican who’s articulating issues that seem to me to be at the core of the problem with our democracy, and that’s Buddy Roemer, substantive views. I have very strong disagreements with him, but on the insight that our government has been corrupted, he is singing a very clear song.
LAMB: You clerked for Richard Posner. How do you get that coming out of Yale, how does that work?
LESSIG: So it was the fact that I spent a year at Chicago that got me that clerkship, because a professor I had at Chicago who thought highly of me spoke to Judge Posner, and he was concerned that I was too much a philosopher, and so he wanted me to demonstrate that I didn’t think philosophy was the job. And that’s actually quite revealing about him, because you know he is the founder of the Law and economics movement. And I remember when I clerked for him, there are a number of times where there was a Law and economics theoretical answer to the problem, and he would brush that aside and say the question for me is what’s the law require, not what Law and economics requires. But I convinced him I would be enough of a lawyer, and he took me on.
LAMB: Antonin Scalia, you clerked for him.
LESSIG: I did.
LAMB: How did that happen?
LESSIG: Well it was a very episode where he had me come down to interview with him in October, and he and I had a very intense argument about some statutory interpretation case. And he took me out and he said, you need to talk to my clerks now, and so I did. And the clerks were all very conservative clerks, and they had marked me as a liberal, and so they were basically this was just you know I was the Christian, and this was the coliseum, and the lions were called in.
And so I had to sit there and be beaten up by these conservatives. And then Justice Scalia came and said I’m going to lunch, I need to talk to you for a minute, so he brought me in and he said, OK, so I’m going to give you the job, but you can’t tell my clerks.
So I had to go out, and I had to not fumble for the next two hour before my plane left, and I continued the conversation. And then I hear that six months later, the clerks came into him, said Justice, you need to hire your fourth clerk, and he said, I did hire my fourth clerk, and they were outraged that he would have hired someone who was not of the party. But it was it was an amazing experience.
This you know Scalia is, of course, criticized and reviled by many, but I learned a very important lesson of how to think about what constitutional law is about from him. You know in some way, I spent much of my early career in constitutional theory, struggling with his conception of originalism, and how to make it make sense. And there were many times when I clerked for him where he demonstrated that his commitment was to a set of principles, and not to a political ideology. So he would do things that were you know seemed liberal, but they weren’t liberal because he was a liberal, they were liberal because they followed from his beliefs about what the constitution required.
And so you know I left that job with him having enormous respect for him, even though obviously on very important issues I disagree with him.
LAMB: What’s been your relationship with him for the last 20 years?
LESSIG: Cordial like you know many I’ve had you know lunch with him a number of times, I’ve seen him at a number of events, and he’s a very warm, welcoming justice, and eager to meet your kids, or to bring them into his family.
LAMB: So how often when you were clerking for him, or for that matter Richard Posner, did you find yourself having to write an opinion that you disagreed with? And what do how do you do that?
LESSIG: Yes, so rarely. So when I clerked for Posner, Posner is one of the few judges that does his own writing completely. So you know and he’s astonishing, so he goes home and comes back the next day with two 30-page opinions with citations in them. And gives them to you, and your job is to write a critical memo. So I would write you know ferociously critical memos you know page by page, line by line criticizing what he’d say, he’d take the note, he’s take his opinion, he’d do another draft, and we’d do this four or five or six times.
So in that sense, that was a completely easy job from the standpoint of what was my own integrity, because I didn’t ever have to compromise anything, I just had to but I was worried when I got to the Supreme Court, because, of course, at the Supreme Court, clerks are much more involved in the writing of opinions. Now that’s very different depending on the justice.
So in Justice Scalia’s chambers, clerks would draft an opinion, but he spent all of his time editing and working through everything that was written. So it’s not really fair to say that it’s not his opinion, it was completely his opinion. But in the nature of the job, you pick your cases based on what you’re interested in, and so you can opt into cases that you know are either not political, or don’t you know have any strong opposition to your view. And I could do that for almost all cases, there was one that was close.
But you know I thought of my job as making Justice Scalia the best Justice Scalia he could be. My job was not to convince Justice Scalia to become Justice Brennan, or to become Justice Souter. And what that means is you had to study carefully who he was, what his views were, and hold him to hold him to these ideals. And in that sense, it was a refreshing experience, because you know it’s not every not every justice is like that. And not every justice would be embarrassed by the fact that he was inconsistent with himself, and so you could use that in a way to make him you know I think he’ll be one of the most important justices in the history of the court.
LAMB: What kind of an environment did you grow up in?
LESSIG: So my father’s capitalist, he ran a steel fabricating company in Central Pennsylvania, he’s a republican. Although he didn’t have much patience for politics, and not much patience for lawyers, and not much patience for law professors. So I’m not sure what he thinks about me as a law professor spending time arguing about politics.
But he was a very intense, hard working person, up at three or four in the morning every morning to work to for his company. And my mother later in my life worked as a real estate agent, but she for when I was a younger when I was younger, she didn’t work at all.
LAMB: Brothers and sisters?
LESSIG: So I have a younger sister, two years younger, and I have two older siblings, about either years older, nine years older than I am.
LAMB: Currently you direct the Edmond J. Safra Center for Ethics at Harvard University. Who was Edmond J. Safra?
LESSIG: So Edmond J. Safra was founder of the Republic Bank, and he is an extraordinary figure in the history of banking. He had a he had a very important ethic to him about how he believed money should be made. It was a very conservative balanced perspective on banking, which is in sharp contrast, of course, to the current way the banking happens on Wall Street. So he died a number of years ago, and his wife, Lily Safra had been a very generous supporter of the center before I came there. And after I came there, she gave another extraordinary give of some $13 million to support and endow the work of the center.
And though, of course, Lily Safra, the Safra Foundation has no connection to the running of the center, I was very happy to be able to do the kind of work that I’m doing at the center, which is focused on what I think of as institutional corruption, supported by a man and a tradition that was exemplifying the life that I think we should see more in Wall Street exemplifying.
LAMB: I got on Wikipedia, which you’re a professor that thinks it’s OK to read Wikipedia, I think.
LESSIG: To read Wikipedia, of course, yes, absolutely.
LAMB: Can you use it anywhere?
LESSIG: I use it a lot in my book, I use it everywhere, sure, yes.
LAMB: I here’s the first paragraph, I wanted to know how it happens that somebody with this kind of a background ends up funding a Harvard program. Edmond J. Safra, born 1932, died 1999, was a Jewish Brazilian naturalized Lebanese banker who continued the family tradition of banking in Lebanon, Brazil and Switzerland, he married Lily Watkins . He did in a fire that attracted wide media interest and was judicially determined to be due to arson. How does why is it that it ends up money ends up going to a place like Harvard? We see this all over the United States. And does it worry you when you run an ethics program where the money comes from?
LESSIG: Well I would be worried if I were in a position of raising money for the center. And I have on my own Web site a very strict non-corruption principle about in what context I will participate in raising money, and in what relationships I will get myself into so that I can speak in a way that nobody doubts that what I’m saying is a function of what I believe, as opposed to what my funders care about.
It was the enormous gift to me to be able to come to the center already fully endowed, even without the most recent gift, which was basically in place before I came. She made a commitment to give the money from a legal dispute to a number of charities before I came to the center. It was an enormous gift to me that I would be at a center where I could just do my work, and not worry about the issue of how do I raise money for the center? Because always, and increasingly in academics, if you need to worry about that question, people worry about whether you as an academic are focused in the right way on what the truth is, as opposed to focused in a way about how to raise your money.
So I’m not a fund raiser for my center, and I’ve met Lily Safra a number of times, and I’m very happy to work in honor of a tradition that I think her husband would be proud of. But I rare in the context in the world of people who don’t have to worry about money in a way that might draw into question the integrity of their work.
LAMB: This is really off the subject, but it was fascinating to read about his death. Did you as the at the Safra Center look into that, and do you have any sense of in the end how he did die? And I know there was somebody convicted of arson.
LESSIG: Yes, I mean I’ve read just the news accounts of it, and I know it was an enormously tragic event for Lily Safra. And you know it’s one of these events where there’s a million places where you wonder, why didn’t the system respond better, or the amount of time that it took to recover him? And so it’s a tragedy, but of course that was long before I had anything to do with the center. And before I knew anything of Lily Safra or Edmond J. Safra.
LAMB: Where did you form your views along the way? You know the I mean this book is all about corruption in government. But you headed up for how many years the Stanford Center on the Internet?
LESSIG: Yes, so I went to Stanford in 2000, and we started the center in 2001. And the center was really focused on the relationship between technology and policy. And one of the areas where that’s particularly interesting is with copyright policy, because how you imbed creative works inside of the technology will affect people’s access to it, and that’s the sort of issue that copyright law is typically meant to govern.
So you know we studied copyright policy, we studied network neutrality policy, all of these issues where these two things conflict, or where they interact. And so I ran that until I came to Harvard, which I came back to Harvard in 2009.
LAMB: But what did what did it what was the impact of it? And who would fund something like that?
LESSIG: Well so when I went to Stanford, I was hired by Kathleen Sullivan , who was the Dean, and you know I was in a position to negotiate for what I wanted, and what I wanted was the assurance of a center that could do this kind of work. So she just committed to doing it, and I went there with that commitment. Once again, I wasn’t in a position of raising money for the center, it was another fortunate situation, although it was a little different from the Safra Center, because there wasn’t an endowment sitting there that I just came to. But I came to the center, we opened it up, we hired people, we started doing our work.
And that and that project you know we had a wide range of issues from privacy to architecture of the network to copyright policies. And in that context you know obviously as we saw policy evolve in the context of the Internet and copyright, there was a concern about the way policymakers here in Washington did or did not understand the full range of the issues, and you know one of those moments where I recognize I wasn’t as smart as I thought I was. It was a kind of awakening to me to realize, gees, they don’t understand all sides of the issue, because not all sides of the issues have a lot of money to be in here getting access through lobbyists to tell them the other side of the issue.
And so that was really the beginning of me thinking that there was a deeper problem to these questions about Internet policy that we would have to address first if we’re going to deal with these Internet policy questions. And obviously, not just esoteric questions about copyright, but more fundamental questions about you know global warming, or healthcare, or you pick your issue.
LAMB: When did you start how well let me go back to this, because you talk about being friends with Barack Obama. Explain that.
LESSIG: Yes, so I was professor at Chicago University of Chicago when Barack Obama was an adjunct professor, and then he became a regular professor part time, because he was also running a legal practice at the same time. And we were friends in the sense we’d had dinner and spoke about a number of issues. And when he started to run political campaigns, I was a strong supporter of him. And you know and in and as I write in the book, there was something extraordinary about him, and that’s what really compelled me to be such a strong supporter of him, and I think even from his very first campaign, which was a disaster, but from that first campaign, I had a sense that there was something about this man that would distinguish him from most other politicians, and I think in fact we saw his success to get to the presidency as a measure of that distinction.
LAMB: But you’re pretty critical of him now.
LESSIG: I am, yes.
LAMB: How critical?
LESSIG: Well you know though I would have I probably would have supported him regardless, I think Americans could fairly say the reason to support Barack Obama over Hillary Clinton was that he made a central part of his campaign the idea that we had to, as he said, quote, ”take up the fight to change the way Washington works.” And that fight was about changing the corruption that I read about in this book, it was the recognition that the current system made it impossible for problems to get solved in a way that advanced either the interests of the left or the interests of the right. And so therefore, fixing that system you know a number of times he would say this is the reason I’m running for president, to challenge that system, and to take on that system.
It seemed to me that when he was elected, that was going to be a central part of what he did. And it was almost as if when he became elected, he became the Hillary Clinton Administration, because unlike Barack Obama, Hillary Clinton made no bones about the idea that she was there to change the system you know it wasn’t to fix the horse, it was to get on the horse and run it as far as she could. And that’s and that’s the kind of administration she would have run. And that’s the kind of administration Barack Obama has run, where he played the game in the same way, and never even put on the field a strategy for how we were going to radically change the system, or fundamentally change the system.
And that was an enormous disappointment, I you know and at points, it kind of feels like a betrayal, because if there was one person in the last 50 years who had the power to bring about the kind of change that this system needs, it was the man Barack Obama on January 20th, 2009 when he represented this extraordinary coalition of people who wanted to see him succeed in an enormously powerful way, and I think he could have, had he executed in a way that was focused on how this reform should happen.
LAMB: I wrote down Obama these are your words, ”Obama surrounded himself with tiny minds whose governs vision was Clinton’s.”
LAMB: Can you name them?
LESSIG: I could, yes. I certainly ...
LAMB: I think I think one of them you at least I gather Larry Summers is somebody you’re not big fan of.
LESSIG: Yes, though I mean I have disagreements with Summers, it was more you know a certain mentality of governing. And you know I think Rahm Emanuel is a fantastic Mayor of the City of Chicago, but in part for the reason that he’s very good at a kind of game that I thought Obama didn’t need to be playing, that he needed to be playing a game a higher game. And so that you know I wrote a piece on the nation, which I originally wanted to title the tyranny of tiny minds until people convinced us convinced me that it was too aggressive a title. But I regret not naming it that, because that’s kind of the picture. You know the I think you have these people you know many administrative people from the original Clinton Administration who populated this administration, whose conception of how politics should work was just smaller than the conception of how politics could work, that Obama brought to Washington.
There’s a story that I was told from inside the administration that when Obama was given the first budget, and there was some six or 7,000 earmarks in it, his first instinct he said was to veto the veto that budget, and he was told by his lobbyists for you know Capitol Hill that there’s no way you can do that, you can’t cut these ties with the democrats. And I just think that had he vetoed that, he would have been the tea party. Had he signaled his fundamental desire to change the system, and to change the way that Washington works, he could have continued to rally the reform movement that now breaks out all over literally the world because of its frustration with the current way that democracy doesn’t function.
LAMB: You say in your book that you went into the middle of a tea party rally. Where and when?
LESSIG: This was in Arizona, it was last February, one of their conventions, policy conventions for the Tea Party Patriots, which in my view is the most credible of the tea party movements, it’s a real grassroots movement, doesn’t take Koch brothers funding, it’s not tied to the Washington lobbyist shops. It was founded by Jenny Beth Martin and Mark Meckler, Mark is a father from California, Jenny Beth from is a mother from Atlanta. And I went to their convention just to hang out, I mean I wasn’t speaking, but just to hang out and to meet these people and talk to them. And I saw 2,000 people intensely eager to find a way to make you know government work again. They were not talking about gay rights, they were not talking about the right to abortion, they aren’t talking about any of the traditional separating polarizing issues, they were talking about a government out of control.
And in that sense, I too am concerned about a government out of control, and I actually believe that if we had the chance for the long enough conversation with the tea party populist, at least, we could come to an agreement about why this government is out of control, and that agreement is the argument of this book, that it’s out of control because we have a system where congressmen are focused on funders, as opposed to focusing on the people, and the funders are just not the people.
LAMB: Other than being a clerk, have you ever worked in government?
LAMB: You had did you ever consider working in the Obama Administration? Did they offer you anything?
LESSIG: They didn’t offer me anything. By the time that administration came to place, I was a pretty controversial figure, so because of the work that I’d done with copyrights, so I don’t think there was much chance that I could have been easily appointed to anything.
LAMB: What made you controversial over copyright?
LESSIG: Well when I was working the area of copyright, I was I felt like I was a lawyer with a guilty conscience, because I saw this enormous potential that the Internet was presenting us for people to create and to share creativity. But at the same time, the law was stepping in, and locking down a lot of these opportunities in ways that seem to me anathema, both to the tradition of copyright, and to the Internet. So I became quite active in trying to push for a more balanced copyright regime, and I helped found a group called Creative Commons, which enables creators to make their works more easily accessible using free copyright licenses that do that.
So in the context of that, I became the kind of villain of Hollywood, even though you know by the end of those battles, some of my closest friends were people from that movement, and I had enormous respect, and a and a very interesting long relationship with Jack Valenti, the Head of the Motion Picture Association of America. And so you know it’s not like anybody genuinely felt there was you know villains on either side of the table, but I was identified pretty strongly as one of the anti-maximalists in this movement, and there would have been a lot of pressure to keep me outside of ...
LAMB: I was reading somewhere a review of your book, I think it was it may have been on Amazon, where they were really offended that you had written one of your books that might have been a remix, or one of them, where they said initially that for somebody that believes that this stuff ought to be available to everybody, he didn’t put his book on Google or whatever. And then he said later, woops, I just found that he did, but he didn’t do it during the time that he was selling his book, or whatever. What is your philosophy of things like this book, who should you’re selling, so shouldn’t you get copyright protection for a long time?
LESSIG: Yes, so copyright law gives me automatically copyright ownership over the book for my life, plus 70 years. And I believe any author every any creator is entitled to the copyrights protection. But some authors believe that making their work more accessible is a better way to achieve whatever their business model is, right, so what’s my business model? Spreading my ideas. So when my book, ”Free Culture” was published, it was the publisher who said, why don’t we make this available under a creative commons license immediately under a license that permitted people for non-commercial purposes to take and copy the work and share it. And what happened when we did that with that with that book is that people started doing all sorts of extraordinary remixes of the book, they would translate the book, they would do audio versions of the book, they would do all sorts of things to make the book more accessible, they would put it into every format for every kind of reading device, and they did all of this just because they were eager to help spread the message of the book. And we had a section on the Web site, remixes, where all of these different volunteer activities to make the work accessible were there.
And the insight the publisher had is that yes, maybe we’ll lose some sales, because some people will get the book for free rather than buying the book, but that decrease in sales could easily be swamped by the number of people who never would have had any access to the book at all, because they wouldn’t heard about it, or something like that. But now, have heard about it, or have had access, and decided they want to buy the book, because they find it so interesting.
So the insight of the publisher was maybe John Grisham should never use a strategy like this, because everybody knows John Grisham, and you know there’s no spread factor that might come from making his work accessible. But Lessig is no Grisham, and many authors are not Grisham, and so maybe we should try an experiment to see what’s a better way to make the work available. And so I was, of course, eager to do that, and then after that, my earlier books were made available under creative commons license, and remix was the last of the series in that work that was also made under a creative commons license, and my contract with the current publisher allows me to make this available under a creative commons license after a period of time.
So what you know we’re trying to experiment with is what is the right relationship with the publisher to make sure that everybody gets what they need? You know publishers are in the business of making money from publication, and I’m all for that. And authors get paid, and I get paid for publishing my books through an advance. But I’m also actually ultimately because I’m not John Grisham making millions of dollars from my book, I’m really much more interested in the book being widely accessible. So it was an important condition that I put into the contract that it would be available under a creative commons license.
LAMB: Let me go back to a question I asked earlier. Where did you get these ideas? In other words, when did it start for you, when was the first impression on you back high school, college, Cambridge, or whatever, where you started to have a strong feeling about issues and policy and ethics?
LESSIG: Yes you know from my father. You know I think the you know my father in his disdain for politics, he didn’t hate the idea of government, or didn’t hate the idea of government doing the right thing, he hated the lack of integrity that he felt was in the system. He didn’t you know he didn’t see people who seemed to live up to the ideals they said they were living up to. And the great excitement of Ronald Reagan at the time, frankly, was the sense that here was a guy who was willing to say and stand for what he believed, regardless of the fact that everybody said it was crazy.
And you know that feeling, there’s a constant spring of that in politics you know I think you see the same thing happening with some of the candidates in the republican, like Herman Cain right now, who inspire a kind of sense of you’re different because you’re willing to say what other people don’t say. And there’s an integrity to what you’re doing. So this idea of integrity was the central part of the education I had with my dad, I mean you know my dad the most important experience he doesn’t even know this but the most important lesson my dad ever taught me was so he was in a business where they would have to bid for contracts to build bridges. And you would put your bid in, and you were low bid, you won. And his estimator forgot a million dollars in one of the contracts, a million dollars for the bolts, and some other supply thing, just forgot to include in the bid, so his bid was a million dollars low. And there were a million ways you know I’m a contracts professor, I know this, there are a million ways he could have gotten out of that. But he looked at it, and he said, I said that this is the price, and this is the price we’re going to do it at.
And I you know I was actually working at the firm at the time, I did ...
LAMB: At his firm?
LESSIG: His firm. And I you know like I was in high school, and so I was working in the plant you know and drilling steel. And I just remembered a it’s like it’s one thing to be honest when it’s $50 under the table, but it’s another thing to stand back and say, a million dollars of your money, because it’s just a private family company you know is gone. Because he made a mistake, and I’m going to live up to this.
And that’s the sense of integrity that you know I think was kind of seared into me as a kid. And so as I’ve grown up, institutions and people who live within the institutions have been a constant focus for me about what is their relationship to the ideals or the integrity of what that project or institution’s supposed to be about?
LAMB: In Boston where you live, I assume you live near Harvard?
LESSIG: Live in Brookline right across ...
LESSIG: ... the river.
LAMB: You have somebody running for the senate named Elizabeth Warren who was a Harvard professor. Glib in public, can talk, and all that. I look at you and see somebody that’s done an awful lot of talking. Is there a campaign for you in the future?
LESSIG: No, I’ve ...
LESSIG: ... I’ve committed my firstborn male child if I ever run for congress. And I made this decision quite self consciously, because when my congressman in California, Tom Lantos, died, a lot of people tried to push me to run, there was a draft Lessig campaign, and almost overnight they raised you know I think something like $100,000 to sort of support the campaign. And I spent you know a good two weeks trying to figure out whether I would run, and partly because I didn’t think I could ever beat the extraordinary woman who did run, and did win, Jackie Speier. But partly because I thought, there’s no way for me to do the work I want to do, which is about trying to change the corruption of the system, while living within the system, and having to partake of exactly the thing I think is the problem.
So you can’t be a congressman today without spending an enormous amount of time raising money. So how could I on the one hand be picking up a phone calling random people asking for $2,500 in checks, and on the other hand saying this is a terrible system where people are out there having to raise money to get into congress. So I made a commitment then that I was doing reform work, and not because I wanted to be a congressman, and not because I was running for anything, and I wanted to join a large number of citizen politicians in the sense of people who don’t ever want to go into government as a politician, not because I think that’s terrible, I think I have enormous respect for people who serve in the public. Tom Lantos, the man who spent his whole career in congress, Hungarian born American you know was an enormous inspiration, I think we need more people like that.
But my point was, I couldn’t, again, with integrity say that I was in this for the purpose of changing the system, if people were always wondering in the background, are you doing this because you’re trying to position yourself to run for office? So no, I’m not going to run for office.
LAMB: Chapter nine, first page, ”In 1974, the total spend by all candidates for congress, both the house and senate, was 77 million.” That’s ’74, 77 million. By 1982, it was 343 million, a 450 percent increase in eight years. By 2010, it was 1.8 million, a 525 percent ...
LAMB: Excuse me, 1.8 billion, as you wrote, a 525 percent increase again. Why?
LESSIG: So a lot of things are happening, the cost of campaigns go up, but the competitiveness of congress goes up as well. So Newt Gingrich wins control of congress for the republicans, for the first time, republicans begin to imagine, gees, we could be the majority party. You know for so many years, they thought of themselves as some in some sense structurally the minority party. But now they could be the majority party.
And both parties recognize that there’s this fierce fight every two years to determine who’s going to control congress, and the value of owner of control, the control premium, as you would say in corporate law, is huge in government. So both parties begin this race to raise as much as they can to try to defeat the other party, and the amount of money that’s being raised is going through the roof. And as it goes through the roof, the very ethic of being a member of congress begins to change, because you know in 1990, leadership is picked on the basis of who’s going to be great leaders. By 2005, leadership is picked on the basis of who’s going to lead the most fundraising efforts, and most successfully inside of congress. Good if that’s a good leader, too.
But the thing that’s really distinguishing people is their capacity to deliver on the thing the party thinks it needs. And you talk to some congressmen, like I spent an enormous amount of time with I think as much time as he would give me with Congressman Jim Cooper, who you know has been in congress as long as any as all but about 20 other members of congress. And he describes you know the democratic policy committee that was these early part of congress, they would get together, they would talk about politics, they would talk about should we do this, what would labor think? Should we do this? What would the banks think? You know they talk about what’s the right thing to do as the basis of democratic values?
But today, that very same committee gets together, and the question is, have you raised your quota? Have you met your amount of money you need to raise? And if you haven’t met your quota, well certain perks that are given out by leadership don’t get given to you. You want to be a committee chair, well you’ve got to do your job, and your job is not representing your district, your job also is making sure you’ve raised the right amount of money.
LAMB: In the back under acknowledgements, you list a whole bunch of Web sites. You say, let’s see, well actually it’s about the author, I’m sorry, talks about you also serve on the boards of Creative Commons, MAP Light, what’s that?
LESSIG: So MAP Light, Money and Politics Light, is a group that’s building technologies to make it easier to see the relationship between money and politics.
LAMB: What’s the next is Brave New Film Foundation?
LESSIG: So that’s a foundation that was set up to fund the production of films by Robert Greenwald and related, so he’s done work on the Afghanistan war, he’s done work on a wide range of issues, including some progressive and some around the war that have brought in funders from the conservative side as well.
LAMB: Did he do ”Outrage?”
LESSIG: No, he ...
LAMB: Did he no, did he do did he do the Fox ...
LAMB: ... documentary?
LAMB: What was that, ”Out Foxed,” or something like that?
LAMB: Yes. Change congress.
LESSIG: So that was an organization that I started with Joe Trippi that was instead of running for congress, an organization that was trying to focus reform effort on changing congress. That evolved into fix congress first, and then when the republicans grabbed control of congress, and there was no hope in the short-term for a bill to bring in some version of public funding, we became what we call root strikers, and that’s a word that comes from the sacred text in the book, which is the words of Henry David Thoreau when he wrote in Almalden , for every 1,000 hacking of the branches of evil, there’s one striking at the root, and the effort here is to get people to begin to focus on what is the underlying cause of all these different issues that people want to complain about on both the right and the left. That’s the critical argument I’m trying to push here.
LAMB: Are there places you mentioned, you said rootstrikers.org, then there’s opensecrets.org. Are you involved with them?
LESSIG: I’m not formally involved with them, no. But they are another fantastic organization for taking the enormous amount of data about influence and trying to make it accessible to people in a way that they can comprehend.
LAMB: Comes out of Center for Responsive Politics.
LESSIG: That’s right.
LESSIG: Yes, so followthemoney.org is a is a great organization focused on state money and state politics, and they’ve done an enormous job in making it easy for people to understand how state governments are being affected by contributions.
LESSIG: Open Congress is, again, about congress, but not just about money, they’re trying to relate bring a lot more information about bills and the way procedures work and committees work inside of congress.
LESSIG: So this is a pledge that some of the public funding organizations work to get candidates to make, where the candidates commit to supporting something like the Fair Elections Now Act, which is a bill that would basically establish public funding for congressional elections.
LAMB: Probably not making a fair statement, but you can correct it. If you go back and look at all the funding of all these organizations, you see a lot of the similar funding groups, everybody from George Soros to the Rockefeller Foundation and other places. And then if you check their politics dot , they’re often left of center. Again, the reason I bring this up is, isn’t this just a way of funding from the left organizations that will bring about the change that the left wants? And ...
LESSIG: Well if it’s ...
LAMB: ... why don’t more why don’t more conservatives get involved in this? Because this stuff actually is often bipartisan, because they’re at Open Secrets, you’re giving information for both the right and the left.
LESSIG: Yes. Well one you didn’t mention was the Americans for Campaign Reform, which is an organization which explicitly imbeds a significant number of strong republicans who support this kind of reform. But I agree with you, the perception about this issue is that it’s somehow related to the left. And that is just a mistake. This issue is not just related to the left, I mean no doubt that issues on the left get blocked by status quo funding, and so I’m not denying that. But it’s also issues on the right that get blocked by the status quo the way it is.
So Herman Cain comes forward with this idea of the 999 tax plan, that plan would radically change the opportunity of members of congress to raise money to get back to congress. Because if they don’t have a million special privileges to hand out through their targeted and temporary tax benefits, they don’t have a million people to call on the telephone to say, you need to be helping me in this campaign if we’re going to be able to get this tax provision through, right. So the point is the people who want simpler taxes are against the extraordinary pressure that comes from a system of funding campaigns that depends upon complex taxes.
Same thing with smaller government, I tell the story of Al Gore of suggesting that we they deregulate a critical part of Internet infrastructure, and his staff were being told by people on the Hill, hell no, if we deregulate these guys, how are we going to raise money from them? And that’s the same kind of dynamic, you begin to think, wow, you think about who to regulate and how far to reach the tentacles of government in part as a function of whether we’ll have somebody to call when the election season comes around to get money to fund our campaigns. So if you want smaller government, or simpler taxes, you’ve got to realize, we have a conflict in interest between the current way of funding campaigns and your objectives that we will never get over, and so congressmen will be free to make decisions on the basis of what their actual principles believe.
There’s a great book by Robert Kaiser, ”So Damn Much Money” from the Washington Post, and he tells the extraordinary story of the Gingrich control where the Gingrich people you know come into congress, they have all these ideas about coming back in government. And there’s an explicit meeting where they decide they need to relax their commitment to these principles, so as to support some of the people who are going to better able to fund their campaigns, because they need to keep control, that’s the important thing first, and the principles come second. Well that’s always the way it’s going to be, so long as we have a system of privately funded elections.
LAMB: This is out of context, but I have to ask you about this, page 14. You I know you’ve talked about this before, but it’s the Yeltsin story that you got from Taylor Branch , who interviewed Bill Clinton or he did the tapes and all that. I’m going to read it, and then I’m going to ask you to embellish on it, because I don’t know that I’ve never seen it before. And Yeltsin was found by the Secret Service on the D.C. street in the predawn hours dressed only in underwear trying in vain to flag down a taxi to take him to get pizza. Yeltsin fumbled his chance at history all because of the lure of the bottle.
When I read that, I thought isn’t that interesting, we did not know that all during the Clinton years. And we’re dealing with this man who was the head of the Russia, and it seems to me that that’s an incredibly important little statement there.
LESSIG: Yes, but the question is what do you do in the middle of the administration when you need to depend on keeping a tight alliance with this person?
LAMB: Well you say though, you say, and we should certainly feel sorry for the millions who lost the chance of a certain kind of a free society because of this man’s dependency.
LESSIG: Yes, the point of this whole section of the book is to try to suggest the kind of problem we’re dealing with here. You know and so as I say, I don’t think we’re dealing with criminals, I don’t think we’re dealing with people like Rod Blagojevich or Randy Duke Cunningham. We’re dealing with people who want to do the right thing, like Yeltsin, he wanted to save his nation from an authoritarian past. But even when you have the chance to save a great nation like Russia from an authoritarian past, even then you don’t have the strength to resist the temptation of your addiction, in that context, the addiction was to alcohol.
And the bathos of that story, right, this man who is finding himself incapable of doing the one thing that will define him as a world historical leader, because of his dependency you know makes it easier to understand the kind of dynamic we see inside of all sorts of institutions. And the one I’m talking about in this book is congress. Here you have people going to congress, the very same way wanting more than anything to do the right thing, but they can’t help but be inside this addiction to raising money. Now the one thing I would have done differently if I could rewrite the book is many people drink because they like to drink. The better addition here is cigarettes, most people don’t want to be addicted to cigarettes, but they just are, they can’t break it. And that’s actually a better picture here, because these are these are not people who love to raise money, they hate this they hate this they hate it.
More and more, they live with it, they don’t want to change the system, because the system actually will eventually benefit them in ways I also talk about in the book. But it’s not the picture of great leaders, it’s not who our leaders were, even 40 years ago. And it’s radically weakening the capacity of this government to do what’s right, whether what’s right is on the right, or what’s right is on the left, depending on what the people say.
LAMB: Not to dwell on it, but how does a man like Yeltsin get out in the street with his underwear when you’ve got Secret Service that are assigned to him when he’s here in this country? I mean is this do you think this is really true?
LESSIG: You know it’s been I’ve had a couple of sources for this, I do think it’s true. I don’t know quite how it happens, I have no clue about how it happens, yes.
LAMB: Chapter two, you write, ”We spend billions running agencies designed to ensure the safety of the stuff we put in our mouths. How could it possibly be that the safety of something a baby puts into his mouth could still be in doubt? A hundred years of consumer safety law haven’t left something as obvious as that untested?” I guess the question here you write about billions having been spent already on regulation, and it hasn’t worked. Why would we want to spend billions more?
LESSIG: Well the point I’m making in this part of the book is about what are the conditions for trust? And so what I do there is I’m talking about BPA. And I say you know is BPA ...
LAMB: Which is what?
LESSIG: Bisphenol A, which is our chemical it’s a it’s a it’s a estrogenic manmade estrogenic chemical. And the thing about estrogen, as I describe in the book, is that at certain moments in the development of a fetus, estrogen is actually very dangerous, so the body develops or the fetus develops a protection against it. And the question that was raised by people about BPA is, did the body protect against this manmade estrogenic chemical? And it turned out, as Vonsol and other researchers discovered, it didn’t.
So this chemical was affecting the development, or could be affecting the development of the fetus, so they began testing it, and they were very concerned, Vonsol and all his researchers, that in fact this was a disaster for the development of fetuses, and obviously the later diseases that they would be afflicted with.
So the question is, is it actually dangerous? Now the point I’m making in the book is, it’s a there’s lots of research out there going in both directions, and when most people hear that, they say, well, it’s a contested field, we don’t know what the answer is. But when you separate out the research on the basic of basis of who funded the research, it turns out overwhelmingly the fund the research funded by industry finds no problem, and the research funded independent of industry finds a problem. So when people hear that, then their attitude changes. Now they’re saying, oh, wait a minute, maybe this is not just a happy coincidence, maybe there’s something about the research that’s biased it in one way for either side maybe you would say.
But the point is, the conditions under which we need to trust the claim, this is safe, don’t exist where we have this kind of funding to undermine our reasons to have faith in it. There’s this I do the same thing in a number of areas, and we actually at Harvard did some tests about people’s attitudes as you begin to suggest to them different funding mechanisms. And what we found was quite it was quite striking and startling, the extent to which this is true. But you just have to suggest, even hint that there might be some funding relationship that undermines people’s confidence, and their confidence collapses in many cases.
Not in all cases, interestingly, some people like doctors may still are respected enough, other people like politicians, people assume they’re already corrupted. So there’s a gap between different professions, but the dynamic is the same. If you don’t build a system people have a reason to trust, they won’t trust it. And I’m using that in this part of the argument to say this is why we need to be worried about how we’re funding the election of members to congress. Because 75 percent of Americans right now believe money buys results in congress. And why is that? Well they see congressmen dancing around to attract the funding of the largest contributors to their campaigns you know the people on Occupy Wall Street are talking about we are the 99 percent, they should be saying, we are the 99.95 percent, those are the people who never give the maximum contribution to any candidate. Right, and it’s of course the maximum contribution that gets you on the radar screen of candidates and politicians.
LAMB: You quote two people on in the beginning of chapter 10, and as I read it, I’ll tell you what I did, and you can fill in the blanks. Consider two statements by two prominent republican, the first by Senator Tom Coburn, thousands of instances exist where appropriations are leveraged for fundraising dollars, or political capital. Then you quote Bradley Smith, former commission and federal elections commission chairman, the evidence is pretty overwhelming that money does not play much of a role in what goes on in terms of legislating voting patterns and the legislative behavior.
My first thought when I read that is, Tom Coburn isn’t going to run again, he’s from the most republican state in the union, he takes no chance whatsoever in taking this position. I’m not denigrating him, that was my first thought because all that we’ve gotten used to in this town. Then with Bradley Smith, I don’t know what he does, I assume he’s a lawyer, I assume he’s in law practice. He probably represents clients, and he’s saying something that would favor his clients. And so ...
LESSIG: Yes, so ...
LAMB: ... when can you ever get I’m not accusing either one of them of that, but we’re so cynical watching this process that here you go again.
LESSIG: Yes, so you’ve demonstrated my point precisely, you’ve looked at what you think is the influences that might be affecting both of them, and you’ve read the truth value of what they said, in light of these influences.
Now I think for both of them, there’s more integrity in what they’re saying. I think actually so Bradley Smith is a is a law professor at Capital University, he has a he has a works with a research group that does policy advocacy in this space. But he’s not a lawyer that depends upon his clients caring, he detects he believes that view. I think he ...
LAMB: But whoever writes his policies did.
LESSIG: Well that’s a that’s a question, and I think it’s a good question. It’s an important question, especially for academics.
LAMB: Another one I want to ask you about in this same thing is you have the tea party and you have Occupy Wall Street. I’ve watched the conservatives say the tea party’s great, non-racist, and I’ve watched the liberals say the Occupy Wall Street is fabulous, non-racist. And then I’ve watched each other point the finger at one another. And how do how do you get through the truth of all this?
LESSIG: Yes, so that’s a different dynamic, I think. You know one of the biggest problems that we have, and it’s great to be at CSPAN and talk about this, because you’re an exception I think to this problem. Media right now has become so competitive that the only way to compete is to become more polarized. So there’s a business model of teaching each teaching us to hate each other, right, and that’s the only way we drive sales, right, of advertising. And that’s true on the left and on the right.
And so it’s extremely hard on either of these two extremes to get people to recognize that maybe it’s not as simple as you want to as Fox News would present it, or as MSNBC would present it. And in fact, we had a we had a conference co-sponsored by the Tea Party Patriots at Harvard about calling for a constitutional convention. And Mark Meckler, one of the founders of the Tea Party Patriots, made a very empowering speech about resisting the business model of hate. And that we you know people are out there who depend upon dividing us and finding a way to show us why we don’t like each other.
But we need to work in context where we can find common ground. And I think that the tea party and Occupy Wall Street in particular, if the populous in those movements were allowed to spend enough time together, would find a common ground, even though the talking heads at the very top of each of these organizations might not want to see the common ground.
LAMB: I’ve seen you twice on the Rachel Maddow Show. Have you been asked to be on Fox?
LESSIG: I was on Fox, Fox and Friends. And I’m eager to be on Fox.
LAMB: And how did they treat you?
LESSIG: Perfectly respectfully, yes.
LAMB: So why would the Fox, MSNBC who were so much at each other’s throats treat you fairly in the process?
LESSIG: Yes, well I haven’t had as much of a chance on Fox as I’ve had on Rachel Maddow, I was part of a panel, and we weren’t discussing the book. And when they introduced the book, they called it ”Republic Lost”, and they didn’t read the part that was how money corrupts congress, and a plan to stop it. So it’s not that I think that we’ve had equal time, but I do think that there are people on Fox, in particular Bill O’Reilly, who sees the problem in a way that we should be able to connect. I mean he got on Jon Stewart and both of them said, yes, the root problem here is the corruption of this system, and O’Reilly talked about the pinheads on the left, and the pinheads on the right who spend all of their timing raising money, and answering to the people who give them their money rather than doing what their principles or what their people constituents would say.
And I think you know there’s a there’s that commonality there. But we’ve not yet seen Fox willing to openly embrace the charge that there’s a corruption in the political system that comes from money. If we did, that would be an enormous hope. I mean you know in the presidential campaign, the one candidate who’s not been allowed in any of these debates, who is both the most qualified from the standpoint of having the most time in government, he was a governor and four-term congressman, and having run a business for 20 years as a banker, Buddy Roemer you know of course his one argument here is that the system has been corrupted, and we need to find a way to get leaders who are quote free to lead.
Fox has not allowed that message to be prominent in the in the reporting of what this campaign is about. So you know of course we on the left who are suspicious of Fox look at this and say, this is because they like the system as it is. But I know there are people on that network, and O’Reilly is the leading one, who doesn’t like a system where that kind of corruption operates. And we should be able to find common ground on that issue.
LAMB: In your book, you have quite a long process of suggesting how this can all be changed, and people can buy your book and find out what it is. But in the end, you’re looking for a constitutional convention, and amendments to the constitution and all that. What chance do you give it given the influence of money in this town?
LESSIG: Yes, so the convention is the one gift our framers gave us of a way to deal with corruption of congress itself. So here’s congress that is the problem, a convention is a way around congress. Now I don’t give it a huge chance, but as I also describe in the book, there’s a woman who asked me this question at Dartmouth you know you’ve convinced me, she said, there is no hope. And I had this image of you know what if what if a doctor told me your son has terminal brain cancer, there’s nothing you can do? Would I do nothing? Right, and you recognize in that what love is about, right, and love is about acting even when it’s irrational to act.
And I think there’s a certain level of country you know soldiers on a theory much more attenuated than anything I’ve said about how to save a democracy, go off and risk their lives for love of country. And I want to practice and get others to practice a similar love of country, not to risk your life, but to fight as hard as you possibly can to reclaim a republic, which I think from any fair reading of what this nation is right now has been lost. So it’s not that I guarantee it can work, but I do think there’s no reason that’s no reason not to fight for it.
LAMB: Lawrence Lessig is the author, he’s a Professor at Harvard Law School, and runs the ethics center. The name of the book is ”Republic, Lost”, and the subtitle is, ”How Money Corrupts Congress, and a Plan to Stop It”. We thank you very much for joining us.
LESSIG: Thank you, Brian.