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Lawrence Lessig on corruption in Washington

Thursday, February 4, 2010
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HH: I’m joined now by Lawrence Lessig. Professor Lessig is a professor at Harvard Law School. Before that, he taught at Stanford, the University of Chicago Law School. He’s a native of South Dakota, originally graduated from the University of Pennsylvania, did some time over at the University of Cambridge in England, and got his juris doctorate from Yale Law School. He’s been a guest before, but he’s back today. Welcome, Professor Lessig, good to have you.

LL: Great to be back.

HH: Now it is because of your article in today’s Nation that we’re going to talk. The article is entitled How To Get Our Democracy Back. And the summary, the bottom line of it is three propositions – you want citizen-funded elections, you want a seven year ban on ex-Congressmen lobbying, and you want a Constitutional convention. Fair summary?

LL: Good summary.

HH: I want to get to each of those, and we have enough time in the next three or four segments. But I want to start by setting up for people who haven’t heard you before, don’t know about you, who you are. You supported President Obama, correct?

LL: I did.

HH: And you knew him from the University of Chicago?

LL: I did.

HH: How well?

LL: You know, he wasn’t a close buddy, but we went to dinner, and I knew him, you know, as a friend. He was on the faculty. It was a small faculty.

HH: Did you ever see him teach?

LL: No, I never saw him teach.

HH: Do you have any opinion of his scholarly output?

LL: Well, he was not, what he was doing at the time was practicing law while being a professor. So he was not the typical scholar who produces articles. He was producing great students. I knew a lot of people who loved him as a teacher. But he was also practicing law.

HH: How would you describe his intellectual roots?

LL: You know, I couldn’t say what his roots are. I know the experience in that context, especially at the University of Chicago, which has got a very large number of brilliant, conservative scholars. It’s one to make even a liberal much more aware of the way the world is.

HH: But did he bring any settled convictions with him to the White House? That’s what I’m driving at here, Professor Lessig.

LL: Yeah, I can’t answer that. I don’t know what the answer to that question is.

HH: Are you familiar with Saul Alinsky?

LL: No, I don’t know him.

HH: You never read Rules For Radicals, or anything like that?

LL: No.

HH: Okay, I think he’s an Alinskyite, but I don’t think that that matters so much as your article is just drenched in disappointment with his first year.

LL: Criticism, that’s right.

HH: Is disappointment a fair word?

LL: Yeah, you know, the Nation saved me, actually, because the title as I sent it to them was The Tyranny Of Tiny Minds. And my point was that the administration was taken over by people who have very small conception of politics and potential here, and inconsistent with what I think Barack Obama had promised. And that’s produced, I think, a big chunk of the failures that we’ve seen so far.

HH: And so why do you think the gap is so great between what you expected of him and what he has delivered?

LL: I think that there was a critical moment in the history of the Obama administration where Obama took the advice of President Clinton, and turned over the selection of his administration to people who had a conception of politics that was different from at least the conception that Obama had originally pushed, a conception of pretty fundamental change or transformative change in the way Washington works. That was his constant rhetoric. And when they came in, they said, you know, change the way Washington worked, that’s great politics, great rhetoric for a campaign, but that’s not how we’re going to do anything. We’re going to do things the old-fashioned way, and that is to sit down with the very interests that Obama said he was going to change, and just deal with them. And it turns out he wasn’t able to deal with them in a way that got the kind of change that he wanted.

HH: Of course, as a conservative, I view the last year as a radical lurch to the left, and that Obamacare, the seizure of GM, the stimulus package, the constant embedding of the president on the television screen, is a radical fifteen months since his election. You, however, view it as profoundly statist?

LL: Yeah. So the point, the problem that I see with the way Washington works is a problem that conservatives should recognize as well as liberals who are progressive should recognize, as well as those who on the other side, because the problem of Washington, in my view, is that the fundraising Congress is essentially a status quo Congress. So that means it’s going to stop any reform from the left, and it’s not going to allow people on the right to produce smaller government or simpler taxes, because smaller government and simpler taxes makes it harder to raise money to get back into Congress. So for both the left and the right, the existing system is stopping the kind of change that either side promises, and it’s going to stay that way until we address the problem with Congress.

HH: Then how do you account, Professor Lessig, for this massive expansion of, proposed expansion, of President Obama’s health care plan into the private sector, the exchanges, the long dalliance with the public option, the massive tax hikes, just the increase in the amount of GDP that goes to the public sector. I mean my audience, which is a conservative audience, primarily, will sit there and say my goodness, what planet is this professor on? This is a huge lurch to the left.

LL: You know, you should look at who’s benefitting from this system, right? So it’s not going to the public sector. It’s going to private insurance companies, and it’s going to drug companies. Now the Obama administration sat down and struck a deal with the drug companies, said to the drug companies we promise, just like George Bush did, we’re not going to try to buy in bulk our drugs from you, so we’re going to pay retail for wholesale purchases, and sat down with the insurance companies and said yeah, yeah, we’ve been talking all about this public option stuff and so forth, but don’t worry, we’re neither going to attack your antitrust immunity, which of course allows them to engage in a kind of collusive behavior that no other industry gets to at the same level, and we’re going to basically create a system where we force people into buying your insurance policies. Now both of those, of course, are changes, but they are changes that prefer and benefit the powerful status quo influence here that has effectively taken over in this debate in the context of Washington.

HH: But he championed a public option from beginning to end. It’s simply that the American people, speaking through their representatives, don’t want that. They don’t wan a Canadian health care system, or an English health care system, or any variant thereof, even though in your article in the Nation, you cite that Evan Bayh betrayed the people of Indiana who wanted a public option. I’m just unfamiliar with where you get that data from, Professor.

LL: Well, I’m happy to point you, you know, to specifically where the data comes from, because the polling of this has been quite extensive from the very beginning. But you know, whatever Obama said, and of course he did say that he was pushing for this public option, my point is you know, you don’t have to agree with what his policy objectives were to recognize why he is being stopped in his policy objectives. And my argument is you need to begin to recognize, especially people on the right, that the reason he’s being stopped is the same reason that twenty years of conservative presidents out of the last 29 has not been able to produce smaller government or simpler taxes. The existing system of fundraising Congress, Congress is constantly looking to those people who are going to help them raise the money they need to get back into office, and policy gets sold to those interests.

HH: And I simply reject that, and I think most of my listeners will. The reason that we didn’t get enough is that indeed, public officials do public choice sort of things, and they buy votes with programs. But the reason he got stopped is he reached about twenty bridges too far to the left. It’s not about Congressmen being in the thrall of special interest, but because the American people don’t want what Obama is selling. They just don’t want it.

LL: You may be right about what the American people want versus what Obama wants, and you know, I’m not an expert on that. I’m not going to try to make an argument about that. But there is no doubt, if you look at the particulars of the programs that he’s been trying to push, that they’ve been stymied and stopped by exactly those kind of interests. I mean, for example, look at the Consumer Financial Protection Agency act, which of course you’re not going to like, and I’m certainly most of your listeners are not going to like. But this act, which was to create certain rules to protecting credit contacts, has been filled with, riddled with exemptions to special interests who have succeeded in buying off particular Congress people. So look at the exemption that was made for used car dealers at the behest of John Campbell of California, who himself is a landlord to six used car dealers, gets up to six million dollars in rent from them, who sees about $170,000 dollars in contributions from car dealers. He got an exemption for used car dealers, and he got that because Democrats receiving contributions from them two to one over those who didn’t supported that change.

HH: Hold that thought. We know Congressman Campbell quite well. I’m going to come back and talk to you about that right after the break, America.

– – – –

HH: His article, How To Get Our Democracy Back, is in the current issue of the Nation. It blasts President Obama and his senior staff. It also blasts Congressman John Campbell, who’s been on this program. What do you know about Congressman Campbell, Professor Lessig?

LL: I just told you what I was talking about with respect to Congressman Campbell.

HH: But I mean, do you know anything about his background?

LL: No, he’s not my Congressman, no.

HH: Would it have been germane to the proposition you made in your article that he had himself been a car dealer for many, many years?

LL: No, in fact, I did know that. You’re right. He was a car dealer for many years.

HH: And would it have been germane that he is very, very well off, and doesn’t require, actually, any financial contributions whatsoever?

LL: No, it’s not germane, because the question of my article, the question of my whole point about the way Congress behaves is not to criticize whether any person’s soul has been bought. As you’ll remember from the article, I say I don’t care whether you actually believe that any particular Congressman’s vote has been changed by the money. The thing that we know is that the vast majority of Americans, and in California, almost 90% believe that money buys results in Congress. And in that particular example about John Campbell, what I said was Campbell, of course, is Republican. He doesn’t have control over that committee that created the exemption for used care dealers. But the Democrats who voted for the exemption for used car dealers had received two times the contributions from car dealers that those who voted against it did. And of course, those Democrats who voted for it were not themselves used car dealers.

HH: But what I’m reading here, I’ll read exactly, “Republican John Campbell, a California landlord, who in 2008 received, as ethics reports indicate, between $600,000 and $6 million in rent from used car dealers who successfully inserted an amendment into the Consumer Financial Protection Agency Act to exempt car dealers from financial rules to protect consumers.” That’s all you said about him. I think that’s one of the most profoundly unfair single sentences I’ve ever read, because I know…

LL: What’s unfair about it?

HH: One, he does not just, you didn’t mention that he was a car dealer, that he might know the industry very, very well. You didn’t mention that his own wealth would indicate he is not dependent upon contributions. And you didn’t mention the fact that he’s a landlord because he sold the dealerships in order to enter Congress, not because he got into it, or that he has new car dealers in addition to used car dealers. I think it was sophistry at its absolute worst in order to make a point, which you imply, that John Campbell is bought and sold for, by used car dealers. I mean, it’s just, it’s outrageous, Professor.

LL: Yeah, but you know, look, the point of the article, and you know this because you’ve read it and your listeners haven’t, the point of the article is to say that it’s not the question about whether a particular Congressperson has had his soul stolen by money. The point of the article is in the system of fundraising that we’ve got right now, people will consistently see people behaving against the interests of their constituents, and for the interests of the money, and constantly ask the question is it money that bough the results? I mean, it’s a story that I didn’t tell in this article, but I’ve told many other times before. Think about Hillary Clinton. When Hillary Clinton was first lady, she is credited with successfully stopping the bankruptcy bill from becoming law under Bill Clinton. Two years later, she’s Senator Clinton. As Senator Clinton, she votes for the very same bill which she called that awful bill, with a small b, twice. Now between the time that she was first lady and Senator, she received $140,000 dollars in campaign contributions. Now when you tell that to any average American, they immediately think they know exactly why she switched her vote, and it’s because of the money, even though, you know, I think there are a thousand reasons why she could have decided to vote differently now that she was a New York Senator versus a first lady. But the point is in our current political context, nobody’s going to listen to that stuff, because we are so primed to believe it’s money that’s buying results.

HH: But Professor Lessig, you missed my point. One of the other parts of your article is that faith in Congress has collapsed because people have zero, not zero, but very low levels of trust and confidence in them because they despise the inauthentic. Now you want them to trust your prescriptions, which we’re going to talk about shortly, but if in the course of reaching those prescriptions you sideswipe a good man who is serving the public interest, and you suggest, implicitly, that in fact his soul has been stolen by the money, which no one, no fair objective observer, reader of this article could otherwise conclude, why in the world would they trust you prescriptions if you are dishonest in the presentation of your evidence in support of them?

LL: Yeah, but let’s be clear about what you say is dishonest here. I lay this out in a way to suggest that the exemption, at least in the context of California, makes no sense for the constituents of California.

HH: I disagree with that.

LL: He has behaved in a way that…

HH: You don’t, you do not do that. You have a one line sentence here, Professor, which I’ll read again if you’d like me to, that makes none of those explanations. You imply John Campbell sold his vote to the car dealers.

LL: Yeah, what I say in the context of the whole list of those, right, so you want to read the rest of it to the people that I’m talking about in that context?

HH: I’d be happy to. “At a norm, even imaginable in D.C. today, compare Stennis with Max Baucus, who has gladly opened his campaign chest to $3.3 million in contributions from the health care and insurance industries at a time when he controlled health care in the Senate. Or Senators Lieberman, Bayh and Nelson, who took millions from the insurance industry, or any number of blue dog Democrats in the House who did the same, including Mike Ross, or Republican John Campbell.” In other words, a list of people who took money and acted as a result of the money they took. It’s slanderous, really, Professor Lessig, and I don’t know that I can trust anything you write when you do so little investigation into a man of good character and great public service that I know personally. But I’ll come back and let you answer that as soon as we get back from the break.

– – – –

HH: I want to go back, one more round on John Campbell, Professor. You write right after that list of people who’ve taken from in Congress, including John Campbell, or money from contributions, “The list is endless, the practice open and notorious. Since the time of Rome, historians have taught that while corruption is a part of every society, the only dangerous corruption comes when the society has lost any sense of shame. Washington has lost its sense of shame.” Isn’t it fair for any reader to conclude that John Campbell, and everyone else you mentioned here – Evan Bayh, Lieberman, Melissa Bean, Walter Minnick, are corrupt, their practices open and notorious, that…

LL: No, absolutely not.

HH: Oh, that’s just ridiculous.

LL: And that’s because of what you didn’t read, okay? So let’s go back to what you didn’t read. Before we got to the examples that you were talking about, I was telling the story of Senator John Stennis, who when he was the head of the Armed Services Committee, was asked by a colleague to hold a fundraiser for Defense Department contractors. And as I quote from Robert Kaiser’s book, Stennis’ response to that was would that be proper? I hold life and death over these companies. I don’t think it would be proper for me to take money from them. And the very next sentence is, “Is such a norm even imaginable in D.C. today?” So then I go through a whole list of examples of people who have, contrary to Stennis, taken money from the people that they’re regulating, and acting in a particular way. But…and that’s not to say that they’ve sold out, but it’s just to say that Stennis set up a norm, and represented a kind of norm that was common in Congress at the time. That has changed. So contrary to your, let’s say, slanderous characterization of what I wrote, I wasn’t saying that he sold his vote. I’m saying his behavior, like the behavior of the Democrats that I point to, like Max Baucus or the blue dog Democrats, or Melissa Bean or Walter Minnick, his behavior is like all these other people’s behavior – taking money in the context from people they regulate, contrary to the norm that Stennis was establishing.

HH: And I would encourage everyone to go and read the article for themselves, and I defy them to come to the conclusion that you have just proffered, that it is not an indictment of their ethics, because it is most clearly an indictment of everyone’s whose named ethics, it’s most clearly in equating their practices with corruption. And you use those words, and you compare it to Rome, Professor.

LL: That’s exactly right, but let’s understand what kind of corruption am I talking about? I explicitly say that I’m not talking about the kind of corruption of somebody being convicted of bribery. And in fact, I explicitly say in the place where it says this is corruption, do you have that part of the article in front of you?

HH: I’m looking at, “The only truly dangerous corruption comes when the society has lost any sense of shame.” And I think it is slanderous…

LL: The shame…but again, where do I say…

HH: …to say that these people have lost a sense of shame. I mean, own what you wrote, Professor.

LL: When I define, when I define corruption, this is what I say. This is corruption, not the corruption of bribes, nor of any other crime known to Title XVIII of the U.S. Code. Instead, it is corruption of the faith Americans have in the core institution of our democracy. The vast majority of Americans believe money buys results in Congress. And whether that belief is true or not, the damage is the same. The democracy is feigned, okay? So you’re attacking me on the basis of a definition of corruption that is not my definition. Now it’s good radio. I understand. It makes for a good attack. But don’t stand on your high ground and tell me that I’m being disingenuous and dishonest and slanderous when you, right, one paragraph before this section you were quoting, could have read a section that made it clear that the kind of corruption I’m talking about is not bribery. I’m not talking about John Campbell selling his soul. I’m talking about John Campbell participating in a culture that is Washington, where the people they regulate, they get money for. You take money from the people you regulate.

HH: Are you not saying that Max Baucus, Senator Lieberman…

LL: That’s the sort of things John Stennis thought was wrong…

HH: …Evan Bayh, Ben Nelson, John Campbell have lost their sense of shame?

LL: The shame about the…

HH: It’s not a hard question, Professor.

LL: The answer is that John Stennis said…

HH: Have you not said that?

LL: I…first of all, I said Stennis is the one that had the high principle.

HH: What is it, this is like angels on the head of a pin, Professor. This is not hard. You slammed these people. You drive by, and I don’t know any one of them except John Campbell. And you expect people to trust your prescriptions for the country when you are so cavalier about the reputations of people who you’ve done nothing to investigate, about whom you know nothing, and about whom your attributions are truly slanderous. I can’t believe that.

LL: Hugh, you are smart enough, right, to distinguish between saying that somebody has sold his vote…

HH: I know when you have dishonored someone. You have dishonored each person in here, and you are not owning it.

LL: Are you not going to let me respond?

HH: You have slammed them.

LL: Or are you going…

HH: Of course I’m going to let you respond. But I’m not going to let you filibuster.

LL: Are you trying to cut me off? You’re just going to talk over me? You’re just going to constantly sort of make this sound like you’re debating, or sound like you’re engaging, when in fact all you’re doing is the most disingenuous, dishonest kind of exchange you can have? Look…

HH: As that paragraph you wrote was.

LL: I am not saying, and I explicitly say, let me read it to you again. This is not, this is corruption. This is not the corruption of bribes, right? That’s what I say. You see that one or two paragraphs before.

HH: I know that. I didn’t say that.

LL: You see that, Hugh? That’s what this is about.

HH: I said you dishonored these people. You slandered them. You accused them of shamelessness. You accused them of having no honor. The one I know has an extraordinary sense of honor, and I’m rising to defend my friend against a slander that you did not even investigate in the least. I am shocked that a Harvard professor would do this.

LL: Excuse me, but the slander, if you want to call it that, the charge that’s the sense of lack of shame that he has, is completely substantiated by the facts, where the lack of shame is the norm, the standard, that Stennis had, the standard that said you don’t raise money from the people you’re regulating. That’s the principle. And that principle is no longer existing in Washington. Now you might believe in the world where Congress sells itself in this way, where it says oh, I’m going to regulate you, so give me all the money in the world. That’s the game that Washington plays. That’s why government is so big. I told a story elsewhere about how when the thought was to deregulate the telecommunications industry, the staffer who took that to the Hill reported back to me. The thing that came back was hell no, we’re not going to deregulate these people. If we deregulate them, how are we ever going to raise money from them. So the point is, this dynamic, this standard that I say Stennis lived up to, and these Congressmen don’t, is a different kind of standard. And it’s the shame about, it’s the shame of giving up on that principle, that idea of how government should function. Now you might not like it. You might believe that there’s a perfectly good way to run government. I disagree with you. But I’m not saying…

HH: Did you…I want to move on to your Constitutional convention argument.

LL: I didn’t say, for an honest read, I didn’t say Campbell sold his vote.

HH: Well, we disagree. We disagree on how you read this. But let me ask you. Did you call Congressman Campbell?

LL: No, I didn’t call Congressman…for the argument I’m making, what is the fact that might possibly be revealed?

HH: Might there be any explanation at all…

LL: I’m saying that he took money from the people he was regulating.

HH: Might there be any explanation at all as to why he made this amendment about which I’m not ever certain that he made, but I’m trusting that you got that right at least, do you think it would have been germane at all in the context of this article to call the people about whom you’re writing, and ask for an explanation?

LL: There is no explanation to be asked for is what I’m saying is that they’re taking money in the context of the people they’re regulating. That’s all I’m saying.

HH: All right. I hear you.

LL: There is an explanation that they didn’t take it, that in fact these contribution reports are false?

HH: I hear you. You didn’t call them. We have one more segment coming up. I’ll come back and we’ll get to the Constitutional convention.

– – – –

HH: Professor Lessig, did you vote in the Massachusetts special election?

LL: Yes, I did.

HH: Who’d you vote for?

LL: It’s a secret ballot, right?

HH: Yeah, I can’t force you. I’m just asking.

LL: I voted for Brown.

HH: And why? That is consistent with your article, and that’s what I was looking for.

LL: Yeah, because I believe that there’s a change here needed.

HH: And what did Scott Brown’s election stand for? What’s the proposition that ought to be read into that?

LL: I think it’s a proposition that many of us, I think people on the right and the left both feel, that there’s something fundamentally broken about the way the government’s functioning.

HH: And should, from that vote, the President and the House and the Senate agree that Obamacare ought not to pass, or at least that the people of Massachusetts do not want Obamacare to pass?

LL: I think that’s too specific.

HH: So that was not what that election was about?

LL: No, I don’t think that…being a Massachusetts person, being in Massachusetts during the election. I don’t think that’s what it felt like it was about. It was a kind of frustration and anger that you know, I think is boiling up all over the place, from the far left and the far right, lots of people who just think this system is broken.

HH: Now if someone is listening, and they conclude that you either have misjudged it or are purposefully not reading it the way they read it, because most of the people who listen to this show believe the election of Scott Brown was a referendum on Obamacare, and possibly KSM’s trial, why would they trust especially the kind of people who would be sent to a Constitutional convention, academics, elites, intellectuals, to do anything to remake the Constitution of the United States? Why would they trust you, Professor Lessig?

LL: Well, I’m not asking for people to trust me. And I’m not running for any office. And I’m not running to be a delegate in any convention. And I don’t think a convention would be filled with academics and scholars or the elite, especially is the convention happens, it’s because it’s going to be pushed by something like, for example, the Tea Party movement, which is going to be not a movement of elites. But what people should do is they should make a judgment about whether they think this government is functioning. So I think you yourself have all sorts of contexts to believe the government is not functioning correctly. There are people who think, for example, we ought to have line item veto, people who think that we ought to have much stronger protections to make sure that government doesn’t go beyond limits set in the Bill of Rights. There are people who believe that, you know, like I believe, that we need much stronger protection to make sure that Congress is viewed by people as independent, and not dependent upon the funding…

HH: But you want public financing. And the public again and again when asked do not want public financing of elections. So…

LL: Actually, the polls are contrary to that. The polls, and we’ve just, there’s a poll running right now, but the latest poll from the Lake Group found that more Republicans, in fact, than Democrats outside of Washington, but sort of ordinary Republicans and Democrats identifying it’s more than 73% are supporting the idea of small dollar contributor public funding, which is what I’m supporting.

HH: I’m not familiar with that poll. It would be a departure from a long history of American public being opposed to public financing election, but I’ll go look for it. Lawrence Lessig, thank you for joining me, heated but fair. And the article is in www.thenation.com. It is titled How To Get Our Democracy Back.

End of interview.

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