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Ben Kaplan 01:02
Hey, it's Ben Kaplan. Today on Unpolitics. I'm chatting with Lawrence Lessig, professor of Law and Leadership at Harvard Law School, who has the uncommon distinction of being a legal scholar, political activist, prolific author, and US presidential candidate for the Democratic Party in 2016. Professor Lessig founded two influential nonprofits, Creative Commons and Equal Citizens and previously clerked for Justice Antonin Scalia on the US Supreme Court. Once called the most important thinker on intellectual property in the Internet era by the New Yorker, Lessig has recently focused his energies on solving institutional corruption within the federal government he says weakens American democracy. Some of his notable books include “They Don't Represent Us,” “Republic Last,” and, most recently, “How To Steal A Presidential Election,” which explores weaknesses in our current electoral system. So how do we ensure that our elected leaders remain responsive to the needs of their constituents, rather than the needs of campaign donors? And what can we do to make it less easy for corruption to hide amidst the labyrinth of government bureaucracy? Let's innovate. Lawrence, thank you so much for being on the show. And I'll start with a simple question, maybe a softball. Is our government broken?
Lawrence Lessig 02:16
You know, that's the sort of question you ask somebody to see if they're actually awake? Because if the answer is anything other than, obviously, then there's something wrong with the person you're asking your question of. And I think it's catastrophically broken in the sense that there's basically no important issue that we can tee up and address in a sensible way, because of really a collection of distortions in the incentives of politics, that make it so we attract the very worst. And they must respond to the very worst. And they have no reward for doing what's actually good for the country. And and it is, there's a lot of theories about how to fix it. But it's just clear that something's got to happen to fix it. One
Ben Kaplan 03:04
of the things that I think you highlight is this idea of where is the dependency? Where is our representation going? Who are we representing it's democracy is based on this idea that the people should be represented. And it was a radical idea that this would be the case. But how do you think about who is actually being represented in government? Now first, to define the problem? Who are politicians interested in representing? Yeah, so
Lawrence Lessig 03:34
they'll tell you they want to represent their constituents. But what we know is that they are dependent on their funders, you can think about the funders, as creating the opportunity for them to be able to be a candidate or to be able to run and, and obviously, in order to run, they're going to have to keep their funders happy. Boss Tweed used to say, I don't care who does the electing, as long as I do the nominating. And that's what the funders are doing. They're nominating effectively a nominating candidates who get to run for office. Now, it'd be one thing if the funders were all of us. Seattle has this really imaginative program called democracy vouchers where everybody gets a voucher that they can use to help fund their candidates that
Ben Kaplan 04:22
you can use. You're simply given a little bit of funds that now you can you're enabled to be the funder? Yes. Right.
Lawrence Lessig 04:28
And so a wide range of people are funders. And so when you say the city council people are dependent on their funders, that means they're dependent on the voters in the city of Seattle. That sounds like a good thing. But in the federal system. These members are dependent on a tiny, tiny fraction of the 1%. They spend 30 to 70% of their time dialing for dollars, begging for money, sycophants to these super wealthy people or special interests, begging them for the money they need to fund their campaign are to get their party back into power. And there is no way psychologically there is no way that they do that, without developing a constant sense, the sixth sense about how what they do, might affect their ability to raise money. Leslie Byrne, a Democrat from Virginia described that when she went to Congress, she was told by our colleagues, quote, always lean to the green. And then she went on to clarify, you know, he was not an environmentalist. Okay, trying to figure out what you need to say, to make sure the money flows into your campaign. And any system that produces that kind of dependence is a system that can't be driven by the real objective of democracy, which is that we are trying to do what all of us with the people in it together, once you've highlighted
Ben Kaplan 05:45
campaigns, I'll give you an example. I'm based in San Francisco, how familiar you are with San Francisco government issues. But I'm also concerned on the governance side after the campaign itself. I know, I know you are, too. But the issue is that San Francisco is a pretty rich city, it's a $14.6 billion budget, there's plenty of money to go around. But there's all of these entangled alliances that exists. So some of it is money based. But some of it's just like, I need support, I need the endorsement for the next election from this group. They have kind of huge nonprofits that get $100 million from the city, we know that the program that that nonprofit is doing to help with homelessness doesn't really work. But an elected official needs their support, they're going to be really upset, they're not going to give their support, their 100 million dollar gets turned off. So they just let it go, even though it's not in the best interest of the people. And if you multiply that on every elected official, and all of the money in the budget, and everyone is sort of doing the non optimal thing for the people of San Francisco, and the best thing you can do, there's no incentive to try to be the reformer, who takes that down, because you're just going to be out of office soon. So everyone just kind of lets it go. And then you have a situation where the city spends $700 million on homelessness with zero results, it doesn't really do anything, because everyone's just able to get elected. So how do you deal with that? I know you deal with a lot of things on the federal level. But to me, it's like super practical in your community that we've got to get on top of this. Yeah,
Lawrence Lessig 07:14
well, I would say, you know, what Oakland tried to do, but couldn't because it wasn't funded, and what saddle has done and what LA is considering doing in change the way that you get money into campaigns. So like the voucher system, which Oakland adopted and Seattle runs, would make it so that the support that you could be leveraging would be Democratic support through both people who are rallying to give you these vouchers, but also rallying to the members inside your campaign. And I think that the objective, like I know, you have a frame around this as corruption, and that's my frame to the objective is to identify the interests that undermine the effectiveness of a government to respond to the representative will of the people. And we see this, you know, not just in San Francisco, which I spent many years living in, we see it all across the country, I just came back from Cuba. And you know, it's such a deeply saddening experience, because it's an amazing, beautiful country, beautiful people, but burdened by a 65 year blockade that the United States has imposed against Cuba. And you sit back and think, why are we still imposing a blockade against Cuba, I mean, they don't have missiles, there's no Soviet Union, and they're not part of some evil conspiracy to take over the world with communism. And when you drill drill down, you discovered that there's a bunch of Cubans in Florida, who are getting $50 million in government contracts, to spread anti Cuban propaganda across Florida and into Cuba. So that, you know, their dream is that they're going to rise up and take over, you know, the government and then kick out the communists. But when you see that, like, we impose a incredibly burdensome blockade, that most people, most Americans have no clue of, the vast majority of Americans do not support, you know, a blockade that during COVID, we stopped oxygen from going into Cuba to stay to save people who were suffocating. We do all that because of this $50 million that's going into the pockets of Cubans in Florida. Begin to think like there's no area of government that isn't suffering from this kind of special interest, corruption that you've identified. When you're talking about San Francisco.
Ben Kaplan 09:46
We've identified the problem. The issue becomes how you fix it. When you talk to the political consultants. They're hired guns to win campaigns, they'll say, oh, campaign finance reform. That's not That's not a winning issue. People don't care about that because Is that doesn't what you're saying. Lawrence says that it affects everything we do. But for the average person, you know, they feel things in their wallet, they feel things that are on their streets if the streets aren't clean, these are practical issues. So I don't remember. I mean, maybe you have to go back to is it John McCain, someone who really made campaign finance reform a big thing, or it's just not regarded as a winning issue. So if people want if we want to elect people who cared about that, how would we do it when all the consultants say, you know, hey, voters don't based on that they're not going to that's insider baseball, that's not something that the average voter cares about?
Lawrence Lessig 10:35
Well, I think that in fact, the latest study, poll polling will consistently find corruption is one of the top issues that people will talk about for both local and the national government. Because I think most people look at what the government does and kind of read it through the lens of where is the money speaking? And so yes, it many politicians find it hard to take the issue up because they feel hypocritical on the one hand, doing everything they can to raise this money, and on the other hand, bemoaning the idea of money in politics. But I don't think that most people think it's an irrelevant issue. I think most people think it is, it is a fundamental issue. And we've not yet had great politicians since John McCain, and Barack Obama before he got elected to make this a fundamental issue. We've not had candidates who've, like rallied people to say that we can actually do something about this. And I think the reason for that is, most people don't think there is anything we can do about this. We did a poll at the beginning of my work on this subject. I mean, people
Ben Kaplan 11:42
just throw up their hands and say, it's like the wind, you can't change the wind. That's the way the wind blows in this right, we did a
Lawrence Lessig 11:49
poll and found 96% of people thought it was important to reduce the influence of money in politics. 91% didn't think it was possible. So that's the politics of resignation. Like, you know, we all wish we could fly like Superman, but we don't jump off of tall buildings, because we're pretty convinced we can't. And so if you think there's nothing you can do about it, then yes, they're not going to rally behind somebody who says they're going to do something about it, because you think it's impossible. But the point is, it's not impossible. And I think that if we can have more experiments like Seattle, maybe if Oakland convenient, finally open up what they passed in referendum, people can begin to see that you could have a kind of politics where the money on the inside was not actually calling all the shots, you had a reason to have confidence to have trust in the system, and not think it's just corrupted by money. I mean, you know, I don't support at all our F K's campaign. But RFK, I think resonates, has this, you know, way of talking about this issue in particular that resonates where people just feel the system is stacked against them and in favor of the money, well, address that directly, like say, we're gonna take that out, we're gonna get rid of that problem. We're gonna have a lot of problems left. But at least when we address those problems, we'll address them in the interest of the people of our district, or the people of our city or the people of our nation, and not the people who are funding these cocktail parties that raised the money I need to get elected.
Ben Kaplan 13:11
Well, and what are my beliefs, and then you can tell me if you agree or disagree, because I know, you look at a lot of holistic issues for the for the US government at the federal level. But I believe that there could be a movement around, you know, corruption and misaligned incentives at the local level, because I think you see it a lot more what the impact is, because local is, is very rooted, and it's maybe less ideological, it's like, you know, whether you have a pothole on your street or not, isn't, isn't a Democrat issue or a Republican issue, and anything else is just like, there's a pothole there. And to me, this framing of sort of misalignment of government wastes around corruption, locally, could resonate, because the corollary I think, is the budgets, meaning if you want to know where corruption is, and this is my belief, you go where the money goes. So I don't have to have a special task force and FBI investigation. I just look, where's a lot of money flowing in the San Francisco government? Where's there a concentration in a few number of people's or companies and I know what's going to be there. So what about this idea about, you know, maybe this is a local movement that grows into a federal movement, because people can feel it there rather than the other way around?
Lawrence Lessig 14:23
Yeah, I don't think it's rather than I think it's both. I think we've got to be able to fight both at the same time. You know, we don't have time at the federal level, to wait for the local level to get cured before we take on the federal level. And I think vice versa. You know, I saw San Francisco it felt to me go from like one of the greatest places to live in the country to a place it was really difficult to live in certain parts of that city just because of its utter failure to deal with the most obvious social issues that impacted that city. And so, you know, I don't think you've got time in San Francisco either to wait around to address these issues. So we've got it I think there's a unifying theme here that I think actually complement movements at the federal and local level, which is we've got to get a government that is responsive and not corrupt. And not corrupt is not a hard issue for most people understand some of that corruption is flat out by bribery, but it's a tiny fraction. That is flat out bribery. The much more fundamental kind of corruption that in flip that affects both federal and local and state government is this improper dependence like where you know, that you can count on that person to do what you want that person to do for you, because you are supplying them in sudden that they absolutely desperately need, whether it's campaign funds, or a certain kind of segment of support that, that makes us so they they're not free to do free, free as my friend buddy Roemer used to be the governor of Louisiana call it free to lead, like just free to do what they know is in the interest of their people. And so yes, I think you got to fight it at the local level. But that's also what we have to do at the federal level.
Ben Kaplan 15:56
What is your opinion on? Sometimes people propose solutions for this, which actually already existence in San Francisco city government, but elsewhere, like something like rank choice voting, for those of you who are listening who don't know, it's not, you're not just voting for a single candidate, but you might rank your preference of candidates. And it's almost like the pop culture reference, though. It's like the show survivor, like someone gets voted off and their votes get redistributed to next people, this is sometimes talked about as a way to have truly more representative government, because you're not just choosing between one or the other, you can actually see your preferences and your votes continue to count. In San Francisco, it sort of feels like politicians just adapt to it's a new game. So the rules of the game changed. It's the same game. They're just like, they just act differently. How do you feel about like rank choice voting or something that's not just public financing as a possible solution?
Lawrence Lessig 16:43
Well, I don't think rank choice voting on its own solves any problem. If it's the same system for funding campaigns, because you've got the same people who are funding, they're just funding a wider range of people. And so I'd love to see rank choice voting, in combination with the ability to remove this corrupting dependence inside of our government and remove the corrupting dependence give people a wider range of people to select from, I think you could see really productive reform under those two things put together, but one alone, I'm not sure it's gonna be enough. You're a
Ben Kaplan 17:17
legal scholar. So what also happens is, yes, there's money that can be donated to campaigns, but there's a lot of like, so called whether they're political action committees, independent independent expenditure expenditure committees, that don't have the same requirements, huge sums of money goes there. There's this requirement that they don't coordinate with the campaign, usually. So it's meant to be separate people can debate how closely that's followed, but supporters of those will say, hey, that's free speech. That's, you know, the act of donating is free speech. So how do you deal with that? Because even if we just like, let's say, got campaigns publicly financed, there's this whole notion of this other outside money that exists?
Lawrence Lessig 17:53
Yeah, that's a great point. These are what at the federal level we call super PACs. And another channel of my work, we're actually teeing up an initiative in Maine, that I'm willing to bet is going to lead to the Supreme Court declaring that states and the federal government have the legal ability, consistent with the First Amendment to limit contributions to independent political action committees. The decision that produced Super PACs has never been reviewed by the Supreme Court. And it rests on an obvious logical mistake wasn't obvious until Robert Menendez, my favorite senator, senator from New Jersey, demonstrated because the slower for federal court case a case called speech now versus FEC, the court said that the Supreme Court and three months before in a case called Citizens United, had held that you can't limit independent expenditures. Because if the expenditures are independent, they can't be involved in any quid pro quo, corruption. And the only basis for limiting contributions is the or expenditures was the risk of quid pro quo, corruption, this for that corruption,
Ben Kaplan 19:09
which is not even the type of corruption you're focused on your I mean, you said that's a percentage, but you're talking there's a lot of non quid pro quo type corruption,
Lawrence Lessig 19:17
right. But the Supreme Court hasn't quite gotten to meet, you know, up to my level yet. So but you know, they're still way behind. But the Supreme Court has said, the only basis for limiting political speech is quid pro quo corruption or the risk of quid pro quo corruption. If you're spending independently of a campaign, there's no quid pro quo. That's what independent means. Put it another way. If there's a quid pro quo, it's not independent. Okay. That's Supreme Court decision Citizens United, you can like or not, but it has certain logic behind it. Three months later, the lower federal court and in speech now vs FEC said, Well, if you can spend unlimited amounts of money because there's no risk of quid pro quo, you can contribute unlimited amounts of money to a political action committee that will then spend Money independently of campaign, because there's no risk of quid pro quo. That's the logical mistake Robert Menendez showed us it was a mistake. Because five years after that decision, he was indicted for a quid pro quo. He went entered into a deal with a Florida businessman where it was alleged he was found innocent, he wasn't convicted by the jury. So it was a quid pro quo with a Florida businessman. But the quo the the thing that businessman did was to give money to Menendez super PAC. So there you have a contribution to a Super PAC that plainly involves quid pro quo corruption. And so the idea that it couldn't is just obviously not true. Supreme Courts never addressed it. So we're teeing up an initiative to get that before the Supreme Court. And I'm willing to bet that by 2026, the courts gonna say yes, you can limit super PAC Control contributions to what we now call super PACs. If the court says that in relation to our main case, then a federal statute will come back to life that actually does limit contributions independent political action committee, so super PACs will have been dealt with that will still leave, you know, an incredible amount of work to make sure that we have other ways of funding campaigns to give us politicians who can be responsive to the people not to their tiny fraction of funders. So it's not like that's, you know, the end. It's the silver bullet that solves the problem of corruption. But it is a first critical step, because super PAC spending is the most divisive, most polarizing, most consequential spending that there is right now. And, and if we don't find a way to address that, then everything else we're talking about, it's just going to be meaningless.
Ben Kaplan 21:38
It's interesting, your notion of quid pro quo, because we have some very creative, corrupt politicians that figure out whatever the rules are, and that and that's why I sort of wonder about systemic change that doesn't allow corruption to fester. What I'll give you an example. San Francisco has very high profile case of the Head of Public Works, one of the biggest departments accepting a lot of bribes. So it's hard corruption, you know, taken away in handcuffs, kind of corruption. But how were those bribes made? Some of them were made to a nonprofit that did community good that raised, you know, I think it was like toys for kids and money was donated there. And he had an account there that he used to throw lavish parties that kind of solidified his influence in the city. And it was a complex web of entities that actually was quid pro quo. He just knew to do it through other entities. And it wasn't even a PAC or a Super PAC, or an independent experiment. It was like just a nonprofit that was meant to do good. And he found a way to have kind of a slush fund there. So how do we let's say we do all of this? Do politicians just keep getting more creative? You know, the rules of the game changed is find a way around it. What what do we do to sort of like stop that? Or is it just we just keep they find a new way? And we shut it down? And we just keep going? And that's that's what we do? Yeah,
Lawrence Lessig 23:01
well, you're gonna always have to find new, continue to press the to address the new ways that they come up with, I think there are things we can do to to reduce the strong drive to this kind of corruption. I mean, here's the least least popular idea that I have, at least at the federal level, at least for Congress, people, we radically under pay these people. You know, there's a huge number of members of Congress who literally sleep on the couch in their office, because they can't afford an apartment as well as a house where they live back in their district, or many
Ben Kaplan 23:37
have roommates. So they have roommate situation there because there have to keep to two locations. Sure.
Lawrence Lessig 23:42
And you know, many, most Americans say, well, these people are paid twice what the average three times what the average salary of Americans is, and that's true, but they're also living in the most expensive city that there is in the United States. And the point is, like, when they live this way, psychologically, they feel entitled to bend the system to benefit themselves, they feel like like I'm suffering for the public good. I can, like do this little thing to make it so I get some tiny payback. I mean, there's many of these congressmen who are eventually prosecuted are taking really small little bribes or little tiny favors. But they feel justified because they feel like they're suffering in the name of the public. And I think you know, countries like Singapore where you know, you to be a minister, you get paid a million dollars a year to be a minister. And the reason they do that is a million dollars a year you don't need to be corrupt. You don't need to be, you don't need to be need to be worrying about how you're going to get your money. I think million dollars is too much. But I would say, you know, for members of Congress, you should at least give them what we call a per diem a certain amount that they get for every day that they're there to cover the expenses of being there so that you know you can keep their salary as it is, but make it so they can afford to live in a way that doesn't lead them psychologically to feel like I'm entitled Got something more than what I what I deserve. And you know, a little bit of that happens at the local level too. You know, I think local governments are also, you know, filled with people who feel like they give more than they get ends. And so you're always going to have to be fighting this issue. And we get to attract a different kind of person into the system, no doubt. But, but I think one problem we've got to think about is whether we're actually valuing our, you know, representatives, at the level they ought to be valued at?
Ben Kaplan 25:31
Well, I think one corollary I would add, is that, I feel like the culture of this, so it's not just the individual person feeling like, Oh, I'm kind of undervalued, I'm struggling, I should take my piece, but it's also seeing other people do it around you the culture of that, that you have to stop because the culture is, yeah, everyone's doing it. Of course, you do this, if you're not doing this, then you know, you're not playing the game, right? And so there's, how do you break that culture too, because when it's sort of pervasive in a system, when there's misaligned incentives all over, you know, if you see the one person who stands up and says, I'm not gonna do it, and they sort of get snuffed out, then you're like, Well, I don't want to be like that person. So how do you change the culture of it to be there's a different culture than what exists now? Well,
Lawrence Lessig 26:20
I mean, I, again, I think the first thing is to make it so it's really realistic for people to be the kind of people we want to be our representatives to kind of live their life as representatives. And once it's realistic, like you've given them the support they need. I think we've got to be extremely punitive when we find people who've broken the rules, right? Extremely punitive. Like we have this weird criminal justice system where we are extremely punitive to people who probably can't do anything other than what they've done. Like, they're just so desperate, they're like, in a corner, they're just, there's nothing they can do, they have to behave in the way they do, or psychological reasons they behave that way, we're really punitive to them, but white collar criminals, we bend over backwards, to make sure that we don't disrupt their comfort in the world. You know, think about the 2008 financial crisis, the people who architected that crisis, how many of them went to jail? Exactly. 00, even though millions of people lost their houses, because of the instability they spread into our system. So I think that once you've got the system, right, like you're paying people what you ought to be paying people, and then you discover people who are breaking the rules, then you start making severe examples of them, so that the other people, you know, can say, well, whatever was the way of politics is changed. Now, we can't live like this anymore. And we're gonna have to either get out get another job, or, or live life according to the rules. And I have no problem with that. Because if you're taking a position of public trust, you have a double obligation. And that double obligation means that double penalties if you break it,
Ben Kaplan 27:53
what about tackling this idea of corruption from the other side, what I mean by that is, when you have really complex bureaucracies, complex governments complex rules, and then someone who can like get you out of that complexity, then that person has sort of kind of a valuable asset that they can monetize. Like, you know, Los Angeles was famous for, you know, there was it was hard to get a liquor license. And so there was these people who control the liquor license. And they would go to karaoke bars and say, like, yeah, you can wait a few years, you're gonna lose a lot of money, or you can work with me, and I'll get you this right away. So meaning, complexity and government bureaucracy, give us places for corruption to hide, do you agree? Do you agree? I know, it's a very different point than then sort of campaign finance, and then how people get in and but should we make it less easy for corruption to sort of thrive where you can't see it?
Lawrence Lessig 28:50
Well, look, I think you should make it less difficult, simply because it ought to be less difficult. Bureaucracy ought to be the easiest thing in the world you deal with, it shouldn't be complicated. And a second reason to make it less difficult is you're exactly right. When you make it difficult, you create these people have an opportunity to exploit the power they have. And so some of them will exploit the power, they have to make sure that they get what they want. When I was in San Francisco, we were renovating our house and our architect like set set up a meeting with some some inspector who was going to come and we're going to talk about where we're going to have to put a fire escape, and it was not going well. It was conversation with this bureaucrat. We're sitting in our living room talking about it, and he's very, he's very frustrated. And at a certain point, he says, I think we only thing we can do is to is to drill a hole in the ceiling into the living room and create a spiral staircase. That's the only solution. Now, that was literally the craziest thing. He could have said like there was just this and then he got up and he left and he was furious. He just walked out. And I said to the architect What the hell's going on there? And he said, Well, the problem is most of these guys expect a little something when they come you know whether it's like a bottle of scotch or like a small gift or something to, to, you know, to sort of signal your interest. And you know, you didn't give them anything. I said, You didn't tell me to give me anything. But they said, This is incredible. The idea that I gotta bribe the inspector to get him to allow me to put a fire escape someplace. That's reasonable. But yeah, I mean, when you create complicated, obscure bureaucracies, there are going to be people who try to exploit it. And so yes, let's make it as simple as we possibly can. And, you know, technology now, especially in Silicon Valley, technology should make this incredibly simple. Like if we could get the kind of updated infrastructure for Information Management, you know, given everybody has a cell phone, I mean, that's one thing that regardless of income, people at least have access to that kind of technology, we can build everything around an app interaction with government, you could radically lower the cost of government and increase the efficiency and brush out these places where that type of corruption could occur. And
Ben Kaplan 30:59
I know you're in the process of working on your thoughts, a book on AI and democracy than that is the ever since chat GPT and generative AI, that's the big topic. Does aI have a role to play in any of this? How do you see it impacting democracy? And could we actually use it as a tool to make our government more representative? How would that work? Yeah.
Lawrence Lessig 31:26
So you say, could we? And the answer is absolutely like, there's a ton of incredibly powerful AI. That's, that's being deployed right now to show, we can actually identify and push ideas that are supported by a wide range of the public much more efficiently and effectively than we could ever do with polling or even with citizen assembly. So for example, there's a there's a company called Crowd smart. And it's a company that was developed using AI technologies to make it trivially simple to gather the collective understanding of a public about some issue, like, you know, what's the problem? The problem is, we've got an absence of like healthy food in this neighborhood like, well, what's the way we could deal with this? Well, you can actually leverage the inherent understanding of the public in a way that would make it possible to do the right thing. So so the answer two, could we deploy AI in ways that make democracy better? Absolutely. I think there's a separate question, which is, what are where do we expect AI to be deployed? Will we expect it to be afoot to make democracy work better, or to make democracy work worse? Now, you know, the first contact as Tristan Harris, Center for humane technology puts it, the first contact we had with AI, was the contact through social media, and AI and social media is driven to maximize our engagement with the platform of social media. And, you know, AI doesn't care how it does that it just does whatever it needs to do to maximize our engagement. And it turns out, unfortunately, for us, we engage more of the more outrageous extreme hate filled polarizing the content is. So the unintended, let's hope consequence of this social media, AI driven platform is to make us a worse democracy than we otherwise would be. If that's not, in fact, what we're being fed, you know, 20 hours a day. So I fear AI is going to be deployed in ways that will make our democratic process less capable of functioning, because that's where the money is, as opposed to deploying it in places where it could actually improve the functioning of democracy. It could do both. But what it does depends on who's going to be pulling, who's going to be paying for the AI? Sure,
Ben Kaplan 33:52
well, it makes, AI can make a lot of things more productive. And you can do productive things for good and productive things for for bad or evil. Just as well, you can do it easier, I wonder, which is maybe a little bit of a radical notion for government. But I wonder if, in an ideal world AI could enable this, this idea that the government doesn't just exist to help the people in a broad sense, but like you, Lawrence, me, then could AI be this tool that says, government's really complicated, it's but you need to get, you know, Lawrence, you need this for your home remodel, then you need this for what you need for what you're doing with your two young girls. And we're going to help you get in a very personalized way sort of mass personalization. Exactly how your city government, your state government, your federal government, all the resources that you need to tap into, we're going to do it for you as individuals, so it's not the people, it's government for the person, kind of a radical idea, and maybe that's an idealistic view, but I wonder, could we have this type of I don't have a better word for it, but like it's almost like concierge service for you as a citizen to help you navigate your government better.
Lawrence Lessig 35:06
I mean, it's a great idea. And the answer is obviously, yes, obviously, you could do that. And indeed, the AI that exists right now, it's not hard to see how you could deploy that, pretty directly, it would take a commitment by governments, you know, meaning money, they don't typically have to make something like that work. And so it needs that investment. The other thing to worry about is the services a more efficient government might be competing with. So you know, there's a famous fight about whether the federal government would make it so that it would basically do your taxes for you, like every year, because it you know, for 90% of people who pay income tax, the government knows all the numbers, it needs to know, to figure out exactly how much income tax you're gonna pay it, because
Ben Kaplan 35:53
they got it from your employer, how much you're making that's submitted. They haven't they're you don't have complex financial structures, they know what you're supposed to do, right.
Lawrence Lessig 36:01
So like, in many countries, what the government would do every year is they would send you you know, it's like a credit card bill, they would send you a statement that says, we thought we think you made this much money, we think you spent this much on interest, or blah, blah, blah, and we think this is what you owe in taxes. And if you don't agree with it, you could like, you know, send it back and say, No, I think this is wrong. But the point is for 90% of people, the government would do your taxes for you, it would be just a kind of bill that you get just like Visa gives you a bill every month for your credit card charges. Well, when the government started pushing that idea into it, the maker of TurboTax started hiring lobbyists in Washington to do everything they could to stop the federal government from offering free taxes or free tax services, because it competed with into it. So here's your example, as applied to taxes, rather than you spending all your time trying to figure out taxes, the government says to you here, Ben, here's what you owe in taxes, write that check. And the only reason that didn't happen 10 years ago, is that you had special interests who were losing, if that happened, who had the ability to step in and stop it from happening. Now. Fortunately, the Biden administration has actually pushed forward with this, we're gonna see some version of this, um, California had an experiment around this. So I'm optimistic in 10 years, this would be kind of weird to imagine a day when you did your own taxes like this. But the reason it's taken so long is exactly that dynamic. We should worry about when you think about concierge service for government generally, like who's going to lose, and make sure that they don't have the ability to block this really important innovation? Well, and
Ben Kaplan 37:34
I think to me, I would even, I think, take it one step further. Because if you could do that, then imagine what you could do for something like college financial aid, something that I've worked on a lot, I've written some books about paying for higher education. And to me, the complexity of like whether it's the you know, the the FAFSA form, the Free Application for Federal Student Aid, and what you have to put together, if you could make that simple, there's a lot of families that don't realize they qualify for a lot of aid don't realize that even going to an expensive college might not be more out of pocket for them, because it's caught up in this, you know, maze of filling out forms. And so simplifying to me things like that could even be a foundation for more social mobility, more things that we probably value that, you know, your station in life is not just paying taxes, but your station in life should not be determined by how you were born. There's a way up from that if we can simplify things like that. Yes,
Lawrence Lessig 38:29
there's a great book by a real hero of mine, Jennifer Pahlka called recoating. America,
Ben Kaplan 38:36
we have had her on the podcast, yes, absolutely. Yes. Right. So she, that book tells
Lawrence Lessig 38:39
lots of stories of like, tech innovators, figuring out how you can take government services, and literally make it something you do from a cell phone, you know, replacing systems that literally required you faxing something to the government to get your benefits, you know, faxes, I mean, who has a fax machine this day, these days. But the point is, if you just invested in the idea of making services productive, you could change dramatically the government's relationship to the people. And here again, is kind of not so obvious. political interests spin, right. So you know, there is a political party in America who's very keen to convince people government is useless. There's no purpose for government, it's just corrupt, incapable of doing anything. And they like to celebrate its failure. And you know, the other side, Democrats depend on people believing the government can actually do things that's part of their mission, like government can actually make your life better if it does X, Y, and Z. And so it should do X, Y, and Z more efficiently. Right. And so you can see that play out in the way Washington works and where the House of Representatives works. You know, when the Republicans control the House of Representatives, they can't get anything done, because there's a faction of the Republican Party Freedom Caucus, who really just don't want government And to be functioning at all they want it to, they want to blow it up. So they like it when the government shuts down, or when it can't, you know, run the national parks or where when you know, the urban services can't be supported. And so it's very hard for them to hold their party together. Because one part really doesn't care about government. But when the Democrats control, they can hold them together. Because even though there's an extreme left on the Democratic Party, the extreme left at least wants the government to be able to deliver. And so, so to the extent you've got people who don't want government to function, they're going to resist the idea of making government function more efficiently. And I think what we should do is, you know, your insight here is really brilliant, I think we should start by making government function more efficiently, and give people a clearer sense that actually government could work. I mean, Jennifer talks in her book about during the COVID crisis, when you could go to a website and get free tests sent to your home. And that was a website stood up outside of the ordinary process, and it was stood up, like, you know, in like a week or something crazy short, and it was extremely efficient and extremely good. And people had this experience of like going and saying, Oh, my God, I've never done anything with a government that's been like this. And it reinforced belief that, you know, the government shouldn't be regulating everything in our life, it shouldn't be controlled, you know, we're a free society. So as little government as possible, but whatever government there is, let's at least make sure it does what it does in the most efficient, effective way that it can and that that I agree is a completely important objective, you actually
Ben Kaplan 41:34
raise up another point, which is just for the Democrats, and I'm a Democrat. When did we see this idea of like, cleaning up corrupt government to like, the folks who are like the drain the swamp, the all of that, like, oh, it's all crap. It's sort of like starts to live over there, that messaging and to me, and then any Democrats listening who are who are in office, there's a huge opportunity to sort of, say, within the Democrat Party, let's clean this up. Let's do it. We believe in what government can do for people, but it's not doing it. And then I don't know what that other divisions what you'd call, there's probably like an establishment group. And there's kind of an anti establishment saying, We've got to fix this. But I don't know when that argument of like, We're the party to take down corruption sort of went to the far right. And they started owning that.
Lawrence Lessig 42:22
Yeah, I mean, I think the problem is, in the Democratic Party, there are people responsible for getting Democrats elected. And there are people responsible for governing. And those two groups don't spend enough time with each other. Because if you talk to the people responsible for getting people elected, and you say, we're going to end the corrupting influence of money and politics, they're like, What the frick are you talking about? We need that money. I
Ben Kaplan 42:48
feel like in this race, we have twice as much money as aside, we don't want any of that. Right.
Lawrence Lessig 42:52
So so so then you say, but you know, the point is, you're going to build a system, you can't govern because you've got all of these super PAC, billionaires who were calling the shots, and they're never going to allow fundamental change that affects them. They're like, that's not my job. My job is to elect this person or elect this party into power. And I think the Democrats need to lean back and say, Look, we need a well functioning government, we need a government that can do its job cheaply. And effectively, it's too expensive for what it does, because it's so inefficient, in the way it does what it does. And it's inefficient, because we don't invest in it. I mean, look, Amazon's an extremely efficient company, compared to, you know, the US Post Office or whatever government related service there is. But you know, it's because Amazon spent ungodly amounts of money improving the efficiency of Amazon, like making it into an efficient company. And we could do the same thing inside of our government. But it requires recognizing that, you know, for Democrats, at least we only win if people believe there's a appropriate role for government and they have confidence that government can play that role. You know, when Ronald Reagan in 1981 said, government is not the solution, the government is the problem. You know, many people listen to that and thought it was kind of weird libertarian statement. And certainly on the left, people didn't agree with what Ronald Reagan said, I think the vast majority of Americans now believe the government is the problem, not because they're libertarian, but because they just think it's corrupt and inefficient, that it just can't work. So they don't deny they have problems.
Ben Kaplan 44:21
And you yourself, probably are actually saying that too. But you're saying there's a way to fix Absolutely,
Lawrence Lessig 44:26
we have to fix it, because we can't solve the problems that we face without an effective government. I, you know, I just think there's nothing to be done, about climate change, about the, you know, the inequality problems, the health care problems, not to mention, you know, the other negative side of government which you know, United States empire, America, where we spend ungodly amounts of money, building weapons of mass destruction that we sell across the world, in the name of what in the name of those companies who spend ungodly amounts of money to elect members of Congress and and keep the military in revolving door pay jobs. That means they their position will never be questioned. We have extraordinary range of problems we've got to solve by solving the corruption first. And then once we solve the corruption, then you know, we'll have a generation or two of, of trying to work out consequences of that
Ben Kaplan 45:17
you have a really interesting experience that not a lot of people get to do, which is in 2016, you ran for US president, what did that experience teach you for all of us who have no idea what that's like? And it's sort of do a campaign that is an outsider campaign, some call it a long shot campaign? What did you learn from that? Well,
Lawrence Lessig 45:39
so it's actually 2015. The life of the campaign was in 2015. And what I said was, I wanted to run a campaign that would make the corruption issue first. You know, it was like, we're going to fix this issue. Here's the bill, the anti corruption bill we're gonna pass. And what seemed like a gimmick, but it was really something I met quite seriously, it was a stupid thing to do. But this is what I promised, I said, we would get this bill passed. And once you get it passed, I would step aside, like my whole job was to pass this, this anti corruption legislation to make it so we can have a Congress that could actually represent people. And at first I said, Look, if I can raise a million dollars in 38 days, I'll run. In August of 2015, we raised a million dollars in like two and a half weeks of am I committed to running and, you know, the gamba, the gambit was, you know, obviously, nobody expected there was a significant chance I could be elected, although, you know, I didn't run not thinking I could be elected. But it's not like I expected that was the 50% probability. But what I did expect is that I would at least have the chance to be on a debate stage, and take every question and pivot it. So people understood how the corruption was actually making the question impossibly difficult to address. And so that alone was seemed to me a reason to to, to enter, because at least raising that awareness around this issue, especially in Democratic Party, would be important. And so, you know, we did calculations before I entered, and according to the rules, the Democratic Party had announced, it was pretty clear, I was going to qualify for the debate, I didn't qualify for the first one. Bloomberg editorial about that, you know, sort of pointed out the catch 22, that these polls that would qualify me, were not including me on the polling list. And so I was being excluded, because they were not including my name. And that was outrageous, because the support, other polls showed I had enough support. But on the second, for the second debate, the polls of liberal opened up a bit, and it was clear, I was going to qualify. And so we thought, Here it was, I'm going to be in the second debate. And at least that's a shot to open this issue up and make it central in the campaign. And then, the week, we just we determined that Friday, the Democratic campaign committee called my campaign manager and said, We're changing the rules. And your candidate does not qualify, and you should understand your candidate will never qualify, no matter what, we will not allow him on the debate stage. So you know, at that point, when it was clear that there was nothing, you know, there's no way I was going to be allowed to continue. Good to be on a debate stage. I couldn't continue to ask people to support the campaign. So I had to step aside. And this this fact, this, like what happened, you know, he wrote this up and published it. But the fact that this happened in this way, nobody could really believe it just was so crude and extreme. And so, you know, wasn't a story many people were talking about, but, but that's what happened. So you know what, I do it again? Well, gambling for the chance to be on a debate stage to make this issue Central. Yeah, I would do anything. It was extremely costly. For me personally, and financially, it was very difficult. But I would make that gamble. Because, you know, if, if, if I had that chance, I think, you know, we can make real progress on the issue. And the reality is, you know, the package that I was pushing is very similar to what John Sarbanes two years afterwards introduced as the for the people act. Nancy Pelosi made it her commitment to pass that bill, fundamental reform of our democracy. If the Democrats took control in 2019. They did. She did. So much. She promised you would pass it again. If the Democrats had control in 2021. We did. She did. And it went to the Senate controlled by the Democrats. And but for Kirsten cinema, and Joe Manchin, that bill would have passed and that bill was, you know, I think 85% as good as mine, but still, that's pretty good. It would have been the most important democracy reform legislation that America has passed since the Civil War. And we came so close to doing it. So that's a reason to be somewhat optimistic that this move this move And this movement can actually have an effect at least if we can get enough people in the Senate to bypass the insane filibuster.
Ben Kaplan 50:07
And what about some of the other things you've proposed? What is the state now of you've talked about? I'll give you a couple of them, which, you know, like a reformed Electoral College, a federal standard to end partisan gerrymandering in the States, a radically reformed Senate, what is the status of those now? Are there ones that are closer to others and maybe coming to life or in some limited way?
Lawrence Lessig 50:28
So the for the people act, which Nancy Pelosi said she would pass had a fundamental reform of gerrymandering, no more partisan gerrymandering for drawing congressional seats like the states had to solve their own problem. But Congress would have ended congressional gerrymandering that was incredible. But of course, it didn't pass the Electoral College won. You know, it's it's a more complicated story than people typically think. I mean, obviously, I support the idea of national popular vote. But that idea has become very partisan now. And if you imagine the need for a constitutional amendment, and some people think amendments not necessary, and we could talk about that, but if you think about this at a national level, it's a partisan resistance that makes it very hard to achieve. And so I think there's a second best solution here, which is pretty close to the best solution. And that would be to allocate electors in each state, proportionally, at a fractional level. So if you're a Republican, and in the state of California, you get 45% of the votes, you get exactly 45% of the electoral votes from California. And the reason that change is so important, is that in every presidential election, there's only a handful of states that matter. This election, there are six states that will decide who the President will be. those swing states get all of the campaigning, all of the attention, all of the policy gifts, you know, the gifts from the incumbent and the promises of gifts from the Challenger, because they're trying to woo those six states, those the only states they worry about. And so it turns out California is not one of those states, Kentucky is not one of those states, New York is not one of the states, Utah is not one of the states, all of these solidly red or solidly blue states are irrelevant to the election of the president. And so if you said to those irrelevant states, which you know, this cycle means 40 states are irrelevant to the President. If you said to those relevant states, look, if we allocated electors, proportionally, at a fractional level, every candidate would care about every vote, because you know, you could still be a Republican in California, especially,
Ben Kaplan 52:36
especially the big, big states, there's a lot of a lot of votes there in California, even as a Republican that you could get. And suddenly you would even care deeply about that you
Lawrence Lessig 52:44
get those votes, you'd get those electors, you'd get some electors for every votes that you get. And the point is, then every state would be in play. And you'd have a president who cared about every state in the country. And it seems to me that's a minimal obligation of a system for electing the president that you don't arbitrarily exclude for, you know, 40 of the 50 states from having any role in deciding who the President will be. So that change is something I think we could make. Nobody's pushing this right now at the federal level. But But I certainly think that's something we should do. And you know, between those two changes, you would do a lot to improve the system. The final one is the filibuster, which is the most frustrating, because there's such ignorance about what the filibuster is like, people talk about the filibuster, as if it's something that's been here forever. And though there's something called the filibuster that's been here, at least since the turn of last century. The reality is the modern filibuster, which is the device that any senator can use to stop consideration of a bill. And mean that it can only be debated. If 60 senators show up and vote to debate it, that modern filibuster was created by Mitch McConnell, in when Barack Obama became president, and that practice, that norm of blocking every major bill to require 60 votes to make it go forward, became a norm a political norm. That means that, you know, the only thing goes through the Senate, which means the only things that get passed are the most the things that can appeal to some of the most extreme in America. So if you take if you say that 60 votes are needed to get anything through the Senate, that means 41 votes can stop anything in the Senate. So let's take the 21 smallest states that supported Donald Trump by at least 10 points, those 21 smaller states would give you 42 votes. And those 21 smallest states would represent 21% of America's population. So that means we have a system where 21% of America's population has the ability to blog lack any legislation that goes through Congress, there is no democracy in the world where ordinary legislation is vetoed doable by 1/5 Representatives representing 1/5 of the nation or the or the states. And yet that's the consequences this filibuster now, it's all inside baseball, it's so complicated. People just find it very hard to even understand what you're talking about. I think the thing to just insist on is we need to have a government that has majoritarian that does what the majority wants, right? That was the fundamental idea Madison had in crafting our democracy. And we don't have that right now we have this, we have this unrepresentative representative democracy where the Senate gets to veto anything if at least 1/5 don't like it. And that's just not anything close to a functioning representative democracy.
Ben Kaplan 55:53
And the trick is, we want to do the most good for the most people, but we don't, but there's also some minority groups, other groups that we want to be there to to represent and support and, and even how a president runs. I mean, the counterpoint some would say is like, Oh, we let's make that President Go, you know, candidate go run in New Hampshire or someplace smaller, they've got to like, talk to every voter and consider the smaller states and all that. So how do you do all of that, like the most good for the most people, but people are far left would say, Well, how do we not prevent like, just what's good for the majority and forget about the underprivileged, the disadvantaged those that just don't have enough support, as well? How do we stand up for them to? Well, it's
Lawrence Lessig 56:35
important, but that's why you know, what political scientists called liberal democracy is so important, liberal democracy means a democracy that's constrained by minority rights, and the minority rights, make sure that the democracy can't run over the interests of the minority, wherever they happen to conflict with them. So the first amendment is like quintessential minority rights, like, you don't have to like what I'm saying, for me to have the right to say it, or at least have the right to not have the government stop me from saying that's a minority right provision. So to where property protections, minority rights, protection, so the government can't take your property, without giving you just compensation that was to make sure that the mob wouldn't get together and decide just to steal all the money from the rich people, you know, the rich people were minorities, but we protected them. Civil rights, protect people who are, you know, women are not minority, but people who are traditionally disadvantaged, they make sure that that they continue to have the opportunity equal opportunity to compete or to to participate, that's incredibly important. Those rights constrain what a democracy can do. But within those constraints, a democracy should be able to do what it wants to do with the majority support, the idea that you need a supermajority to pass ordinary legislation is just not a democracy anymore. You know, it's it's a, it's a veto cracy, where a tiny fraction gets to veto anything that the government is going to do, and means the government can do a wide range of things that it needs to do, I'm
Ben Kaplan 58:04
going to give you one more idea I've written about and I would love to get your take on it. I've written about more in the context of local government, but it could be federal to the benefits of Sunset laws, specifically laws that go away over a period of time, they sort of had their heyday, kind of like in the 70s and 80s, there was a lot of like, state government departments that would kind of be like, okay, every, you know, eight years, you got to like redo the charter to make sure it's still serving things. And I sometimes wonder, like, let's say all of the reforms, you talked about, let's say something gets through, that isn't great for the people, do we have a way to reset that? Because suddenly, it's in there, it's sort of entrenched, you can't really get it out. If we have sunset laws, which says, let's say, after eight years, you have to renew it, or it expires. Or let's say it's something experimental, something bold that Lawrence Lessig thought up, we don't know if it's going to work, we want to see, let's let's renew it after four years. And if it's going great, if we love it, it continues. And if not, it goes away. What do you think about this idea of Sunset laws to give ourselves like a reset button, if things get through become law that shouldn't be and we realize that I think
Lawrence Lessig 59:13
it's a great idea for a certain category of law. So for example, one great example of this was the Patriot Act. Certain reformers were able to insert into the Patriot Act, a sunset provision, because they recognize like we're in the middle of a crazy moment after 911. And it's not like the nation was going to be careful in thinking about how it was going to continue to protect civil rights in the face of this threat of so called terrorism. So they said, Okay, we'll pass the Patriot Act, but it will expire at a certain point unless Congress passes it again, that's a perfect example of where that's necessary and where that's helpful. You want to avoid it, though, in contexts where it could unintentionally increase the cost of doing something so like, if you're building a highway, and it's gonna take 10 years to do Do you commit five years of funding and you say, at the end of five years, we're going to have to decide whether to do the next five years. That means that everybody investing in that highway will have to incorporate the contingency that maybe it won't happen in five years, which means they're going to charge more for what they're doing, because it might be that they lose in five years. So you want to make sure you don't deploy it in contexts where the consequences just to raise the cost of doing business as a government. You know, the government's purpose is to be permanent and long term. But in context, where you're thinking of new ideas, or great innovations or responses to great threats, it's a really important thing that you stop and have to be rethinking after some period of time, in an
Ben Kaplan 1:00:39
interesting incentive, because when I talk to politicians who've been around for a while, you know, usually when they celebrate their accomplishments, they're like, I've passed 22 laws I'd like to write it's like the number of laws you created as a sign of your influence, or you're doing your job as as as an elected official. But then you really asked him, like, how many of those laws are like needed anymore? How many of them obviously, like, you know, honestly, maybe half of them don't really serve a purpose anymore. And so that's why I wonder, is there some way to do that intelligently. And the way that sunset laws come up right now in the federal government is it's usually used in tax law and tax cuts, because there's a little quirk where if it's not permanent, you can include it in the budget reconciliation processes. People use it for that. So that's why I wonder, you know, and it's just a tricky thing. There's so many pieces this, there's so many parts, how do you do and it's not just like, one thing is the panacea, or the magic bullet? To do what you're proposing? You got to do multiple things at the same time? And how do we get there, you know, just doing one thing probably doesn't solve everything.
Lawrence Lessig 1:01:44
It doesn't. But I think there's a sequence, you know, I say, you've got to solve the corruption problem first, not because it's the most important problem, it's just the first problem that you need to solve to be able to solve all the other problems you want to address. So if you don't get the responsive government to what the people want, instead, have a government responsive to what the funders want. They can block climate change legislation, health care, legislation, tax reform, that actually benefits middle class and stop the, you know, the Empire American spending all of these terrible things. They can stop because of the way we fund campaigns. So I say, let's solve the corruption problem first. And then we'll bring in a whole army of people who are going to try to solve the next 100 other problems that we now can solve, because we have a government that's free to actually do the right thing, as opposed to the thing that benefits the funders. So you're right. There's a million things we have to do. But there is something we need to do first. And that's the end this corrupted government. And
Ben Kaplan 1:02:45
if you you know, you're a legal scholar, you're a thought leader on reforming government. If you were made president for a day, you didn't have to get things for Congress. Now. You can't do everything your entire agenda in that day. But you had one thing to pick, maybe the tackling said corruption comes first. So you could tackle that. What would be the single most impactful thing that you would choose? If you were given the power just to wave your wand for one day, you can get one reasonable thing through what would that be?
Lawrence Lessig 1:03:12
It would change the way we fund campaigns. So you create a Congress that was free to to lead not sycophants to funders of their campaigns, that one change would unleash the ability of Congress to make 100 Other changes. So I think that's the first thing I would do. Well,
Ben Kaplan 1:03:35
there you have it, from Professor Lawrence Lessig. He is a scholar on intellectual property. He is a thought leader on reforming government. Thank you so much for joining us on Unpolitics. Thanks,
Lawrence Lessig 1:03:47
Ben. Thanks for having me.
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