When Americans are not equally represented in our government, our democracy is endangered. That’s what’s happening now, argues law professor Lawrence Lessig in his latest book, They Don’t Represent Us: Reclaiming Our Democracy. “They,” Lessig tells me, refers both to our elected representatives, as well as the “voice” that they are representing.
Lessig has been an outspoken critic of the Electoral College, campaign financing, and gerrymandering, and is a frequent commentator on these issues. In 2016, he took matters into his own hands, running for president on a platform of campaign finance reform. In his book, Lessig proposes some solutions to these problems, including penalties on states that suppress voters, incentives to end gerrymandering, and “civic juries,” which would be a system to have representative bodies make decisions on behalf of constituents.
I spoke to Lessig, a professor at Harvard Law School, about the role of education in democracy and about why campaign funding is a critical obstacle to democracy, among other subjects. Here is our conversation, edited for length and clarity.
Hope Reese: American government has not always been representative––for instance, there were centuries where women and African Americans couldn’t vote. Was there ever a time of total “representation?” And what is different about our current moment?
Lawrence Lessig: Obviously the relevant body of citizens the system was worried about representing equally has changed dramatically over time. Originally, it’s white male property owners and then it’s white males and then it’s white males and black males and then it was women. And then finally with the Civil Rights Act and the Voting Rights Act, it was actually all people, regardless of race.
I don’t think there was any “golden age.” At any time we could have written a book about how institutions have produced unrepresentativeness. I do have a sense that the consequence of the unrepresentativeness is much greater today. Because the most important of these failures is the way campaigns are funded, which has produced a Congress that is incapable of actually achieving anything. Whereas in the past, it was a gross injustice that certain segments of our society weren’t represented, we had a functioning government. The failure of our government to function is the existential problem we face right now.
Americans have a low voter turnout––partly due to political apathy, or the idea that our vote doesn’t matter. Is this feeling grounded in reality about the lack of representation?
I think it’s absolutely fair to feel that the system is not representing the average American. When you think about money in politics, the people who really matter are the tiny fraction of big funders. You think about gerrymandering, the people who matter are the extremes and the safe seats. In the Electoral College, people who matter are swing state, majority voters. If you think about voter suppression, the people who matter are the party in power. So if you do a Venn diagram of all those inequalities, I’m sure you’re going to find a very small number of people who are not affected by any of those, and you’ll find the vast majority of Americans affected by at least some.
If you do that Venn diagram, who are the people who benefit from this unrepresentativeness? How does it all add up?
I have an intuition. I didn’t try to make the final sums, but if you think about the consequence of the inequality in the Senate and the consequence of the inequality in funding, those two things together pretty clearly benefit Republicans. When you think about voter suppression, the most dramatic examples that we see are examples that benefit Republicans. But the gerrymandering example is not benefiting either Republicans or Democrats.
The problem is the way the system amplifies the power of the extremists. And the Electoral College, to the extent that it’s benefiting swings, is not representing America generally. So you might step back and say Republicans should be happier with this system overall than Democrats are. But grassroots Republicans are as frustrated and disillusioned with this and as grassroots democrats. So, Mitch McConnell might like the system. But I don’t think that actually is representative of most voters––even most Republican voters.
If you compare problems that contribute to a lack of representation, what is the order of priorities to address?
The most egregious unrepresentativeness inside the system is the way campaigns are funded. By far, that has the most significance on distorting or disabling policymaking. It’s the problem that needs to be fixed first. It’s an order of magnitude worse than any of the others. And then, the voting suppression and gerrymandering are the next wrong. Problems that systematically disable people from participating in an equally effective way. And then the Electoral College, which creates this distorting effect.
You’ve said that the financing of campaigns has a negative impact not on voters, but by distorting the way politicians run campaigns.
It’s distorting because the project of private funding of political campaigns forces candidates to spend an enormous amount of time raising money. Academic research estimates anywhere between 30 and 70% of candidates’ time is spent raising money. That process of raising money for half or more of your time is a kind of discipline. And it’s driven by the kind of people you’re raising money from. So if you’re raising money from a tiny fraction of the 1% ––wealthy, highly motivated, interested people––that has an effect on how you see the problems that America faces, and which problems you want to take up first.
So that dynamic is a corrupting dynamic to the extent that it drives members to be focused on problems that are not necessarily problems that America, in general, would care about.
What’s an example of a problem like this––that most of America doesn’t care about?
Here’s one. There’s a huge amount of time Congress spends debating whether it’s going to change the fee that banks can charge when people use a debit card. It was [at one time] the number one issue that Congress was debating. So banks are eager that the fees be high and retailers are eager that the fees be low. And Congress spends all the time debating it because Congress knows that the more it throws that question into doubt, the more eager each side will be to win. And so the more eager they are to spend money to fund campaigns.
There’s not a single American who, when they think about the problems Congress must solve, thinks about the bank fee. But it’s because Congress’s agenda is being driven not just by what’s most important to America, but what’s most lucrative to them.
How could we start reforming campaign funding?
We could change the way campaigns are funded, or at least the business model of how campaigns are funded, by adopting some version of public funding for national campaigns. The one that would be most dramatic would give every voter a democracy voucher or speech credits, which would give resources to voters, which voters would then give to politicians––which means the politicians would be raising money from a wide range of people rather than just the 1 percent. That idea could be implemented almost immediately, and over two or three cycles it would dramatically change the way Congress raises money and reduce the dependency on big funders.
The second thing Congress can do quite easily is, using its power under the Constitution, it can ban partisan gerrymandering in the states. That would take a simple statute and it would have an enormous effect on gerrymandering. It would be a little bit harder, but I also think it’s possible under that same Constitutional authority to basically end vote suppression, by focusing on the way in which the party in power makes it harder for the party out of power to vote. A lot of times that looks like racism, and I’m sure it’s motivated in part by racism, but a simpler way to see it is that Republicans are making it harder for Democrats to vote or Democrats are making it harder for Republicans to vote. So you could create incentives against that, or punish the states that engage in that.
The hardest problem to change, constitutionally, is the electoral college. I think that there’s that interpretation of the power of the states to allocate their electors proportionally at a fractional level. I think that’s constitutionally possible. But many people think you’re going to need an amendment to achieve that. I also think that the Senate could have lots of reforms without a constitutional amendment, but it’s going to be constitutionally very difficult to fix the structural problems with the Senate. The Constitution seems to put in the Senate outside of the range of legitimate amendments. My view is that these are details. If we start with gerrymandering, the funding and the vote suppression, we would do an enormous amount to fix the system.
What is the role of education in a democracy? Must the electorate be informed? What happens when we are operating with a different view of reality?
Obviously it’s incredibly important that people understand their democracy. They understand the facts about what’s going on in the world and they begin to use their values in light of the facts to press for one set of policies over another. So we need some level of education. But we have moved from a world where much of a public education about matters of public import was provided by broadcasting and into a world where we can’t rely on that anymore. People are going to be less reliably aware of important issues––at least in a way which is grounded on a common set of understandings or a common set of facts. So it’s going to be harder for us as a people to resolve certain questions when those questions require common judgment.
For example: the question of impeaching the president. If the Congress goes through with the impeachment, and the Senate goes through with trying the President, there will be a very significant proportion of Americans who cannot believe the results, and a significant proportion of Americans who take the results as completely obvious. And that’s true regardless of what the result is. And that’s because we built this world where people live in these separate tribal bubbles and they don’t have an understanding of facts held in common. That’s a product of the media environment.
We’re not going to solve that, in the sense that we’re going to get to a place where we all know the same stuff. We need to think about solving it without trying to get everybody to the right place. We need alternatives to everyone being in the right place. That’s why I talked about things like the civic juries that can help people decide issues. That would enable reflective and informed judgments of the people, as opposed to unreflective judgments of the people. Regularizing that dynamic would be a critical part of what we need to do.
Will the result of the Impeachment hearings also illustrate something about whether our democracy is representative?
The reality of today is that any impeachment is going to be conducted in an environment where politicians can see the people and the people can see the politicians––but the people don’t see a common set of facts that the politicians are supposed to be viewed against. That’s because a significant chunk of the people are going to view the facts through the lens of MSNBC and another are going to view the facts through Fox News, and those two realities are going to conflict. They don’t agree; they don’t see the world in the same way. So that conflict is really debilitating, because it’s going to lead to one side believing something deeply unjust has occurred. That kind of recognition or belief is really invidious, poisonous to democracy. It’s something we should recognize as new. When we’ve had impeachments before, either the public was invisible, like with Andrew Johnson, or the public came to a similar judgment, or was driven to a similar judgment, like in the context of Nixon. So this change is very significant.
After Trump was elected, many people began using the hashtag #NotMyPresident. Is this a new thing––not just being unhappy with, but not accepting the people representing us?
I certainly think that there’s a growing frustration with the system. Democrats have been pretty good at accepting anomalous results that seem to benefit Republicans. The election of George Bush and the election of Donald Trump were events which were contrary to the public’s sense that the person who wins is the person who has gotten more votes.
Because of the Electoral College, that’s not what’s happening. You could have imagined that producing very significant frustration, which could have manifested itself in something more than peaceful acquiescence. But peaceful acquiescence is what we saw. And more states are gerrymandered against Democrats than against Republicans.
We should not take it for granted that peaceful acquiescence is going to be the norm forever. We should be really concerned that we fix the underlying causes of this, so we don’t produce a weakening of the commitment of the public to our democracy.