As you may have heard, Harvard law professor and activist Lawrence Lessig is, maybe, running for president, identifying as a "referendum candidate" on the single issue of political reform. His yet-to-be-written Citizen Equality Act would include provisions on campaign finance, voting rights, and reform of election structures. If he won, he says, he would resign as soon as the tripartite legislation was enacted, turning the Oval Office over to his vice president as quickly as possible. The election would thus be a referendum on this one issue, which Lessig argues is the key to progress on all others.
There are lots of reasons to be dubious of Lessig's experimental political theory, many of them raised during a Reddit Ask Me Anything session that Lessig participated in on August 25, alongside Wikipedia founder Jimmy Wales: How will he actually get his legislation through Congress? What will he actually do about other issues that come up during his (brief, he hopes) presidency? And what if voters don't agree with his theory that these reforms should be "first," and not just "one issue on a list"? (That's his difference with Sen. Bernie Sanders, who supports the same reforms but doesn't give them absolute priority.) An election is a rare opportunity for citizens to express their views on education, health care, criminal justice, or immigration, and many people — correctly — won't buy the idea that nothing can be done on those issues until the political system is fixed.
But Lessig, along with Zephyr Teachout, the Fordham law professor who ran for governor of New York in 2014 and has now taken over the Mayday PAC that Lessig launched, has nonetheless made a significant, little-noticed contribution to the debate on political reform. Even if they don't succeed in raising the priority of election reform from "one on a list" to "the first" issue, the substance of their proposals will reframe the debate.
First (and this will be the subject of a longer post to come), Lessig's CEA promises a comprehensive vision of political reform, rather than billing campaign finance reform or voting rights as a silver bullet fix. It reflects an understanding of democracy as a complex system, in which certain reforms can complement one another. For example, Lessig's preferred reform to election structures, ranked-choice voting, pairs well with small-donor public financing systems, and together can make it possible for candidates who start without much money or establishment support to be heard and have a shot at winning.
Second, and more important, Lessig and Teachout have shifted the focus of campaign reform away from a constitutional amendment to reverse Citizens United, which was the most visible public message for the past three years, embraced by Hillary Clinton and by every Senate Democrat. Lessig has always had a complicated position on the constitutional amendment — he's proposed one of his own, as well as supporting a constitutional convention. He also has a subtle view on Citizens United, which he basically thinks was correctly decided (he's right), but he would reverse the later decision in SpeechNow that create Super PACs.
Here's his answer on Tuesday to why he's not pursuing an amendment:
Because (1) we need reform NOW (not 3 years from now), (2) a majority in Congress is more likely than 2/ds (to propose), or 3/4ths (to ratify), (3) because changing the way campaigns are funded is something Congress could do tomorrow, and should. An amendment may well be necessary — if the Supreme Court doesn't fix the superPAC problem it is certainly necessary — but we can't afford to wait.
CEA is perfectly constitutional. IT does not adopt the strategy resisted by the Court (limits); it is all about more speech, not less.
By "more speech," Lessig means that the campaign finance provisions of his proposal will be based on the Government by the People Act, introduced by Rep. John Sarbanes with 150 co-sponsors, as well as the American Anti-Corruption Act, which together would encourage small contributions, provide a voucher to enable every voter to be a donor, and include improvements to public disclosure and lobbying restrictions. All of these, or just the Sarbanes bill alone, would indeed be fully constitutional, reduce corruption, and increase the influence of ordinary people, without relying on limits.
In a recent interview with the American Prospect, Teachout was much blunter, and even named a name:
We're not going to let any candidates get away with saying that they're pro-reform unless they're talking about public financing. They cannot, like Hillary Clinton, talk about a constitutional amendment and not talk about the most obvious and easiest thing to do, which is switch to a public financing model... I’m really skeptical of politicians who aren’t serious about it and use the phrase "constitutional amendment" in order to raise money. I don’t take anybody seriously unless they’re also actually talking about public financing.
It's about time someone said that. The constitutional amendment has been a fundraising gimmick for Democrats and little else, since they know it will never happen. Every Senate Democrat up for reelection in 2014 used it in their fundraising emails. I wouldn't use the phrase "public financing" as much as Lessig and Teachout do — it's really about expanding the base of donors and giving small donors a voice, in a system that would still have some private financing — but the basic concept is exactly right.
The real test of these two interventions in the political process —Mayday and the Lessig "referendum" candidacy — will come soon, when Clinton fills in the details of the fourth of her promised "four fights," "revitalizing our democracy." If instead of saying yet again that she will "undo the Supreme Court's damage ... even if it takes a Constitutional amendment," she says, for example, "I support the Sarbanes bill," then I think we can say they that Lessig and Teachout have helped lead a significant change toward making real reform more likely.