Professor Lawrence Lessig (LL)— [00:00:30:15] So, what I mean by “corruption” is not Rod Blagojevich or Randy Duke Cunningham or William Jefferson. I’m not talking about anybody breaking the law, engaging in quid pro quo bribery, selling access, selling government favors. I’m talking about a much more systematic, legal form of corruption that gets played out in a very elaborate dance by lobbyists and the clients they represent and the Members of Congress who are increasingly dependent upon these lobbyists and the money that they can facilitate to fund their campaigns.

So, that legal process, with decent, honest people, just working inside a system which they didn’t build but they have to try to master, delivers the same kind of influence to Special Interests as the old, corrupt form of bribery did—but, maybe, more effective, more powerfully, more dramatically than the old form of corruption did. Because, at least with the old form of corruption, there was shame inside the system. People were embarrassed. They wouldn’t sort of openly describe how they had bought a Member of Congress.

This new type of system, there’s no shame. There’s nothing to hide. It’s all perfectly transparent. The influence that comes from raising endless amounts of money is the way to demonstrate your power.

[00:02:40:09] If Citizens United [v. Federal Election Commission, 558 U.S. __ (2010) is any indication, aren’t we fine with an imbalance—even a destructive imbalance—of monied influence in politics?

Now, my view is, there’s another sense of corruption here, which is just as compelling and just as obvious. Indeed, to the Framers, it’s the kind of corruption they were most concerned about. And that’s not the corruption of bribery. It’s the corruption of a system that is no longer focused on the right kind of dependency because it has the wrong kind of dependency that’s been allowed to be entered into the mix.

So, the dependency upon the People was supposed to be exclusive. Instead, we have a dependency upon the Funders, which competes with the dependency upon the People. And that, in the plainly obvious sense, corrupts the system.

So, in my view, Congress ought to have the power to address that corruption even more importantly than it has the power to address the corruption of bribery because that corruption, the corruption of the existing system, is order of magnitude more significant in breaking this Democracy than anything Rod Blagojevich or Randy Duke Cunningham ever did inside our system.

So, I think that it’s just a mistaken conception of corruption that leads them to this view that independent expenditures are completely fine. And I think actually eventually they’re going to recognize the mistake in that view. And when they do, they’re going to reverse it and give at least Congress some power to limit independent expenditures where those expenditures raise this perception of coordinated corruption.

[00:05:16:28] How did the Founders deal with the corruption you describe?

[00:05:21:28] Well, in designing the Constitution, as Zephyr Teachout in this brilliant piece she wrote, called The Anti-corruption Principle, the Framers created all sorts of elaborate devices to channel the wrong kind of influences away from a decision-maker.

So, at the core of this architecture, is a conception of what independence for a decision-maker meant. So, independence for a judge, doesn’t mean the judge is free to do whatever the hell he wants. Independent judiciary means a judiciary that is dependent upon the law. And, for Congress, an independent Congress is not a Congress that gets to do whatever the hell it wants. It’s a Congress that is dependent upon the People. And in both of those institutions, what you do is you try to eliminate influences that compete with this proper dependence.

These are all limits the Framers built in so that the Congressperson would be focused where the Congressperson was supposed to be focused—on the interests of the People—and limit the extent to which these distracting, distorting dependencies might undermine their ability to do what an independent Congress should do.

[00:07:42:07] Yeah. Well, think about it like this.

Imagine the Chinese government got it into its head that it wanted to influence the United States Congress. And so, it went out there and started giving presents to Members of Congress. You know: yachts or airplanes or big piles of money.

So, the Framers were interested in creating the right kind of independence, protecting against the wrong sort of dependence. They put something in the Constitution to address that.

Now. Switch channels to corporations.

Corporations are not citizens, like the Chinese. They might be persons. But, they’re not citizens under the law. And bribery statutes, of course, forbid them from giving gifts in this sense to Members of Congress. But, if corporations start spending endless amounts of money to advance the interests of certain Members of Congress by advertising in their favor in an election, it creates exactly the same kind of dependency that the Anti-gifts Clause is trying to address. And it creates exactly the same kind of concern. Maybe their focus is not on what the People want. Their focus is instead on what will get the corporation to spend the right money to support speech or to attack the opponent.

The Framers never thought about that. They never thought about that because they never had a conception of campaigns where you would spend millions of dollars to become a Congressman or a Senator or President of the United States. It just wasn’t a problem for them. Just like nuclear waste was not a problem for them.

But, now it is a problem. And the question is, should we have the freedom within our Constitutional system to create an equivalent kind of protection against that problem to the kind of protection they erected against the particular problem they were addressing?

So, I think that, you know, Congress should be free to assure the independence of Members of Congress by regulating elections such that Members of Congress are not shape-shifting to get the right kind of Independent Expenditures the way I think, right now, they’re shape-shifting to get the right kind of contributions. Both of those kinds of shape-shifting are destructive. And, I think that’s the dynamic we should be focused on.

[00:10:25:27] Well, I think the Framers of our Constitution were naive in expecting that Congress would be concerned about the institution of Congress first. And they were naive because they didn’t expect parties to become so important. In fact, [George] Washington thought we should be a one-party state. He thought political parties were just a manifestation of faction and we shouldn’t allow this to emerge within our system.

But, very quickly, with the decline of the Federalists and the rise of the Jefferson Republicans, parties became critically important. And what they did was cement allegiance across institutions. So, right now, what’s important is the Democratic Party controlling the President and Congress or the Republican Party controlling the President and Congress. And the idea of Congress standing up against the President or the President taking on Congress just doesn’t happen because parties wallpaper over those institutional differences. And what that means is that it’s institutionally very difficult to figure out how you take on a failing, sick institution like Congress. It’s not clear Congress has the capacity to cure itself. And it’s not clear the President has the political will to take on that institution because, of course, if he alienates Congress, he gets nothing done because he can’t pass anything on his own.

So, we don’t actually have built into the system the Framers gave us a very good way for regulating the health of this institution of Congress. And that’s why I think it becomes critical to think about outsider influences that could bring about that kind of reform.

—End of Part Two—

For more GWorks Interviews: Lawrence Lessig, please visit

Part One: Bended Like Beckoned,

Part Three: Street Legal: Regulating Wall Street

Part Four: Solving for X

Part Five: Conclusions

EDITOR’S NOTES

Please note, on 29 March 2012 GWorks updated (1) the video file of this interview with a color-corrected version and (2) time stamps for questions and answers.

GWorks Interviews: Lawrence Lessig was filmed Tuesday 28 February 2012 in Professor Lessig’s office at Harvard Law School, Cambridge, Massachusetts. GWorks would like to thank Professor Lessig for his generous participation; Szelena Gray, Professor Lessig’s assistant, for her work to make this interview happen; and Brian McLendon, Twelve.

Photo: Book Cover: Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It. Courtesy Lawrence Lessig

Photo: Lawrence Lessig. Courtesy Lawrence Lessig.

Please note: Twelve, publisher of Republic, Lost, provided GOVERNINGWorks with a Reviewer Copy of Republic Lost.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.