Lawrence Lessig Thinks the Supreme Court Will End SuperPACs

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. People have the power to make this life free and beautiful. To make this live a wonderful adventure.

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0:00:57 Thomas: Hello, and welcome to Opening Arguments. This is episode 1105. I'm your host, Thomas Smith. That over there is real life attorney, Matt Cameron. How are you doing, Matt?

0:01:05 Matt: Thomas, I am really excited to talk to somebody whose work I have been following since I was at least 19, I think, when I read Code, one of his first books. Lawrence Lessig is just many different kinds of interesting, and he's had at least two very incredible public advocacy careers. So I'm excited to get to talk about a little of both there.

0:01:20 Thomas: What's amazing about Professor Lessig is that there, and it's every time, he's been on the show at a handful of times, and every time it's like, oh, we could talk about that. Oh, we can talk about this. Oh, it's just endless. And it's a lot of different things. And it's not as though it's a casual, you know, like, oh, he's somewhat acquainted with this. No, he has an in-depth, you with so many different issues because it's an honor to have him on. I love talking to Professor Lessig. And so, yeah, we are both very excited about this interview. Can't wait to get to it. Here's something else I'm excited about, Matt. The new year's Eve live hangout for top patrons that's top two tiers of patreon we're gonna hang out I cannot wait it'll be a good year's sort celebration but you know it's it's gonna be at 1 p .m. Pacific 4 p .м. Eastern so that you know you can still do your wild crazy new year plans later but hang out with us for a little bit during the day it's going to be so much fun it's going to be Lydia and it's going to be Heather Varanini. Field some questions. We'll do a little Q&A. Can't wait. Long overdue. Gonna be so much fun. So, hey, check it

0:01:30 Matt: Yeah, for sure. Yeah,

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0:02:26 Matt: Gonna be great.

0:02:26 Thomas: All right, well, Matt, we're heading over to Professor Lessig. Is there anything we should know ahead of time?

0:02:31 Matt: The first thing I want to ask him about actually. And this is really important to me. And I think a lot of people have been following these issues. Lawrence Lessig was a mentor for Aaron Swartz, and he met him when he was very, very young. And Aaron Swarts was a very well -known digital privacy and rights activist. He was one of the early co -founders of Reddit. And, you know, I'm just interested to hear, because unfortunately, the anniversary of his passing is coming up in a couple of days here. And it's been in my mind. He was actually prosecuted by the federal government in a way that pushed him too far. And Lawrence Leslie has had a lot to say about that and about Aaron's life and legacy. So that's the first thing I'd like to know.

0:03:04 Thomas: I didn't remember about the Reddit thing, though. That's fascinating. Wow. All right. Well, good context there. We're going to take our usual break, which you can avoid at patreon.com/law. And we're on with Professor Lawrence Lessig.

0:03:19 Thomas: Professor Lessig, thanks so much for coming back on the show.

0:03:22 Lessig: Good to be back. Thanks for having me.

0:03:25 Matt: Pleasure to talk to you. I've been following your work for decades, and wanted to start by talking maybe about something that is a little less expected for listeners. 12 years ago next month, we marked the death of Aaron Schwartz, and he was a mentee of yours and someone that meant a lot to you, and wanted to give you a chance to reflect on his life and legacy and talk about how he inspired you to work on the issues we're going to talk about today.

0:03:45 Lessig: I wouldn't say he was a mentee. I would say I was a mentor. I was the mentee of his. He had this way of making you feel like you had to be the best you possibly could be. It was literally almost 18 years to the day when came to visit me in Berlin. Lynn, and I working on copyright issues. I was about to give my first TED Talk about copyright and publish the last book I would write about copyright. And he [said] to me, why do you think you're going to make any progress on the issues that you're about, like copyright internet issues, so long as we have this deeply corrupted [government]? And I said, Aaron, it's just not my field. And he said, you mean as an academic? I said, yeah, as an academic, I do copyright issues on the internet. And he said, well, what about as a citizen? And he kind of trapped me because I had tenure. I could work on whatever I wanted to work on. It didn't matter. And there was no way to make progress on anything important until we address the fundamental corruption of our government. So literally that night, I said to him, OK, I up the work I'm doing if you join me and take up this work against corruption. And he said sure. So that summer, I made the announcement at the International Creative Commons event. And that fall, I started with him this group called Change Congress. Chris. And that was the beginning. I'm still doing it. I mean, he checked out, but I'm, I'm doing it, um,

0:05:10 Thomas: What a story.

0:05:11 Matt: Yeah, that's incredible. You really have had two different public careers in the law, both very interesting and I think both very impactful. You know, as you said, this is such an urgent issue right now. A lot to talk about here. So I guess, just as of now, December 2024, what do you see as the most pressing issues in campaign finance reform and the corruption that you're taking on?

0:05:29 Lessig: I think the most important issue is to get people to focus on a thing they already believed like 18 years ago. I don't think most people believed it or thought about it, but practically everybody today gets that it's a deeply corrupted, uh, and dysfunctional government that we've got. They see that and recognize there's something to be done about that, I think there's a chance to build a [movement] of, I don't want to say cross-partisan because I don't feel like it's partisan. I feel like the real thing about populism is not left, right, it's inside, outside. So it's a movement of outsiders who would demand that finally we do something to address this deeply corrupted system of government. And I feel like in a certain way, the stars are aligning on that argument because there could be no better next four years to make this argument clear than the next four years we're going to have, which will be the most kleptocratic presidential administration we've had since the last Trump administration. And if there will be endless supply of examples to say, see, this is exactly what money corrupts. This is exactly how it has its effect. And if we don't begin to do something about it, like, you know, I thought we were supposed to begin doing something about it 20 years ago, but if we don't do something about it, then truly everything is lost. So I feel like we're leading up to a moment where this finally can have an effect. And I'm actually, for the first time, kind of optimistic about the fight.

0:06:58 Matt: Good to hear.

0:06:58 Thomas: Boy. Sorry to be a pessimist, but I just feel like there was so much of that already in the first, you know, administration. And it's hard to break through. It feels difficult. To me, it feels like this battle between the culture wars that the right is able to just keep inflamed all the time. And in my opinion, it's kind of it's almost a bit of a top down thing to keep people distracted from some of this corruption. And it feels like— but also, I mean, there was January 6th. There was a lot of reason why at the end of the Trump administration, you know, COVID focus was perhaps elsewhere. Do you think that, those, you know, some of those things can be overcome? I just feel like there's so much focus on the culture war issues all the time that even these stark examples of corruption are really hard to break through.

0:07:40 Lessig: Exactly right. And I think the strategy has got to be to get people to see how they're being played. Like, it's all a distraction game. It's all about pointing your attention away from the thing that's right in front of you. I mean, think about the whole fight about Hunter Biden, right? You know, how many years do we have to hear this story about how Hunter Biden got this special board membership because his father was vice president? And out of that, he was getting, what, a million dollars a month or some ridiculous amount of money. And when I heard that story, I don't know if it's true or not. And I thought if it's true, it's just really disgusting. But at the time, we were focusing all this energy on Hunter Biden. Ivanka and Jared were literally making, from their own disclosures, at least $160 million up to $770 million, while working in the White House. So they have this amazing ability to distract us from the thing that is right in front of us. And I agree with you that the key is how do we get people to focus back on the things that matter to show them how we could actually get this problem solved. And so I'm not saying it's easy. I just feel like, you know, if we can't do it now, we can't do it, period.

0:08:55 Thomas: Does feel like Elon Musk is like, all right, Professor Lessig, I'll go show everybody exactly.

0:09:00 Lessig: That's right. He's my best friend.

0:09:02 Thomas: Apparently.

0:09:03 Lessig: He is my best friend.

0:09:06 Matt: What do you think about the rise? I mean, obviously, you've been watching this for such a long time of Silicon Valley and politics, and you were the special master on the Microsoft case back in 2001. And I think you maybe saw some of this coming. What did we learn from that case, especially about what we need to do to regulate Silicon Valley, and how Silicon Valley is going to end up running us.

0:09:24 Lessig: I think that way back in the day, they were much more subtle about things. I mean, Microsoft was pretty aggressive in its belief that nobody could touch it. That was just ignorance. And when the Trump— the Clinton administration prosecuted them, I think they were as surprised as anybody. But at least in those days, I think in Silicon Valley, there was a lot of idealism about how we could make government work for everybody. And they, like Bill Gates in the beginning, had no desire to be lobbying. They had no desire to try to play the Washington game. They instead had a desire to make the system and the government work better. I remember in those days, I [met with] Peter Thiel a bunch of times talking about this corruption and government stuff. He actually helped fund early work that we did in trying to address the corruption stuff. Mark Andreessen, same thing. Marc Andreessen was, I think, the first big funder I had of the thing Aaron and I started. Back then, I think they were still focused on the idea that we could make a government that actually worked. Now, I think those guys have spent so many years as billionaires that they kind of lost touch with the idea of government working in the way they would have said it should work 20 years ago. And now it's

0:10:39 Lessig: Really about basically breaking government to convince people there's no reason for government, and so therefore their libertarian dreams should be embraced by all, and that's— so I think that they've, you know, whereas 20 years ago, I would have said, if there's hope, it's going to come out of Silicon Valley. The greatest danger now is coming out of Silicon Valley and, and wealth that that has enabled, I think, is, is the most poisonous thing we've got in American politics right now. Yeah.

0:11:07 Matt: I loved all of that too, with the rise of Elon Musk, as you said, trying to take the government apart at this point, I also have this sort of dark horse unexpected thing I wanted to ask you about with Barre Seid and the Marble Freedom Trust, basically funding the Federalist Society, Leonard Leo, with $1.6 billion. Don't know if that was a factor last time we talked to you. Do you have any thoughts about that?

0:11:26 Lessig: It's interesting. We have [been] working in Maine to pass this initiative in Maine that challenges super PACs. People like Sanders going around saying super PACs are the greatest threat to American democracy. I would say, yes, you're right. And then he says, so therefore we have to overturn Citizens United. I would say, no, he's wrong. I mean, not because I wouldn't love to overturn Citizens United. It's just, there's zero chance Citizens United is going to be overturned. But what that argument misses is that to address super PACs, you don't actually have to address Citizens United, the Supreme Court didn't create super PACs. Super PACs were created by a lower federal court case called SpeechNow. And that case, that decision, that principle has never been reviewed by the Supreme Court. So we've been working for the last year to tee up an initiative in Maine that basically flat out challenges super PACs. And it passed in November. It passed with more than 70 percent of the vote, the largest democracy victory in the 2024 election. And now it's being challenged and it's been challenged by the [Institute for Free Speech]. And that institute is funded by Leonard Leo's key funding entity. So the [fight] is on with Leonard Leo, who's like the backer of the biggest super PAC structure on the conservative side that there is against, you know, these Maine citizens who've been outraged, disgusted by the role of big money in politics. The great thing about Maine is that it sits in the First Circuit Court of Appeals, the federal circuit. [That] circuit has never addressed the question of super PACs. And it's got a great small number of judges and judges are super focused and smart about issues like this. So I'm extremely optimistic we win in the First Circuit and when we get to the Supreme Court. In the Supreme Court, we'll tee up a question that the court's never addressed and gives the conservatives a chance to apply their principles in a way that produces an answer that will surprise most liberals. So I'm betting we win seven to two in the Supreme Court but,

0:13:29 Lessig: When we do, the point is it will be the first major victory on money in politics in 25 years. So I [think] there'll be a shot then to begin to leverage that into a bigger movement to address the problems beyond super PACs. Because of course, that's not the end of the fight. It's just the beginning, but it would be a hugely important victory to have at the beginning.

0:13:48 Thomas: You got to break this down. How, how can you be that optimistic about this court? What, what, what would the, yeah, please tell me, tell me. I would love to have some of that.

0:13:56 Lessig: United said that the only basis for limiting political speech is the risk of quid pro quo corruption, this-for-that corruption. If you've got speech that's independent from a candidate, then there's no risk of quid pro quo corruption, or put the other way around. If there's a quid pro quo, it's not independent. So on the logic of the court's analysis of when you can regulate political speech, there's no basis for regulating independent spending. Okay. You know, we can disagree with that if you want, but just let's accept that. That's the principle. Contributions though, raise a different question, right? So there's a case in 2015 where my favorite United States Senator Robert Menendez from New Jersey was indicted. [The] indictment said he had engaged in quid pro quo bribery with a Florida businessman in exchange for government favors. The Florida businessman was going to contribute to Robert Menendez's super PAC. So there was the thing that was not possible. Was the contribution to a super PAC in exchange for a quid pro quo corrupt act. Supreme Court said in Citizens United, the speech is independent, so therefore there's no risk of quid pro quo corruption, so therefore, there's no basis for regulating it, so, therefore, it could be completely unlimited. Months after the Supreme Court said that, in the D .C. Circuit, SpeechNow the question of contributions. And what the D C. Circuit said was, well, if the spending independently creates no risk quid -pro -quo corruption, then the contribution to make the spending possible also logically creates no risk of quid pro quo corruption. Again, on the surface, it kind of sounds right unless you think about it, unless you talk to Robert Menendez. But then once you see Robert Menendez, you're like, wait a minute, the thing you said couldn't happen, DC Circuit, quid pro quo corruption with a contribution to a super PAC, is exactly what Robert Menendez was charged with. Indeed, the lawyers for Menendez had the chutzpah to file a motion to dismiss the indictment, saying the thing you've indicted us for, the DC Circuit says, is not possible. And of course, the court kind of laughed at the idea, but it brought out the fundamental logical mistake in the case that gave us super PACs. Now, this issue just has never gotten to the Supreme Court. And so the point is, in the Supreme Court, you say to Chief Justice Roberts, look, we want you to apply your test, not our, you know, liberal test for how you should be judging when political money can be suppressed. Not our test, your test. Apply your test to a set of facts you've never addressed: of contributions to super PACs. And if you apply your test to a set of facts you've never addressed, you've got, you know, apply it honestly, you come to the answer that, in fact, you can regulate contributions to independent political action committees, even if you can't regulate the spending of independent political action committees. So that's the boring part of the story. The cool part of the story, though, is provided by my second favorite United States Senator, Josh Hawley from Missouri. Hawley last year introduced a bill on the floor of the United States Senate to overturn Citizens United. When asked about it, he said, yeah, every originalist knows that the original meaning of the First Amendment would have said nothing about the ability of Congress to control how corporations spend their money. Okay, so Josh Hawley is making an incredibly important move. And the move is, what if you were [a] consistent originalist who applied your originalism to the question of campaign finance regulation? And what we know from historian originalists, who've looked at this, like Judd Campbell at Stanford Law School, what we [know] from them is the original understanding of the First Amendment, the original meaning of the First Amendment, would have said nothing about limiting Congress's ability to limit contributions inside of political campaigns. So this argument says to the originalists, apply your originalism consistently. Like Justice Thomas says, we ought to overturn New York Times versus Sullivan because the original meaning of the First Amendment would never have created some special immunity for defamation actions because of the Constitution. So, apply that original meaning, you don't have New York Times versus Sullivan. I don't want that result, but what I'm saying is, if that's your view about New York times versus Sullivan, you ought to apply the same principle in the context of campaign finance reform. For him. Now, I'm not optimistic Thomas will do the right thing here because he's got a hundred opinions, basically being the most extreme First Amendment absolutist when it comes to campaign finance. But there are other justices on the court, kind of Scalia wannabes. And by that, I mean, you know, I clerked for Scalia way back in the day when he was, you know, a young justice. Scalia, way back In the day, was constantly trying to demonstrate that his principles were more important than his politics. So when I clerk for him, there are any number of times where he followed his originalism, even though it was not a conservative result.

0:19:03 Lessig: Yeah. And I think those Scalia wannabes are prime targets for this argument that, okay, you're going to be an originalist. [Apply your] originalism to this question of campaign finance. If you do, you'll see that Congress can do more than even under Justice Roberts, Chief Justice Roberts' test, Congress can do. That's why I think we not only win the three liberals, we win Roberts and Kavanaugh under the standard analysis, and we win one or two of the originalists. And that gets us to six or seven, which when that happens, of course, the world will be astonished. But I just think that's what they're going to do.

0:19:40 Matt: Love the optimism.

0:19:41 Thomas: Is there an opportunity for me to bet money the other way anywhere? Is that, well, we just talked Just talked about Rahimi in and please correct me if I I maybe have the wrong impression. My impression of that case is that obviously based on their past precedents, recent precedent on that, the analysis would probably have to go the other way. But that result is so ridiculous that only Clarence Thomas could continue to say that with a straight face. Do you not worry about them just finding a way to fit it in? You know, finding another, that's the problem with originalism and these approaches is so easy to just find your own little just so story about how this will make sense. Do you Not worry about that? Possibility.

0:19:44 Lessig: Yeah, I'm sure there will be. There will be plenty.

0:20:19 Lessig: I worry about this deeply because I get totally that they could easily do something inconsistent with the principles they articulate. Indeed, they do it all the time. The question is to ask, what's their motivation here? I mean, both political and institutional. Politically, the reality is super PACs don't benefit the right relative to the left anymore, right? The last two elections, the left raised more money in super PACs than the right. Trump's race, that was not true, but in the overall, it was true. So what people see is that, you know, whereas 10 years ago people thought this would be a natural benefit to the Republicans, it turns out it's not a natural benefit to either side. It's just an arms race. So politically, there's not as strong [a] reason for super PACs as opposed to, you know, most of Leonard Leo's work is not actually [done as] money for super PACs. It's, you know, money that's not actually within the context of campaign finance regulation like this. That's politically. And then institutionally, you know, this court is reeling from the consequences of its decisions. It has the lowest popular support rate ever in the history of

0:21:27 Lessig: Measuring.

0:21:27 Thomas: Not low enough. We're going to try to get it lower. We can, we're doing what we can.

0:21:33 Lessig: Yeah, so I mean, so the point is they themselves realize they've kind of gone out on a ledge that they need to walk back a little bit, and what better way to do that than to say, look, yeah, here are our principles, we're going to apply our principles to this case, and the answer is, um, it's a result that you guys are going to be okay with, um, you know, it's like a win for them on either dimension. And it's also just them living up to the standards that they say they want to live up to. Now, I get, you know, this is an age when one should be deeply cynical and skeptical. I get that. You know, when we actually— when we, before we took this initiative to Maine, we tried to get it teed up in Massachusetts, and the Attorney General blocked it. And then that was Maura Healey when she was Attorney General, and then the new Attorney General Campbell defended blocking it. She was the first attorney general elected with super PAC money in the Commonwealth of Massachusetts, but she said that it violated free speech. So we had to go to the highest court in Massachusetts, the Supreme Judicial Court, to try to get that decision overturned so we could bring this initiative in Massachusetts. There were two lawyers arguing on the side of allowing the initiative to go forward, a guy named Ron Fein for Free Speech For People, which is a great organization that's been advancing the quid pro quo argument for many years. And I was making the originalist argument. And the standard the court was supposed to apply was supposed to be, is it conceivable that the initiative is constitutional? And if it's conceivable, then they ought to allow the initiative to go to the ballot. And if it passes, then somebody can challenge it after it passes. But you shouldn't block the people from a chance to support something that's conceivably constitutional. So I said to the court, look, is it conceivable that the conservatives on the United States Supreme Court will apply their principles consistently? Because if you think that's perceivable, then we've got to win. And one of the justices said, I think it's so encouraging that you imagine the conservatives behaving in a consistent way. And the whole court broke out in laughter.

0:23:35 Lessig: And I've got to say it was the saddest moment as a lawyer I've ever had because it's like holy shit the highest court of massachusetts feels like it's okay to openly ridicule openly ridicul the united states supreme court and and and I you know maybe they've earned it yeah it's not the first time maybe they're not the only one who's earned it maybe they have earned it

0:23:42 Thomas: It's not even conceivable. Yeah, oof.

0:23:44 Matt: First time. They don't think much of the Supreme Court. I mean, I'm a Massachusetts lawyer. I'm in Boston myself. We're probably not very far away right now. They are several hundred years older than the Supreme Court, and they love to remind everyone of that.

0:24:04 Lessig: It might

0:24:05 Thomas: The lesson I take from that, professor, and let me know if I have it wrong, is we really ought to just do what they're they're doing like there was a while I think with gerrymandering and a few other issues I can remember where I was like no we can't stoop to their level that we've got to be the adults in the room and do the thing and it really seems like I I don't think I agreed with it then certainly not now if the only way we might get this decision which you make a very convincing uh that at least the justices judges should do this seems like it's the best thing even even for them. And the reason that is, is because we have taken advantage of these loopholes as well or better than they have. Is that the lesson from this?

0:24:41 Lessig: It might be that, you know, we've neutralized the political advantage by playing the politics smartly and extremely. I'll say, when Bernie after this election said Kamala Harris's mistake was that she didn't talk about issues that mattered to working people, I think that was right. But the real lesson there was she couldn't afford to talk about issues that mattered to working people because she was constantly triangulating to make sure she didn't piss off the super PACs that had been giving her money. So yeah, we've played the game. And what we've discovered is that this gold is golden handcuffs. And it's basically locked us as a party into positions that don't actually appeal to ordinary people. And that if we could be liberated from it, like just get rid of it, maybe we could talk about issues that matter to ordinary people, which is why there's a great movement now in the Democratic Party to ban super PACs in the context of primaries. Like, let's live by the principles we believe everybody ought to be governed by. It makes no sense to do that in the general election because you don't want to unilaterally disarm against the Republicans, but begin to demonstrate to people that you're really credible about getting big money, corrupting money out of the political system. If you begin to do that credibly, I think you could win over some of these people who are so deeply skeptical about everything to do with politics.

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0:27:40 Matt: I was just going to ask you about the Scalia concurrence in Citizens United, because from what I remember, it was fairly originalist in itself. Do you think that Antonin Scalia would see things differently 15 years later, if he were still with us?

0:27:50 Lessig: Yeah, so I'll tell you a story. You can't tell anybody this story. I first was beginning to hatch this originalist argument, Supreme Court was considering the case McCutcheon, and I went to Solicitor General Don Verrilli and I said to him, you're going to lose under the traditional argument because there's no risk of quid pro quo corruption [under] this scheme. This is the statutory scheme that said if [you're] maxed out, like you can give a maximum of, let's say, $3,300 in any election cycle to one candidate. [The] law said, though, you can only give that maximum amount to a certain number of candidates. I don't remember what it was, 50 candidates or something like that. You couldn't give more than the maximum number of candidates, the maximum amount. And that was challenged. And the challenge was, look, if there's no risk of quid pro quo corruption when I give it to the first 50 people, why is there a risk of quid pro quo corruption if I give to the next 450 people, right? And the Supreme Court predictably said, yeah, and if there is no risk [of] quid pro quo corruption individually, there's no risk of a quid pro quo corruption if you aggregate. So I went to Verrilli and I said, look, you're going to lose the quid pro quo argument. What you ought to do is make an originalist argument. Because if you look at the original understanding of the word corruption, corruption, it wasn't just quid pro quo. The original understanding of corruption was much more focused on what we could describe as institutional corruption, the corruption of the institution of representative democracy, which is certainly what big money is doing. So he [invited] me to the Department of Justice. I went in and met in his office, but it was pretty clear to me he didn't take anything I was saying seriously because he was the only one in the room. If he was going to take this seriously, there would have been other lawyers like taking notes or at least talking to me about it. So he politely listened to me and then I went out and it was clear he was not going to do anything about it, so when he didn't do anything in his brief, I then worked with the Constitutional Accountability Center and we filed a brief and the brief looked at every single use of the word corruption at the framing of the Constitution, like newspapers and the federalist papers, everything we, there's a great online database that gave us access to all this. And we had people go through and code all the uses of the word corruption. When they coded the uses of the word corruption, what they found was overwhelmingly when the framers were talking about corruption, they were not talking about quid pro quo corruption. Were not talking about individual corruption. They were talking about institutional corruption. They were talking about influences that corrupt the institution of democracy. Like their paradigm example was the corruption of the British Parliament. Parliament was not corrupt because people were taking bribes. Of course, they were taking bribes, but that's not what people were talking about. What they were talking [about] was British Parliament was structured so that some of the boroughs, the districts were what was called rotten boroughs. Which meant that there was such a small number of people that basically the King was able to pick the representatives from those districts. So a system that was supposed to be independent of the King was actually controlled by the King. Therefore, it was a corrupted system because it was institutionally corrupted. That's what they were worried about when they were talking about corruption. We wrote this brief, cited all this historical evidence, submitted the brief. Supreme Court decides the case. No one talks about the argument at all. I was a little pissed off. I called Justice Breyer, who lives here in Cambridge, and I said, can we have coffee? I went over to his house. I said, you know, you wrote a brilliant dissent in that case. [He] went through all of the different theories of corruption and why under all these different theories, what Congress was trying to regulate should have been permitted to be regulated under the Constitution. And I said, why didn't you at least tweak the originalists by like pointing out that the original understanding of corruption would have permitted the regulation of this in exactly the same way. And he said to me, 76 briefs filed in that case, not a single person made that argument. I

0:31:38 Lessig: I said, actually, Justice, I think one person made that argument, and so then it [That] kind of emboldened me to go have lunch with Scalia. You know, I clerked for Scalia. We would, not a lot, but we would have lunch whenever I was in D.C., so I called him, and I said, can we have lunch, and he said sure, and so I said, okay, I'll come down on this particular day, and we had lunch. And I said to him, you know, Justice, you ruined me as a law professor. And he said, what do you mean? And I say, well, when I clerked for you, there are any number of times when there was the originalist thing to do and the conservative thing to do. And your instincts were not always the originalists. They were usually conservative. But in the end, you always did the originalistic thing. So since I've been a law professor, every time there was that conflict between the original thing to to do and the conservative thing to do. I predicted you would do the originalist thing and you've let me down every single time. And he laughed and he said, what do you mean? Give me an example. So I said, the McCutcheon case. And I went through the originalist [argument] to [him]. He like listened and he's really focused and he used to drink a lot of wine at lunch. So, I'm not sure whether it was the wine or him actually [listening], but at the end, he said to me, oh my God, I think you're right. I don't think I'm allowed to like restrict my theory to just quid pro quo. If that's in fact the originalist understanding, I'll have to rethink that. And then he died. I mean, not at lunch, but like six

0:31:42 Thomas: Boy, why do you think this conversation is happening? You killed

0:33:00 Lessig: Months later.

0:33:00 Thomas: Him with your argument. No, I'm just kidding.

0:33:04 Lessig: So, you know, what do I think Scalia would have done? I think, you know, if Scalia had done the right thing, he would have accepted that originalism gives Congress more power to address the corrupting influence of money. How could that be a surprise? The nation was founded against aristocratic ideals. It was supposed to be representative democracy. The idea that the First Amendment would have stopped them from being able to weaken aristocratic controls over government is crazy talk. There's nothing in this past that should stop us from beingable to do what we need to do right now. We just have to build the movement to get people to finally demand it and deliver on it rather than continue to live with this corruption.

0:33:45 Thomas: What a story. Jeez. We won't tell anyone, by the way. I've just absolutely mums the word on that one.

0:33:52 Matt: Just between us. I remember there's an interview on WBUR somewhere a little while ago where you said that Scalia brought you on as the token liberal. And I was very interested to hear more about what that role was like and how you felt in that position, and what was going on there.

0:34:05 Lessig: So I had two of the greatest clerkships you could have. I clerked first for Judge Posner in the Seventh Circuit, who is like one of the two geniuses I think I've met in my life. Three, maybe, I don't know. I don't want to get into counting these. But the point is, he was a perfect person to clerk for because first, he did all his his own work. He would listen to a case, he would go home, he'd come in the next day and there would be a 30-page opinion that he had written. It could have been published at that moment. And the whole job of the clerk was just to write memos attacking what he had written. And then you just give him the memo, he'll give you another version, you go back and forth, back and forth. And he genuinely loved criticism. I

0:34:44 Thomas: That sounds like the ideal of what the job should be. That sounds brilliant.

0:34:47 Lessig: That's exactly right. This was way back. So this is in the 1980s, I guess. No, no, no, early '90s. '89, '90. So it was in 1990. I was teaching in Budapest at Central European University during the summer. And he was writing his book, Sex and Reason. And I was giving him comments.

0:35:11 Lessig: And [I had comments] about one stupid chapter in the book. And the next morning I woke up, I basically wrote these comments up and faxed them to him because that's how you communicate back then. And I woke up the next day and I thought, that was a little aggressive. I wrote him this really sycophantish little letter saying, you know, Judge Posner, you know, I have enormous respect for you, blah, blah. And immediately he faxed back a response. It said, don't you ever pull your punches with me. I am surrounded by sycophants. The last thing in the world I need is for somebody not to tell me what they honestly think. That was Posner.

0:35:44 Matt: Great.

0:35:44 Lessig: Scalia loved to say that he liked criticism. He really didn't like criticism. Like when you criticized him, he would get really angry. He'd yell at you. He's like, get the hell out of my office. Out, go, go. But in the end, he was eager to at least. I don't think you could really persuade him to do anything other than follow his own principles. So there's no chance to convince him to be a liberal or to give up originalism or to gave up textualism.

0:36:13 Thomas: Yeah. He tried once and it killed him. No, I'm just kidding.

0:36:14 Lessig: No, I was trying to get him to be a better originalist. That's my point.

0:36:20 Thomas: Oh yeah. Good point. I

0:36:23 Lessig: [The thing] about the court is that it decides so many cases that are not political at all, that I could be the token liberal in the chambers, but you got to pick which cases you worked on. So I never had to work on a case that I had any conflict with. It was great fun because you just tried to work on the hardest cases and get the right answer. It was a really great year, because I was not a card-carrying member of the party, [I] didn't feel like I had to work overtime to advance the cause. It might have been the easiest job I've ever had because I would go play squash and go home at a reasonable time. I don't know. It was a great year.

0:37:03 Thomas: I bet.

0:37:04 Matt: Yeah, it just reminded me, I think, was it Arthur Schlesinger that Nixon just kind of kept around just to have a liberal in the room?

0:37:09 Lessig: Yes.

0:37:09 Matt: I thought that was just a really interesting thing about Scalia. I wouldn't have expected that, I guess, that he wanted a liberal on his chambers for that kind of perspective.

0:37:18 Lessig: He stopped hiring liberals. I asked him why. And he said, I figured everything out. I don't need anybody to argue with me anymore.

0:37:25 Thomas: Okay. Sure, dude. So do you think arguing originalism is basically the game now? Because it's been, you know, I guess I've been doing this for, gosh, coming up on close to 10 years. And at first it was— I would have been, that would have upset me, the idea that like we have to stoop to the level of, really, in my opinion, a bad way of doing jurisprudence. But, you know, be a realist, if nothing else, and it feels like that's kind of a battle we've lost. Is that how you're thinking of it? I mean, is that just something we have to do?

0:37:56 Lessig: In part, yes, and in part— there's a real reason to push originalism. In part, yes, I think it's malpractice not to read the court and understand what principles guide the court, and argue to those principles. If you're not doing that, you're not representing your client. You're not appointed to the court. Your job is not to advance ideals. Your job is to advance the interests of your clients against the background of the court. We're not yet a Nazi country, so it's not like it's deeply immoral. You know, it's just a different set of principles. You might not pick them as the best way to interpret the Constitution. I wouldn't. But, you know, that's basically where we are. So that's the part saying I think you've got to grin and bear it. But there's another part of originalism that is really underdeveloped. And that is not the originalism about the founding of the Constitution, but the originalism around the Civil War amendments.

0:38:49 Lessig: Teach a seminar called Reconstruction Originalism. The idea is, what if you were an originalist about the 13th, 14th, and 15th Amendments?

0:38:58 Thomas: Yeah.

0:38:58 Lessig: And what if you tried to apply them today according to the original meaning of those incredibly idealistic radical Republicans who passed them? Not just radical, obviously, but the Republican Party that passed them in 1865, 1868, 1870. The answer is, the Constitution, the second constitution that they ratified, those three amendments, is a much more powerful Egalitarian than the one we actually live under right now. We have compromised from the original meaning of those amendments dramatically. And the consequence of that is that we have a radically disempowered government to address some of the most important questions of equality in our society. And so there, I would say, okay, fine. If we're going to be be originalists. Let's be originalist across the full range of the constitution.

0:39:49 Lessig: Let's really, um, embody those values and, and advance them. Uh, and if we did that with, uh, civil war amendments, we would have a much better constitution.

0:39:57 Thomas: Yeah, that really seems like the way to go. Justice Brown Jackson talks about that, right?

0:40:02 Lessig: Tried to, in the argument, the affirmative action case, her opinion, it was actually Sotomayor's opinion that tried to engage on the originalism about it. But that's not actually the most interesting place to look for the original meaning. The most interesting originalist insights about those amendments is that the way they were empowering people to hold the government responsible for doing things and failing to do things, which the government was supposed to do, and the full range of what they were trying to establish and making it real would make a much better constitution than we have right now.

0:40:36 Matt: Speaking, this might be a little sidebar, but we're about to hear, I Think, a lot of originalist arguments about why the 14th Amendment doesn't mean what it says about all persons born in the United States being citizens. Do you have any thoughts on that? And it's a little inside what we're talking about today.

0:40:49 Lessig: I actually think that this issue is going to be settled, liquidated by the practice literally from the very beginning. I think that argument is not going to go anywhere.

0:40:59 Thomas: What do you mean by that?

0:41:00 Lessig: We've treated it in in which it sounds. And we practiced as if it means what it seems to say. Whatever, you you're going to muster against that is going to have a very difficult bar to get over because, you know, when you've got a practice that is unbroken for 150 years, plausibly based on the text of the Constitution, you're gonna have a very hard time reversing that. So I think this is a big stunt. Surprise, surprise. Donald Trump is engaging in a political stunt. I don't think it has much chance to change much about the Constitution.

0:41:33 Matt: For sure. I agree. Actually, speaking of changing the Constitution, since you mentioned it, were on the show about five years ago talking about having a new constitutional convention. Mind changed about that at all? You're still in the same place on that.

0:41:47 Lessig: I mean, the reality is the right is very close to having the number of states necessary to call an Article 5 convention. There's a lawsuit.

0:41:55 Matt: It seems scary to me.

0:41:56 Lessig: Yeah, there's been filed or it's being filed it was just written about um is basically trying to get the court to force congress to account for the actual um that have been submitted um know I think at this point we've got to accept there is going to be very likely going to be and Mike Johnson explicitly supports it, an Article 5 convention. The question is what are we going to do about it now

0:42:16 Thomas: What exactly is an Article convention?

0:42:19 Lessig: So the constitution in Article 5 says there are two ways that amendments can be proposed. One way is that congress proposes the amendments if two-thirds of congress votes for it, and the second way is if states call for congress to convene a convention, which then itself proposes amendments. So two-thirds of the states would have to call for Congress to convene a convention, and then the convention would be convened, the delegates would get together, and the delegates could then propose or not amendments that would be sent out to the states to be ratified. And regardless of which way it goes, whether it's from Congress or from the convention, Article 5 says there's no way to ratify that amendment unless three-fourths of the states vote to ratify it. So it's a, you know, it's pretty high hurdle to get an amendment through the Constitution process. Ways to do it are either Congress or a convention. Now, there's never been a convention — came close with the Amendment which made it so the Senate was directly elected. And that strategy — or that history — actually shows the real strategy behind Article V convention calls. And that is, you know, once they get close to having enough, it kind of terrifies Congress into doing something to make sure it doesn't have to call a convention. Convention. So, you know, you and many of them in the Article 5 convention movement who have been pushing for a Citizens United convention or a convention to address the problem of corrupting influence of money in politics, if you take the consolation prize of Congress actually proposing an amendment before we actually get a convention, that would be fine. But the point

0:43:48 Lessig: Is, you need to pressure them to do it. Right now, Congress, you know, is just so broken, it will never do anything serious through a regular amendment proposal process. And so therefore, if you think we need amendments to the Constitution — and I think we do. And if you think we need it, then this is, I think, the only way we're going to get it. Astonishing to me is the effort to make sure that if there's a constitutional Article V convention, it cannot address any issue that we care about. So a decade ago, Cenk Uygur's Wolf PAC began this incredible campaign to get state legislatures to pass resolutions calling for an Article V convention to address Citizens United. They were on a real run. I think we got up to six or seven states to call for the Article V Convention. Then Common Cause — which is astonishing, Common Cause was born to fight money in politics. Common Cause discovered that if they sent out emails saying the right is trying to steal our constitution by having a new, quote, constitutional convention, they would raise tons of money from it. So they started raising tons of money to fight Article V convention, and they have succeeded in getting almost every state that passed a resolution calling for an Article 5 convention to address money in politics to rescind their call. So now we basically have almost no states calling for an Article 5 convention to address money in politics, whereas we have almost enough states to call one for a balanced budget. But here's the thing people I think are missing about it. So when you ask people on the left, like, what are you afraid of? They say, well, I'm afraid that it's going to run away, that it's going to propose an amendment that's really crazy and then change the rules for how an amendment gets ratified. And so it's just going to do something really crazy. And they'll say, there's no way to constrain what an Article V convention does. Now, until I lost a case in the Supreme Court about three years ago, I would have agreed with them that there was no way legally to control what an Article V Convention does. But three years ago, or four years ago now, I took a case to the Supreme Court presidential electors

0:45:49 Lessig: Who wanted to exercise their discretion to vote for the candidate they wanted to vote for. The original understanding of the Constitution, original meaning, it seemed pretty clear they had that freedom. My view was, I don't care which way the answer comes out. I just think it should be decided before it could actually affect an election. So we wanted to get it resolved one way or the other. Nine to zero, the Supreme Court said, state legislatures can direct how presidential electors cast their vote. OK, well, if state legislators, by law, can direct how presidential electors cast their vote, they can certainly, by law, direct how delegates to an Article 5 convention cast their vote. So there is a way, legally, to constrain how people vote in an Article V convention. Okay. Well, I think that's a huge opportunity for the pro -democracy movement. Because imagine you had — like we're talking to people in Maine about trying to set this up right now. Imagine you had a state that began to run my favorite, like, innovation out there right now — assemblies, or let's call them citizen juries. Let's say 200 randomly selected Mainers, random representative Mainers who are brought together and you give them information about possible constitutional amendments and you have them deliberate on them and talk about them and over a period of time understand them and then at the end kind of give their view about what they think about them. My view is ordinary Americans are the best people, if it's representative, random, and informed, to think about constitutional issues, by far. Better than courts, better than legislatures, better than politicians. They are the best people to think about constitutional issues. I think if you had the citizen jury thinking about these amendments, they would come up with some pretty sensible judgments about these amendments. And then you could imagine the state legislature saying no delegate to an Article V convention from the state of Maine may vote for any amendment that doesn't have the support of, let's say, 60% of the Maine citizen jury. That single act, you have now bound the Article V Convention to the democratic views of the people in that state. You could bind it to democratic accountability, then the Article V Convention becomes maybe the best chance for getting amendments on the table that the public could actually support because we all see that Congress is not going to be proposing amendments anytime soon. Now, the obvious objection with that theory is, okay, Maine's just one state. How

0:48:22 Lessig: Are you going to get enough states to actually matter? Well, imagine Maine and 12 other states passed resolutions in their legislature that said, we hereby preemptively reject any amendment that comes from an Article V convention that is not itself democratically accountable, meaning the delegates have to be democratically accountable in some way. So citizen jury would be one way to make them accountable. Maybe referendum would be accountable. But the point is, these 13 states would essentially be vetoing the work of an Article V convention unless the Article V convention was democratically accountable. Now you've changed all the incentives for the convention movement because you basically said to the movement, you guys are gonna go through all this work to produce a proposed amendment, it's gonna be stillborn. On day one it will be defeated. So instead of making it defeated on day one, why not have a convention that's democratically accountable. And if it were accountable and it proposed an amendment, then that amendment could be considered by the states in the regular way states would consider an amendment. The point is with a relatively small number of states aligned together to insist on democratic accountability in the convention process, you take this process, which right now everybody's terrified about, and you turn it into a legally binding process, act in the way that it's intended to act, and gives us a chance to actually get a constitutional amendment when right now we don't actually, through Congress, have any such chance. So yes, I'm still strongly in favor of this movement if we can at least get the left to start to get their head out of the sand about it and realize it's coming. Let's now figure out what do we do with it to make it so we can actually gets something that's valuable to the whole nation.

0:50:06 Thomas: We always have that 75% backstop. I think I misunderstood maybe, like, even the results, I guess, of the work product of that convention — still needs that 75% kind okay. I didn't realize that that makes me a little less scared about it.

0:50:20 Lessig: Yeah. Now, the reason you might have been led to be afraid of it is that, you know, the history of our Constitution's founding also involved a convention. That convention was convened under the Articles of Confederation, or that was convened when the Articles of Confederation were our Constitution. And that convention was originally convened for the purpose of proposing modifications to the Articles of Confederation. What people will tell you is they'll say — you know, people on the left and right, like Robert Reich, will tell you — that convention ran away. And by that, they mean that convention didn't make amendments to the Articles of Confederation. It basically tore them up and it proposed a whole new constitution. They say that because they tore them up and proposed a new constitution, that's the constitution we got because of the convention. But what that story misses is that, yes, it's true. The convention got together. They read their charge. It was proposed amendments to the Articles of Confederation. They said, the Articles of Confederation are broken. There's no way to fix them. They said, our idea is that we should have a new constitution. So they spent a couple months in Philadelphia. They drafted a new Constitution. They sent it to Congress. And they said to Congress, we tried to do what you told us to do. We couldn't. Here's our best shot. Here's a new constitution. Now, obviously, this new Constitution is not going to be ratified under the old rules, because the old rules said every state had to agree, and there was no way every state was going to agree. So they said, here's a new set of rules. You just have to get nine out of the 13 states to agree, and then that's what we propose you do. It was Congress that then said, that's a good idea. That's what we'll do. So Congress sent this out and said nine out of 13 states rather than unanimous. Okay, the reason that's important is — is that something we should fear today, right? So let's say you had a convention, it was convened for the purpose of balanced budget. And instead, it kind of went crazy and said, forget the balanced budget

0:52:12 Lessig: Amendment. It is

0:52:12 Thomas: Well, I think a balanced budget would be crazy by the way, but yeah.

0:52:15 Lessig: Crazy. Right? But politically, here's something even crazier. Let's say they said, let's abolish the Second Amendment. We propose to abolish the Second Amendment, but then they say, look, there's no way that that's going to win three quarters of the states. So instead of winning three quarters of the states, we propose that what you do is hold a referendum. And if 50% of the people support abolishing the Second Amendment, then you ought to say the Second Amendment is abolished. Okay. So imagine they send that back to Congress and imagine Congress says, that's a great idea. Let's hold a referendum. And the referendum says, should we abolish the Second Amendment? And let's say 55% vote yes, abolish the Second Amendment. It would take a nanosecond for the United States Supreme Court to say, that is just not valid. That is not a validly elected, ratified amendment to the constitution, because the constitution says how you have to ratify an amendment to the constitution. So it would take no time at all for that amendment to be thrown out. And then the fear mongers will say on the other side, well, why didn't that happen in 1787? The answer to that question is there was no Supreme Court in 1787. There was no

0:53:17 Lessig: Authority for anybody to step in. And that's true. That would be another good idea.

0:53:17 Thomas: Let's go back to that. That. Marbury was wrongly decided from the beginning, as I always say. Wow. I think that is kind of that fear that I absorbed. And that does definitely make me — I'm going to have to reconsider my previous opinion on that. That sounds interesting. Good news. That's encouraging. I feel like we've taken a lot of your time and you've been so generous with it, Professor Lessig. We could go on forever, though — like, if you're not doing anything for the next few months, we could go on forever. No, it's been a pleasure. Thank you so much for coming on. Hey, is there anything you'd like to plug, get our audience to go follow you, buy a book, anything?

0:53:54 Lessig: You should go to Citizens to End Super PACs, which is the main initiative, because now the lawsuit's been filed. We're going to try to raise money to be able to fund an intervenor to make sure that the arguments are exactly as they should be. So they're going to have to raise a ton of money to support that. So they need your support to make it possible to defend this in the best possible way. Great.

0:54:16 Thomas: Yeah, for sure, we'll put that in the show notes.

0:54:19 Lessig: Thanks.

0:54:19 Thomas: Thank you so much. Yeah.

0:54:20 Lessig: So much. Okay.

0:54:20 Thomas: It's a pleasure, and hopefully, uh, we'll have you on again soon. Excellent.

0:54:23 Lessig: You ask, I am here. Okay.

0:54:25 Matt: It. Thank you.

0:54:25 Lessig: Thanks, guys.

0:54:26 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.