Lessig 2016: A radical institutionalist runs for President

My friend Lawrence Lessig is exploring a run for president. His first step was to ask individuals to pledge towards a $1m war chest before Labor Day, agreeing to enter the Democratic primary if he received enough support. As of this evening, over 7000 donors have pledged over $860,000, and it looks likely that Lessig will become a candidate in three days.

I’m one of those 7000 donors who is encouraging him to run. But supporting Lessig’s campaign is different from supporting Sanders or Clinton, (or Bush or Trump, for that matter), and I’m supporting his cause for different reasons than I’d support any of theirs.

If Lessig is elected, he does not plan to serve his term as President – instead, if elected, he would stay in office long enough to pass a package of voting and campaign finance reforms, then resign, leaving his vice-president (possibly Bernie Sanders, possibly Elizabeth Warren) in charge. His reforms, contained in the Citizen Equality Act 2017, would require public funding of Presidential and Congressional campaigns, seek anti-gerrymandering reforms like Single Transferable Voting, and strengthen laws against voter suppression, like the Voting Rights Act.

Lessig calls this a referendum presidency. In other words, he’s not asking people to vote on him as a potential president, but to use the presidential election as a referendum on campaign finance reform. If Lessig won the presidency, he would have a strong mandate to advocate for this legislation in Congress, and perhaps Congress would finally act on meaningful electoral reform once they saw a majority (or plurality, or plurality of electors, given our nation’s baffling electoral college system) supporting these reforms. This referendum strategy is consistent with an argument he’s offered in his last three books: campaign finance is more important than all other political issues, as we can’t make progress on other issues until we fix the laws that have turned the US from a democracy into an oligarchy.

I don’t think Lessig is going to win. He’s late to a race in which Clinton has a strong team, fundraising and endorsements in place, and where Sanders is already doing well in channeling the left of the party into a protest vote – splitting a liberal electorate with Sanders is an unlikely primary strategy. While I do think that there’s a large number of people on both the left and the right who see money in politics as a critical problem to solve, I think those who’ve aligned with Trump because they believe him to be beholden to no one will have a hard time switching their allegiance to a liberal Harvard professor. (It’s interesting to read Lessig on Trump, who Lessig concedes is a far more influential speaker on campaign finance reform at the moment than he is.)

It’s also reasonable to observe that even if Lessig did win, he’s still unlikely to accomplish what he wants. He would likely face a Republican-dominated Congress which would oppose a set of reforms that would disproportionately damage Republican’s chances in Congress. (Gerrymandering has disproportionately benefitted Republicans in Congress, and the voter suppression he’s fighting largely impacts groups that tend to vote Democratic. Both parties have some candidates with heavy SuperPAC support and others with primarily small donor support.)

What these analyses miss is that Lessig often wins by losing. Despite lambasting himself for losing Eldred vs. Ashcroft, Lessig’s failure to persuade the Supreme Court to overturn the Sonny Bono Copyright Term Extension Act became a rallying point for the anti-copyright movement, helping build Creative Commons as credible alternative to a system determined to keep works out of the public domain. Lessig was dismissed as special master from United States v. Microsoft after the software giant claimed Lessig was biased against him, but the experience helped shape Lessig’s masterful and influential book, Code… and the case was ultimately decided in ways consistent with Lessig’s arguments. Some of Lessig’s recent losses are harder to parse: the $10m Mayday PAC raised and spent without tipping a single 2014 congressional race might be read as evidence that the influence of money in politics is not as simple as buying elections by raising soft money. Or it might have been a win in drawing attention to the cause, yielding a New York Times front page profile, a New Yorker story, Washington post articles and a great deal of public debate on the topic.

Seen in that light, Lessig’s once again in a good position to win by losing, so long as his referendum attracts sufficient attention. Were Lessig to pass the threshold to participate in the Democratic Party’s six debates, he’d have an unprecedented stage to make his case, and it’s possible he could get a commitment from Sanders or Clinton to make his reforms a central priority. Even if he achieves a level of visibility where his possible inclusion in the debates is discussed, the unusual nature of his candidacy suggests coverage would focus less on personality and electability than on his issues. And the unexpected success of Zephyr Teachout, Lessig’s close friend and now head of the Mayday PAC, who captured 34% of the vote in the New York State gubernatorial election suggests that frustrated progressives may be willing to support campaigns that raise issues, even if they don’t win offices.

I respect and admire Lessig deeply, and support the reforms he wants to make. I think his strategy to “hack” the election and turn it into a referendum just might work, and that even if it fails, it could have an enormous positive effect on the 2016 elections.

But that’s not why I pledged to Lessig’s campaign. I pledged because I’m becoming an insurrectionist, and I wish I could still be an institutionalist.

Chris Hayes, MSNBC host and author of “The Twilight of the Elites: America after Meritocracy”, offers institutionalism and insurrectionism as a new duality to help explain American politics. Institutionalists (on the left and on the right) see the challenges faced by our country as challenges of reforming and strengthening the institutions we depend on: Congress, the courts, the tax code, immigration enforcement, banks. Insurrectionists have lost faith in one or more of these institutions, and no longer believe they can be saved. Instead, insurrectionists want to overturn these institutions and replace them with something that works better.

Those lining up to seek the election of candidates on the left and right are institutionalists – they see control of the Presidency and of Congress as critically important, as these are the institutions that govern our nation. Insurrectionists, from the Tea Party to Occupy, are often unconvinced that it matters who’s running these institutions, since the institutions are so broken that it’s very hard to use them to make meaningful change. Insurrectionism helps explain both a Tea Party insistence that professional politicians cannot solve America’s problems, as they are too much part and parcel of existing broken institutions, and Occupiers’ insistence that they did not have a package of political demands to present, but rather a different way of organizing a society.

Historically, insurrectionists have preached revolution. But it’s harder to make a case for revolution in the wake of the Arab Spring, where most revolutions left their societies wracked by conflict, or dominated by the strongest institution remaining once the government was toppled. (In Egypt, the government gave way to the institution of the Muslim Brotherhood, and then the institution of the military.) Fortunately, we’re seeing the emergence of effective insurrectionism, ways in which people who’ve given up on institutions are making change by building new technologies to fight climate change and by building movements to challenge social norms.

I’m fascinated by these new directions and have been writing and speaking about effective insurrectionism. But these ways of changing the world for the better would work a hell of a lot more smoothly if we had functional institutions working towards the same goals.

Lessig is a radical institutionalist. He’s trying something deeply unconventional, but the goal is not to overturn the institutions of American democracy, but to fix them. This approach can look crazy to most of the institutionalists because it’s so far outside the realm of established behavior, where predictable candidates run for office, and engage in the “art of the possible” once they’re elected. It looks doomed to many of the insurrectionists – we don’t believe Congress will let Lessig make the changes he wants even if he receives the majority of the popular vote.

And while it might be both crazy and doomed, it’s also the most hopeful and least cynical idea of this campaign season. While I’m calculating ways Lessig can win by losing, I believe that Lessig believes that the majority of Americans both hate the way our system currently works and believe it can be fixed. I believe that Lessig believes that we can cross boundaries of party and ideology to fix a problem that’s paralyzing our most critical government institutions and keeping America from meeting the needs of all her people.

I believe that’s a hope worth investing in.