Joe Rogan Experience #1214 - Lawrence Lessig

1. 0:00 – 15:00

   Three, two, one. And…

   1. JRJoe Rogan0:02

      Three, two, one. And we're live. How are you, sir?

   2. LLLawrence Lessig0:07

      Hey, I'm great.

   3. JRJoe Rogan0:08

      Thanks for being here, man. I really appreciate it.

   4. LLLawrence Lessig0:09

      It is the coolest thing I've done.

   5. JRJoe Rogan0:11

      Really?

   6. LLLawrence Lessig0:11

      Yeah.

   7. JRJoe Rogan0:11

      Ever?

   8. LLLawrence Lessig0:11

      Well, you know.

   9. JRJoe Rogan0:12

      (laughs)

   10. LLLawrence Lessig0:12

       I can't remember that far back, but it's pretty cool.

   11. JRJoe Rogan0:15

       Um, I watched your TED Talk on, um... What was the word that you used? Uh, Lesterland?

   12. LLLawrence Lessig0:21

       Lesterland.

   13. JRJoe Rogan0:21

       Yeah. And, uh, it felt hopeless.

   14. LLLawrence Lessig0:25

       (laughs)

   15. JRJoe Rogan0:25

       Like, if, if... For people who don't know what I'm talking about, could you just give like a brief synopsis of... The way you were describing how comple- completely rigged our election system is.

   16. LLLawrence Lessig0:38

       Yeah.

   17. JRJoe Rogan0:38

       And, and what, what it actually takes to be elected and how much of the time they spend is involved in raising money and why.

   18. LLLawrence Lessig0:48

       Yeah. So we've got a system where we have a money primary and then we have a regular election. And in the money primary, to compete, you gotta raise tons of money to be able to fund your campaign. And when you raise that money, you raise it from a tiny, tiny fraction of the 1%. So in Les... In the, in the TED Talk about Lesterland, I said, you know, "Imagine a place called Lesterland, where, um, basically it's the Lesters who rule." And by the Lesters, I mean the same proportion of people named Lester as in the United States right now. So there's about 150,000 Americans named Lester. I'm one of them, but here we are, the Lesters. So imagine a world ruled by Lesterland. Um, because that's essentially the world we have because of the way we fund our campaigns. Because there's about 150,000 men who give even just the maximum contribution to one political candidate. Um, if you ask who... The number of people who give the maximum contribution over the course of a campaign, meaning in the primary and the general election, it's about 22,000 Americans in, uh, 2014 who gave the maximum (laughs) contribution to one political campaign. So what that means is it's a tiny, tiny fraction who are the most important funders of political campaigns. And candidates for Congress and members of Congress spend 30 to 70% of their time sucking up to this tiny, tiny fraction. And so is it any surprise that you see Congress bending over backwards to keep those guys happy? Because they know without those people, they don't have a shot at getting back into Congress.

   19. JRJoe Rogan2:31

       And the way you were describing it as... when you were saying it as Lesterland, it was like, imagine if we were this screwed up. That was essentially what you're saying.

   20. LLLawrence Lessig2:39

       Yeah.

   21. JRJoe Rogan2:39

       But we're more screwed up-

   22. LLLawrence Lessig2:40

       We're more screwed up.

   23. JRJoe Rogan2:40

       ... than Lesterland.

   24. LLLawrence Lessig2:42

       Yeah, we're more screwed up.

   25. JRJoe Rogan2:43

       That was a disturbing video because, uh, I was realizing, it was emerging as you were speaking, I was like, "Wait a minute. Is it that bad?"

   26. LLLawrence Lessig2:53

       Yeah. You know, it's... I actually, since that video, have come to think it's even worse, right? Because-

   27. JRJoe Rogan2:59

       So like a Clarence Land? (laughs)

   28. LLLawrence Lessig3:02

       (laughs) Well, it, it could be worse because it's even smaller number. And if you-

   29. JRJoe Rogan3:05

       Yeah.

   30. LLLawrence Lessig3:05

       ... look at the number of Super PAC, uh, donors, you know, the really critical Super PAC donor, about 100 people who gave more than half of the Super PAC money in the last presidential election. You know, so-
2. 15:00 – 30:00

   How would they stop…

   1. LLLawrence Lessig15:00

      seeing is that this is the first issue. If we don't fix this, we don't fix anything. And what's really encouraging to me is that that frame is increasingly being embraced by important leaders. So, you know, about, um, six years ago, I think, um, Nancy Pelosi was on Jon Stewart's show, The Daily Show, and Stewart said, "You know, the whole system's corrupt." And Nancy Pelosi's, "No, no, no. The system's not corrupt. Eh, eh, people in the system are corrupt, but the p- system's not corrupt." And Jon Stewart just had a field day because of how ridiculous that statement is now. But now Nancy Pelosi is gonna introduce as H.R.1 the most ambitious and comprehensive reform package that Washington, I think, has ever seen. I mean, it is unbelievable in its breadth. Um, so it has public funding of congressional campaigns so that congressmen don't spend 30 to 70% of their time sucking up to l- to the Lesters. It has a mandate to end gerrymandering, politic partisan gerrymandering, exercising Congress' power under the Constitution to tell the states, "Clean this mess up." It has an incredible, um, uh, ethics package to kind of close, block the revolving door so congressmen are not running off to K Street. And it has an incredible restoration of voting rights, the res- voter rai- re- re- Restoration of Voting Rights Act, automatic voter registration. It's the most comprehensive package of political reform, I think the civil rights bill of the generation, but, of course, nobody outside of Washington has heard anything about it because most people look at what Washington does and says, "Oh, this is just a game the Democrats are playing to embarrass the Republicans."

   2. JRJoe Rogan16:45

      How would they stop congressmen from becoming lobbyists?

   3. LLLawrence Lessig16:49

      Well, one thing they do, uh, and then they build loo- loopholes into it, but one thing they can do is they can basically say, um, "Once you're a congressman, you can't be a lobbyist for five years." Um, and-

   4. JRJoe Rogan17:00

      For five years?

   5. LLLawrence Lessig17:00

      Yeah, or whatever the time is. But the more fundamental fact is, you know, if you change the way you fund campaigns, if it was no longer the lobbyists who were kind of channeling the money in or that were getting their clients to channel the money in, then it's not like there wouldn't be lobbyists anymore. They just wouldn't be so well paid. They wouldn't be as valuable.

   6. JRJoe Rogan17:20

      Mm-hmm.

   7. LLLawrence Lessig17:21

      And if they're not as valuable, it's not as valuable for them to pay the congressman an incredible amount of money to become con- uh, lobbyists. You know, they would become almost like, you know, lawyers, policy wonks, that kind of go to Capital Hill and say, "Here's what'll happen if you adopt this legislation." Uh, you know, that's an important part of the process. But they wouldn't be the makers in the system. They wouldn't be the people who called the shots. And so the value of their services would fall, and if the value of their services fell, then, um, it wouldn't make so much sense to go and become a lobbyist. Maybe you'd come home and be a doctor again or come home and, like, be a businessperson again or do whatever you want, uh, back in your district. So I think if you change the way you fund campaigns, you would change 70% of the problem. You would just fix it right then. And these other things are good additions, but not as critical. But without changing the way you fund campaigns-... I think all of these other changes are irrelevant.

   8. JRJoe Rogan18:14

      (laughs)

   9. LLLawrence Lessig18:14

      They just can't get over the money.

   10. JRJoe Rogan18:15

       You always hear the phrase, "Take money out of politics." It's a constant phrase, but that's not really possible.

   11. LLLawrence Lessig18:21

       No. No, and I, I don't even think it's really good.

   12. JRJoe Rogan18:23

       No.

   13. LLLawrence Lessig18:23

       The point isn't, the point isn't to get money out. The point is to get money that doesn't represent a tiny fraction of the special interests controlling how Congress people think. So, um, I think today, uh, a congressman from California, Ro Khanna, is gonna introduce a bill that he hopes will be eventually part of whatever this big reform package is, that would create, um, a way of funding campaigns where everybody gets a voucher or a set of vouchers. You know, so Seattle has done this for city elections, where everybody gets four $25 vouchers that are only usable to fund campaigns. So a candidate comes around and tries to persuade you to give him or her the voucher, and then they take that voucher and they use it to fund campaigns. Okay. If Ro Khanna's bill passed, and everybody had vouchers to use to fund Congressional campaigns, and, you know, the idea is basically you take the rebate of the first $50 of your taxes, which every American pays at least $50 to the federal government. You take that first $50, you give it back, and you give it in the form of a voucher, and you say, "Take this voucher and help fund campaigns with it." Congressmen would still be raising money. They'd still be spending a large time raising money, but they wouldn't be raising money from the tiny fraction of the 1%. They'd be raising money from everybody. And so the point is that you would be using that money to spread the influence in the way that a democracy is supposed to spread the influence to every American, as opposed to the influence in a tiny, tiny fraction of the 1%. So that wouldn't get less money. I think that could be more money in the system, but it wouldn't be corrupting money, because it would be money that is democratically accountable.

   14. JRJoe Rogan20:03

       But the Lesters of the world would probably try to put the kibosh on that-

   15. LLLawrence Lessig20:07

       Yeah.

   16. JRJoe Rogan20:07

       ... before it ever got moving.

   17. LLLawrence Lessig20:08

       Yeah. I mean, you know, the biggest block to anything like H.R.1 happening is that the most influential people in Washington have the most to lose.

   18. JRJoe Rogan20:19

       Right.

   19. LLLawrence Lessig20:20

       The lobbyists, you know, the value of the industry of lobbying just collapses. Um, and those people are gonna fight like hell to block it.

   20. JRJoe Rogan20:26

       Yeah.

   21. LLLawrence Lessig20:27

       Which is why, as wonderful as it is to me to see somebody like Nancy Pelosi take up the charge and say, "Here it is. Here's a package of reform, and it's gonna be the first thing we do, fix democracy first." What, what's true, what's obvious about this is without a president taking up the charge, it's never gonna happen. And what's most depressing to me is that right now in the Democratic Party, you don't have any candidate for president who's making reform, uh, uh, even an important issue, let alone a primary issue. Um, and of course, we had a president who was elected under the Drain the Swamp slogan, but of course nobody believes he has any plan or have any intent to do anything to drain that swamp.

   22. JRJoe Rogan21:07

       Yeah, I'm hoping that having him in office is such a ... that the whole thing was such a clusterfuck and, and that so many people are so disturbed, that it's gonna make people more politically active-

   23. LLLawrence Lessig21:18

       Yeah.

   24. JRJoe Rogan21:18

       ... and more aware of the consequences of having someone like that in office.

   25. LLLawrence Lessig21:22

       Yeah, and actually, weirdly, unifying.

   26. JRJoe Rogan21:27

       Yeah.

   27. LLLawrence Lessig21:28

       Because even though the Democrats are not doing this right now, which is really depressing to me, you know, we, we have these things that we know we disagree about, and we, like, fuel the politics of hate as we kind of yell at each other about these things. But there's a set of issues that we all agree about, and the, and the most important set of issues we all agree about is the deeply corrupted nature of this government. You know, there was a poll done by University of Maryland in the middle of 2016 a- a- asking about anger and frustration with government, found the highest level of frustration in the history of polling. And then when they asked the reasons why they were so angry and so disaffected with their government, the reasons people gave were all the same, things like the influence of money, the influence of lobbyists, the parties care more about corporations than about ... And then, then when he broke them down about how do Republicans think about this and how do Democrats think about this, there was no statistical difference between Republicans and Democrats.

   28. JRJoe Rogan22:24

       Hmm.

   29. LLLawrence Lessig22:24

       You know, sometimes the Democrats were more concerned, sometimes the Republicans, and the levels were at like 80 and 90%. So literally 84% of Americans would say, "It is big money that is corrupting the way our Congress functions." Right? So here is common ground. And what was so extraordinary about the 2016 election is watch a Republican candidate stand on a debate stage, you know, in, in September of 2015. Donald Trump stood on a debate stage and pointed to every one of those candidates and said, "I own all of you. I've given all of you money, and I know the way the system works, and the system is corrupt." And he called super PACs an abomination, and he attacked the idea of money in politics. And so what that signaled is that Republicans too could be rallied to this cause of addressing this deeply corrupted political system, if only we could find the candidates who would do it. And I think what Donald Trump has done is teed up this moment where we can step back and say, "Look, we disagree about a lot of things, whether it's GMO or climate change, whether it's healthcare for all, or college for all, whatever. We disagree about a lot of things, and we gotta work a lot of things out. But here is something we all agree about, and we should be smart enough to realize if we don't fix this, then none of the things we're arguing about matter." You know, you can't ... Uh, it's not serious to stand on a debate stage and say you, you support single-payer healthcare without also saying, "But first, we're gonna fix this corrupted system," because there's no way to get single-payer healthcare in a world where doctors and pharmaceutical companies and insurance companies are funding elections. You can't say you're gonna get climate change (laughs) legislation in America without addressing the corrupting influence of money in politics, because the oil comp- the, the dirty energy industry has an enormous opportunity to block this change through the way we fund campaigns. So this is a moment where we should be able to get everybody in this political system to step back and say, "Hey, wait."... the system's broken. We can see it's broken. The first thing we have to do is to fix the broken Congress, and if we fix that Congress, then we have a chance to have an argument about what policy makes sense for America. And, and we each have our views, but no, the views are different, but, uh, the thing we don't agree about, we should be able to agree on.

   30. JRJoe Rogan24:38

       Now, if that's a universal agreement amongst Republicans-
3. 30:00 – 45:00

   Is it a natural…

   1. LLLawrence Lessig30:00

      the politicians, which he does not. I mean, the guy's been in Congress for almost 30 years now. And so it might be natural for him not to notice that the people around him are the problem.

   2. JRJoe Rogan30:10

      Is it a natural thing, or do you think that he's possibly-... aware of the consequences of stirring up that hornet's nest? Because, you know, if anybody has a right to complain, when the DNC conspired to rig the primaries- Absolutely.

   3. LLLawrence Lessig30:24

      ... against him. He's the number one guy, he should be screaming from the rooftops, "You're dealing with a corrupt system and this is disgusting." And he didn't d- didn't do that. And he didn't do that while Hill- Hillary Clinton was running for president and he knew it. He knew he had been screwed out of the primaries, he knew they had conspired, he knew it was all illegal, and he kind of just kept his mouth shut. Yeah, well, I think, you know, that was a responsibility.

   4. JRJoe Rogan30:47

      Yeah.

   5. LLLawrence Lessig30:47

      I think that was a kind of, um, um, you know... I was a person reflecting on the horrendous outcome if he took Hillary Clinton down. And so I think he restrained himself. Um, you know, not perfectly. I mean, the fact is after it was clear he was not going to be the nominee, he still continued to talk about the, quote, "corruption" around Hillary, which Donald then picked up and turned-

   6. JRJoe Rogan31:09

      Mm-hmm.

   7. LLLawrence Lessig31:09

      ... into, uh, a weapon against her. But I think he re- he recognized, you know, as every responsible politician does that, you know, it's not just about him, it's about the future of America. So when he restrained himself and didn't want to take the whole system down then, um, I- I- I get that.

   8. JRJoe Rogan31:25

      Right.

   9. LLLawrence Lessig31:25

      But what I'm talking about now.

   10. JRJoe Rogan31:26

       Right.

   11. LLLawrence Lessig31:27

       I'm talking about when you've got the House of Representatives talking about fundamental reform, it'll be the first thing they take up. We at least oughta have a presidential campaign where candidates are saying, "Hell yes, the first thing we will do is to end the corruption that makes it impossible for this Congress to function." And stop pretending like we can get all these wonderful things given to us by Santa Claus without fixing this first. You gotta do the hard work of convincing America that there is a solution because, you know, the reality is, I think most of America is where you started this podcast, most of America thinks it's deeply corrupted and there's nothing that can be done. They're half right, it is deeply corrupted, but it's not true there's nothing that can be done. We can do something. And in fact, I think we can solve almost, uh, you know, 80% of it. I- I- I j- I still think there's constitutional changes that might be necessary and I've been working, like, how do we get constitutional changes and talking to people a- a- uh, my- my podcast, which of course has about 1/1000 of the... 1/1,000,000 of the people listening (laughs) to it as yours does, but...

   12. JRJoe Rogan32:30

       What is your podcast so people can listen to it?

   13. LLLawrence Lessig32:31

       Uh, it's Another Way. So season two is released today which is about an Article V convention, but season one was about how to think about the 2020 election. Um, um, but, you know, I- I think that, uh, we might have to have constitutional change and I have been supporting the efforts to think about that, but what we've got to do is to give people a sense that there's something we can do before we amend the Constitution. You know, we did a poll and found 96% of Americans believe it important to reduce the influence of money in politics. 91% didn't think it was possible. So that's the politics of resignation.

   14. JRJoe Rogan33:06

       Mm-hmm.

   15. LLLawrence Lessig33:06

       You know, if you'd gone to Egypt under Mubarak and you'd stop the average person in the street and said, you know, "What do you think of Mubarak?" They would've said, you know, "We hate Mubarak." And then you'd say, "Well, why aren't you doing anything about it?" And they'd say, "Because nothing can be done." Or, you know, African Americans in 1900 in America, "What do you think about Jim Crow?" (laughs) You know, "We hate Jim Crow." "Well, why aren't you doing anything about it?" "Well, because there's nothing to be done about it." Well, that's how Americans think about this political corruption. They hate it, they think it's deeply unjust, inconsistent with what they thought America was about, but they don't do anything about it because they don't think there's anything to be done about it. And that's where leaders have a role. And what we need are leaders running for president right now to begin to explain to people, "Here's what we could do if only we built the power to do it," recognizing the most important opposition here, the lobbyists in Washington, are gonna be an incredibly difficult group to, to defeat, but we can do that. And if we do that, every other issue becomes easier to resolve in a sensible way.

   16. JRJoe Rogan34:10

       Now, there's no s- public support for lobbyists, right? There's no-

   17. LLLawrence Lessig34:13

       (clears throat)

   18. JRJoe Rogan34:13

       There's no people out there that are super psyched that lobbyists are out there and, and, and exerting their influence on our world.

   19. LLLawrence Lessig34:19

       (clears throat)

   20. JRJoe Rogan34:19

       But they obviously have enormous financial backing behind them and they have i- incredible influence in our, in our culture. But if you had some magic wand that you could wave across this system and, and fix it, wouldn't removing lobbyists be one of the first things that you would do?

   21. LLLawrence Lessig34:41

       No.

   22. JRJoe Rogan34:41

       No? Why, why so?

   23. LLLawrence Lessig34:43

       Well, because look, uh, you know, Congress, especially in the current government, legislates on a whole bunch of issues-

   24. JRJoe Rogan34:49

       Mm-hmm.

   25. LLLawrence Lessig34:50

       ... that they don't have a clue about.

   26. JRJoe Rogan34:51

       Right.

   27. LLLawrence Lessig34:52

       They don't know squat diddly about 99% of what they're legislating about. They need information. Um, one of the other things Gingrich did was to completely emaciate Congress's own information service. They used to have a really powerful information service that helped congressmen figure things out. All of that's basically gone. So they rely on outsiders to come in and help them understand it. Now, my view is, you know, that's an imperfect system because there's great inequality among the quality of lobbyists, uh, but if all lobbyists were doing was providing information, like, "Congressman, here's what's gonna happen if you pass this bill." Like, "These jobs will disappear," or, "This lead will reappear in the water system." If that's all they were doing, that's a really valuable thing. Information to the Congress to help Congress decide what to do is an essential part of making democracy work. The part of lobbying that is the corrupting part where they become the machers for the money, not so much that they give it directly but, you know, they call their clients and they say, "You need everybody at the C-level in your corporation to send $2,700 to this person," and, and they steer it like that. When they become the kind of source of, uh, resource for members of Congress, that's when they have this influence which is not related to their argument. So, you know, I've met lobbyists who, who hate the system as it is right now. They'll say things like, "Look, I want a system where I win because my ideas are good."... my arguments are better. I don't want a system where I win because I'm able to channel more money than that guy 'cause that's not a democracy. Like, a democracy should be these representatives are listening to us, and then they do, um, the right thing based on what they think helps their constituents, not how much they're gonna raise if they do this over that.

   28. JRJoe Rogan36:41

       How many lobbyists are there?

   29. LLLawrence Lessig36:43

       Oh, man. I can't answer that question. You know, one of the big problems we've got is that the law has been weakened in registering lobbyists.

   30. JRJoe Rogan36:52

       Mm.
4. 45:00 – 1:00:00

   Well, uh, it seems…

   1. LLLawrence Lessig45:00

      of the Constitution (laughs) would've looked at these Super PACs and said, "These are an abomination. These are outrageous from the perspective of the democracy they were trying to create." And those justices should, at least one of them, be willing to stand up and defend the framers' values against this modern corruption. And if just one of them voted with the four liberals who've already said they think Super PACs are an abomination, then we could have a way to end the Super PACs in this system, and that, and that would be an enormous benefit because they've become so powerful. But the courts alone can't save us. Even if you ended Super PACs tomorrow, you still have Lesterland because the Super PACs are not what I was talking about in Lesterland. What I was talking about in Lesterland was giving to candidates directly, and the small number of people would still be giving to candidates directly, and the only way to solve that is for Congress to pass l- uh, new laws that change the way campaigns get funded. That's the sort of thing HR1 is trying to do. That's the sort of thing Ro Kahana's trying to do, but that's the sort of thing that we don't have a president to support right now. We don't have Democratic presidential candidates who are making it the champion issue right now, and, um, it won't get done unless they do.

   2. JRJoe Rogan46:16

      Well, uh, it seems complicated to people when you try to explain campaign finance and you try to explain contributions to candidates and contributions to sitting senators and congressmen. It's, it's complicated and, and there's so many different things to think about when you're discussing this, that to a person who's on the outside, "Well, how do you fix this? Well, what are, what are the laws now? Well, how did it-

   3. LLLawrence Lessig46:37

      Yeah.

   4. JRJoe Rogan46:38

      ... get that way? Well, well, w- how about make it so they can't give them money?"

   5. LLLawrence Lessig46:42

      Mm-hmm.

   6. JRJoe Rogan46:42

      And there's all these, like, real simplistic views of it from the outside, but it seems that it l- at the very least, limiting the amount of money that someone's allowed. Like, what is the maximum amount of money someone can give to a candidate?

   7. LLLawrence Lessig46:55

      Right now, in the primary and the general, it's $5,400, $2,700 in each, and that goes up according to inflation. And that's pretty small potatoes compared to what the Super PACs are doing in this election.

   8. JRJoe Rogan47:08

      Right.

   9. LLLawrence Lessig47:08

      So you have these people running who expect they're gonna raise the money to run their office from their direct contributions, but they're counting on the Super PACs to come in and spend ungodly amounts of money, like, tens of millions of dollars, to support their candidate or to oppose their opp- their opponent. Uh, and so the supporters for those Super PACs are an even tiny... Those are the Adolfs in America, (laughs) you know-

   10. JRJoe Rogan47:33

       Mm-hmm.

   11. LLLawrence Lessig47:33

       ... the people named Adolf. This tiny, tiny, tiny number of people who are contributing, uh, to those, uh, to those things, but you're right. People... Look, there's no reason why most Americans should understand the complexities of campaign finance law, and they don't need to. What they need to ask is, "Do we have a system of integrity in the way we select representatives?" And if you're, if you're not brain-dead in America, you believe the answer to that question is no. We do not have a system of integrity. There's no representational integrity. It is corrupted in all the obvious ways. And, like, nobody should, like, be forced to study campaign finance in order to have the entitlement to say, "Hell, hell no, this system has got to end." Uh, and so I, I think you're right. If we f- you know, if people are forced to, like, articulate all the 34 different changes that have to happen, we're never gonna (laughs) get there, but let's not go there. Let's just start and end with, "It is a corrupted system, and we want politicians to fix it. And if they don't fix it, we'll throw them out until we get the politicians who do." Um, and if we could build that as the movement, the recognition, the core message of 2020, I think there's a real shot because we've primed the Republican Party. There are a lot of people in that party who are now so disgusted with the corruption of this system-Not necessarily Mitch McConnell, he loves it, but, you know, e- ordinary Republican voters. And the Democrats have now committed themselves to fixing this corrupted system. This is the moment to do that. And we don't have to get into the details of how much you should be allowed to contribute to say there is a way to fix this that would give us a representative democracy, maybe not again, but for the first time.

   12. JRJoe Rogan49:09

       Why is Mitch McConnell so, uh, uniquely evil?

   13. LLLawrence Lessig49:12

       This guy has had it in his, uh, uh, DNA from the first moment he went to Washington, um, to end any regulation of money in politics. He engineered the selection of the FEC, this is the Federal Election Commission commissioners, so that they would block basically every enforcement action of the FEC. The FEC does nothing now because it's a commission that has half Republicans and half Democrats. So if the Republicans disagree from the Democrats, then nothing gets done. They can't enforce the most simple rules anymore because Mitch McConnell has populated the FEC with people who don't believe in campaign finance rules. He has said Citizens United, this decision that said corporations could give unlimited amounts of money to independent political speaking, says one of the greatest decisions of the Supreme Court, and he has said he's gonna fight like hell to defend it. And when this proposed HR1 was raised to him, Mitch McConnell said, "There's not a chance in hell this will ever even get a debate in the Senate." This man is obsessed with the idea that money should have the power in Washington that it has right now, and people who are talking about reforming it are the enemy. And so, you know, the, the thing about Mitch McConnell is he's actually an incredibly smart man, and he's an incredibly smart strategist, and he's been playing this game for a long time. Um, and, um, and I think he's, like, responsible for 85% of the judicial structure that makes it possible for this to be blocked. There's an amazing series of debates happened 20 years ago between John McCain and Mitch McConnell. So this is when Congress was passing something called the McCain-Feingold Law, which was the last great effort to deal with this problem. It was flawed in a bunch of ways, but it was an important success. Mitch McConnell, um, uh, y- uh, stood on the floor of the Senate and said, "Mr. McCain says that, uh, the Senate..." Well, you can't say Mr. McCain. He said, "The senator from Arizona has said that the system is corrupt. I want him to name the corrupt people." And McCain stands there and said, "I'm not talking about particular individuals. I'm talking about the system. It's the system's corrupt." And then McConnell, almost clueless, just said, "If the system's corrupt, there must be corrupt people. If there's not corrupt people, then the system's not corrupt." So the only corruption he can imagine was corruption where somebody was taking a bribe, and if that's the only corruption we're allowed to remedy, then the whole system of influence we have right now is not to be touched. But, you know, I think McCain's point was you can have a system filled with lots of honest Congresspeople and lots of honest senators who never engage in bribery, but they know how to bob and weave and bend and speak and say the right things to attract the right kind of money, and that's as much corruption as bribery is. And McCain's view was we had to end it. So he was the last great Republican fighter for reform of this corrupted system. There've been many before. Barry Goldwater was an incredibly, uh, vocal opponent to the role of money in politics. Um, but I think what we have to do is to find a way to revive that and to leverage from this president's assertion that this is a corrupt system and we have to change the system into actually building the political power to make that change happen.

   14. JRJoe Rogan52:34

       Another thing that's very weird is that every four years or so, there's this cry to eliminate the electoral college. Uh, every four years ago, people realized that the battleground states are so critical and that so much money is being spent on this small handful of states because they give you all the electoral votes, and this is how you win an election. And then people say, "Well, why is that? That doesn't make any sense. It should be one person, one vote." Are we really that divided as a nation that we need to isolate ourselves into these small little lines in the, on the dirt where, you know, this part is worth this amount and that part's worth that amount? And so everybody plays this weird f- electoral college game, and then you get a situation like w- what just happened where Hillary Clinton wins the popular vote, but is not the president because the electoral college is what, what makes everything.

   15. LLLawrence Lessig53:21

       Yeah. So the way you just described this problem is exactly the way people have to think about it. The problem isn't... I mean, it is a bad thing that the loser wins. I mean, that's just not the way- (laughs)

   16. JRJoe Rogan53:32

       Right.

   17. LLLawrence Lessig53:32

       ... an election is supposed to work. So that's happened twice in our lifetime.

   18. JRJoe Rogan53:36

       Yeah.

   19. LLLawrence Lessig53:36

       Um, and, uh, it happened 100 years before that, and it's gonna happen more frequently going forward. We can show that demographically. But that's not the real problem. The real problem is that in every election, the presidential candidates are focused on just 14 states, the battleground states, the purple states, and those 14 states are the only states that matter to those candidates. And, and what scholars have demonstrated is that presidents and campaigns bend themselves and their policies to make those states happy, and those states don't represent America. They're older, they're whiter, their industry is kind of 19th century industry. There are seven and a half times the number of people in America working in solar energy as mine coal, but you never hear about solar energy in a presidential campaign 'cause those people live in California and Texas. They don't matter to the presidential election. What you hear about is coal mining because the 50,000 coal miners left in America happen to live in these battleground states. So this is just a product of the way the electoral college or the way states count their votes to allocate their electors, something called the winner-take-all system, so all but two states.... say that the winner of the popular vote gets all of the electoral votes for that state. So in, you know, in 2000 in Florida, um, George Bush won that state based on a stopped recount, um, by 531 votes. Uh, he got all the electoral college votes in that state, even though he just barely won that state. And so winner take all is what makes it so that it doesn't make sense for anybody to spay, uh, pay any attention to any of the non-battleground states and spend all of your time in the battleground states. In 2016, 99% of campaign spending was in 14 states.

   20. JRJoe Rogan55:25

       99?

   21. LLLawrence Lessig55:26

       99%. 95% of time, but the only ti- reason they were not 99% in those battleground states is the other 5%, they were in New York and California raising money, right? So (laughs)

   22. JRJoe Rogan55:36

       Huh.

   23. LLLawrence Lessig55:37

       ... so this is a system designed to give power to these battleground states. And then you say, "Well, why?" Is it something the constitution requires? And the answer to that is absolutely not. The constitution does not say how the states will allocate their electors. And indeed, when states started adopting this winner take all system, many thought it was ou- an outrageous perversion of the constitutional design. So Jeff- so, uh, Jefferson was outraged, but then he said, "Well, if some states are gonna do it, then all states have to do it." Because if you're a state that, uh, allocates all of your electors to the winner, you're gonna have more power than your neighboring state that only gives-

   24. JRJoe Rogan56:17

       Right.

   25. LLLawrence Lessig56:17

       ... half the electors to the winner. So very quickly, there was a race to the bottom, and that's kind of where it stuck. Uh, and so the question is now what we can do about it. Well, there are two big reform efforts out there. One of them is called the National Popular Vote Compact. Uh, I mean, I should say, you know, you could imagine amending the constitution, but it takes three-fourths of the states to change the constitution, and three-fourths of the states are not gonna agree with abolishing the electoral college. So this is not gonna happen anytime soon through the constitution. But there are two ways, without amending the constitution, we could fix this problem. One, the National Popular Vote Pri- uh, Compact is basically states who say, "Look, we're gonna pledge our electors to the winner of the national popular vote." So, um, the state, you know, looks at who won the national popular vote and then picks the slate of electors from their state with the party of the person who won the national popular vote. So in a state like New York, if, uh, the Republican won the national popular vote, even though most people in New York are Democratic, they would allocate their electors to the Republican, vice versa in Texas. That's, that's the way that system would work. And, you know, I personally like this system 'cause I believe in the idea of one person, one vote. Everybody's vote as an American citizen for the American president should be equal. It shouldn't, shouldn't matter that you're having to live in Wyoming versus Pennsylvania versus, uh, New York. Um, but there are people who are worried about this 'cause they fear that it'll become a kind of flyover democracy, that the only places that candidates will care about will be places like, you know, LA or New York or Chicago. I, I actually don't think that's right, but I get the understanding. I, I think they're wrong about the way the campaigns work, but I understand why they're anxious about it. So then that leads to the alternative solution, which is something, you know, my group, equalcitizens.us, is litigating, uh, this right now. Um, we're just trying to declare this winner take all system violates the constitution because it basically says that if you're a Republican in California, your vote never matters. If you're a Democrat in Texas, your vote never matters, because we just count your vote up, and then we throw it away.

   26. JRJoe Rogan58:22

       Right.

   27. LLLawrence Lessig58:22

       'Cause we allocate all the electors to the dominant party in your state. And so we've got, um, David Boies is our chief litigator. We've got a case in California, Texas, South Carolina, and Massachusetts asking the courts to declare winner take all unconstitutional and instead say that electors have to be allocated proportionally. So if you get 40% of the vote in a state, you get 40% of the electors. If you get 50%, you get 50% of the electors. And what that would do overnight is it would make every state in the nation competitive. Like, there'd be a reason for a Democrat to go to Texas, because you're not gonna get all the electoral votes. You're not even gonna get half the electoral votes. But you'll get 40%, maybe 45%, and that could matter. Um, or a Republican would go to California because, you know, you're not gonna get all the votes in California, but you're gonna get a lot. There are a lot of Republicans in California. Um, so this change would immediately make every state in play. But unlike the national popular vote alternative, there are many people who look at this and say this would be better because small states would still have a pretty important role. Like, an elector is an elector, and if I can get it from Arizona, I'm gonna care about Arizona. If I can get it from Arkansas, I'll care about Arkansas. Um, so it's not gonna just be the big states or the big population centers. It's gonna be every state. And so if we can get, you know, a court to say this violates the constitution, um, then you could have states forced to allocate their electors proportionally. And if they did that, um, then the problem that you identified at the start, which I think is the problem, could be solved overnight.

5. 1:00:00 – 1:15:00

   That seems like in,…

   1. LLLawrence Lessig1:00:00

      You would no longer have these battleground states deciding everything. You'd have a president who cares about getting elected by all of America, and that would be an incredible improvement.

   2. JRJoe Rogan1:00:08

      That seems like in, in and of itself would be a game changer.

   3. LLLawrence Lessig1:00:13

      Yes.

   4. JRJoe Rogan1:00:13

      If, if they could do that.

   5. LLLawrence Lessig1:00:14

      Yes.

   6. JRJoe Rogan1:00:14

      That, that would change a lot. But one of the things that you said, uh, you said you don't think that it's possible that we would ever vote out the electoral college. But is there support for the electoral college?

   7. LLLawrence Lessig1:00:25

      No.

   8. JRJoe Rogan1:00:26

      Is there a good argument for it?

   9. LLLawrence Lessig1:00:28

      Um, so there is support for the idea that every state have a, uh, a role, and there's a support for the idea that small states get a kind of thumb on the scale, uh, which is what the electoral college does. So there is some support, but most people, you know, 70% of people don't like the idea that the president is not chosen from the majority of voters voting.

   10. JRJoe Rogan1:00:52

       Right.

   11. LLLawrence Lessig1:00:53

       So most people would oppose it. But the point is to change the constitution-... you need the state legislatures or state conventions to agree with the change. And what many states, at least 13 states, I fear, would say is that, "You know, we actually win more under this system than we lose-"

   12. JRJoe Rogan1:01:11

       Yeah.

   13. LLLawrence Lessig1:01:11

       "... so we're not gonna change the system." Uh, and so unless you get, um, like some overwhelmingly popular movement to support it, or again, you know, you can imagine a presidential candidate who kind of made fixing this part of the democracy part of the plan too, I don't see how you're gonna build a political movement to, to get there. Another way of putting it is, you know, this National Popular Vote Compact, which is going around state to state and getting states to join, right now has about 100... And so the way this works is that when the equivalent of 270 electoral votes have been committed, then the compact kicks in. So when they get to 270, the problem goes a- you know, the problem of this electoral college goes away because at 270, according to the plan, the winner of the popular vote wins the electoral college. They right now have 172 electors pledged, right? So they have less than 100 more to go. But the problem is they've gotta convince states to join the compact, and they're kinda, they've kinda hit this red wall now because many Republicans think the only way to win the presidency is through the electoral college now. So many state legislatures-

   14. JRJoe Rogan1:02:19

       Why do they believe that?

   15. LLLawrence Lessig1:02:21

       I think many Republicans just think that, uh, their great benefit is from the electoral college. It's not surprising.

   16. JRJoe Rogan1:02:26

       Because the battleground states are-

   17. LLLawrence Lessig1:02:27

       Y-

   18. JRJoe Rogan1:02:28

       ... primarily Republican?

   19. LLLawrence Lessig1:02:29

       And because the base number of Republican states is so high, right?

   20. JRJoe Rogan1:02:32

       Mm-hmm.

   21. LLLawrence Lessig1:02:32

       Because, um, you know, these small rural states get disproportionally more electors than states like California.

   22. JRJoe Rogan1:02:39

       Right.

   23. LLLawrence Lessig1:02:39

       So, you know, Wyoming gets three electors.

   24. JRJoe Rogan1:02:41

       Disproportionately-

   25. LLLawrence Lessig1:02:42

       Yeah.

   26. JRJoe Rogan1:02:42

       ... in terms of the population.

   27. LLLawrence Lessig1:02:42

       Population, right.

   28. JRJoe Rogan1:02:43

       Yeah.

   29. LLLawrence Lessig1:02:44

       So they like the system as it is. And, you know, you look back and you say, "Well, they got George Bush even though he didn't win the national vote, and they got Donald Trump even though he didn't win the national vote." It's not hard for, to, to understand why they're there. I think, again, I, I don't think they're right about this. You know, in 2004, if 50,000 votes had switched to John Kerry in Ohio, then John Kerry would have won the electoral college, but lost the popular vote. And if that had happened in 2004, I think the electoral college would be dead today.

   30. JRJoe Rogan1:03:16

       Really?
6. 1:15:00 – 1:18:47

   Yeah. …

   1. JRJoe Rogan1:15:00

      that?" And-

   2. LLLawrence Lessig1:15:00

      Yeah.

   3. JRJoe Rogan1:15:01

      ... just-

   4. LLLawrence Lessig1:15:01

      And- and the stuff you learn at school is so politically correct-

   5. JRJoe Rogan1:15:04

      Mm-hmm.

   6. LLLawrence Lessig1:15:04

      ... it can't actually give you an understanding of anything.

   7. JRJoe Rogan1:15:06

      Yeah.

   8. LLLawrence Lessig1:15:06

      Like, if you actually taught kids in high school the way Congress worked, you'd, you know, the school board would go crazy, and they're like, "No, no, no, you can't talk down American democracy (laughs) like this." So-

   9. JRJoe Rogan1:15:16

      Right.

   10. LLLawrence Lessig1:15:16

       ... the truth is not teachable. The only way to get people to see the truth is to expose it to them in a way that they want to see it. And, you know, my point is, that's not gonna be Fox News. Um, Fox News can never cover it at the depth and the interest level that it needs to be covered. It's going to be things like what you do, um, or things like what, um, you know, great television can do.

   11. JRJoe Rogan1:15:37

       Is our system of government analogous to, like, taking, um, d- like, DOS or Windows 95 or something like that and just continuing to patch it and never revisit it and never come up with a new operating system?

   12. LLLawrence Lessig1:15:49

       I think the better analogy is an operating system that has been taken over by malware-

   13. JRJoe Rogan1:15:55

       Ah.

   14. LLLawrence Lessig1:15:55

       ... or some virus.

   15. JRJoe Rogan1:15:56

       Yes.

   16. LLLawrence Lessig1:15:57

       Because it's not innocent. You know, DOS, you know, was a fun system, and it, like, cranked to a halt after a while when you tried to pile more and more on top of it, but that was just kind of the limits of what it could do. There was nothing malicious in its failure.

   17. JRJoe Rogan1:16:11

       Mm-hmm.

   18. LLLawrence Lessig1:16:12

       But the, but there's something malicious in this failure. There are people who are eagerly focused on how to make sure our government can't govern, because if our government (fingers snapping) can't govern, they win. So, you know, um, the Koch brothers have this amazing div- d- d- you know, um, bipolar character. On the one hand, they're talking about the ideals of government, but the reality is, their interventions make it so we don't have an EPA that can regulate their companies. So basically-

   19. JRJoe Rogan1:16:41

       Hm.

   20. LLLawrence Lessig1:16:41

       ... you know, we have environmental policy that leaves their companies alone, which means they can make tons of money by polluting our environment without ever having to pay the consequence of it. And what they want is not change of a particular kind, except for tax cuts. What they want is nothing to happen. Um, and so that's the kind of, you know, malware that's taken over the system of our government, that's blocked the ability of the government to function. Um, and rather than having leaders at the center who say, "Hold it. (laughs) Let's just pause for a second and realize this is a fucking broken system," we have politicians that continue to pretend as if everything's working, you just have to elect more Democrats and we'll get what we want.

   21. JRJoe Rogan1:17:19

       Yeah. Um, voting online, what, what would be the pitfalls of that and why hasn't that been implemented? If you can bank online, why can't you vote online?

   22. LLLawrence Lessig1:17:29

       (clears throat) So I think, you know, most of the tech, uh, the experts who are disinterested, meaning they're not working for Diebold or something like that, uh, would tell you that we don't yet have the infrastructure to be able to be confident about this. Now, there are lots of people working on, I think, really great open source implementations, um, that, that could be, could eventually produce the kind of confidence that we need to have to be able to vote online. Um, and so I- I don't foreclose it in the long run, but I think what we've seen in the short run is that when we turn to these proprietary providers of technology to enable us to vote, they give us shit. Uh, you know, look at- look at these voting machines. There was this recent story about, um, this 11-year-old who was able to, uh, within, like, 15 minutes hack into the Florida election, um, uh, uh, system and change the results from, uh, you know, one, one candidate to another. Um, because, you know, the companies that build these technologies are not filled with a bunch of rocket scientists. Like, if you're really good, you're gonna go work for Google or for Facebook or something like that. So, so the proprietary software has all of these bugs and holes and intended back doors built into it that-

Episode duration: 2:17:46