Larry Lessig: How to Fix Democracy
WHY YOU SHOULD CARE
Because America might be more of a plutocracy than we admit.
Here’s the thing we all have to see: The flaw in the design of Hong Kong’s proposed democracy — a flaw that has triggered more than a hundred thousand Hong Kong residents to take to the streets — is precisely the same flaw that sits at the core of America’s democracy too. And when we see this, the real question we should be asking is not what’s wrong with them. The real question is what’s wrong with us.
The plan that has triggered the Hong Kong protests doesn’t deny the voters the ultimate influence over the chief executive of Hong Kong. It denies them an initial influence. Under the scheme proposed by the Chinese Standing Committee of the Twelfth National People’s Congress, voters would get to choose which, among two or three candidates, would be elected. But it would be a committee of 1,200 Hong Kong residents that would get to pick who those two or three candidates are. The protesters fear the obvious bias in such a procedure, worried that the committee will be “dominated by a pro-Beijing business and political elite,” and thus the candidates that the citizens get to select from won’t be the candidates that reflect the views of Hong Kong’s citizens generally.
Because unlike the citizens of Hong Kong, most Americans believe there’s nothing we can do about it.
But that’s exactly what happens in America’s democracy too. The candidates that Americans get to choose from of course have been selected by voters in primaries. But to be able to run in a primary, or in a general election, those candidates must secure an extraordinary amount of campaign cash. The providers of that cash aren’t all of us. And they are certainly not even a representative sample of us. They are instead a tiny, tiny fraction of the 1 percent (arguably the same proportion of America as 1,200 is of Hong Kong), which, as a massive empirical study by Princeton’s Martin Gilens and Ben Page suggests, produces a government that is responsive to the “economic elite and organized business interests,” but not at all to “the preferences of the average American.” We have, like Hong Kong would have, a biased filter at the first stage of our democracy. And that bias produces a government that is not responsive to us.
So why then aren’t Americans in the streets, too?
Because unlike the citizens of Hong Kong, most Americans believe there’s nothing we can do about it. Hong Kong is still birthing its democracy. Getting it right still seems possible, at least to its kids. But as Americans have watched the dominance of big money in politics and society generally grow, they see the chance that we could do anything about it fade. A democracy corrupted by its dependence on the funders of campaigns seems as inevitable in today’s America as death and taxes. We are late in the midlife of our democracy. We have resigned ourselves to all the things that we can’t do anymore.
And perversely, the most prominent movement currently pressing for reform may actually be contributing to this resignation. The single, outstanding target of the reformers today is the Supreme Court, and the decisions by that court striking down campaign finance regulations. Those decisions are constitutional rulings. They can be reversed only by a new court or a new constitutional amendment. But the barriers to amendment are impossibly high, and justices on the Supreme Court seem to hang around forever. Thus most think the most we can do is to wait them out. Most believe that until that court changes, there’s nothing to be done.
That view is criminally mistaken. It is absolutely clear that with a single statute, America could radically change the way campaigns are funded. A simple majority in Congress could pass a law establishing small-dollar public funding of elections, perfectly constitutional even under the standards of this court, which would fundamentally alter the influence of big money at the first stage of an election. Rather than raising the money candidates need from the tiniest fraction of the 1 percent, small-dollar public funding would give them a chance to raise the money they need from a wide range of Americans. We all would be funding elections, just as we all are supposed to be voting in those elections. The bias in the first stage would be eliminated. And we would give Americans a reason again to believe that the actions of Congress were not driven by the interests of the “economic elite and organized business interests” alone.
This truth led Republican strategist Mark McKinnon and I to launch the MaydayPAC, a super PAC to end all super PACs, by electing a Congress committed to fundamental reform in the way campaigns are funded — by 2016. In 2014, we have selected a small number of races to prove what most in D.C. deny: that if given the chance, Americans, like the citizens of Hong Kong, care enough about the integrity of their government, and would vote for candidates who commit to restoring it. If we can show that in this cycle, then we’ll be back in 2016, with enough resources to win a Congress that would pass fundamental reform in the way campaigns are funded.
We want the same democracy that Hong Kong is protesting for — a representative democracy, representative at every stage of elections.
The key is a plan that seems winnable, because if there’s a fight that seems plausible to succeed, there is endless energy among Americans to join that fight. We want the same democracy that Hong Kong is protesting for — a representative democracy, representative at every stage of elections. If only half the proportionate number of Americans turned out to demand just that, you can be certain that we could get it.
The students of Hong Kong have started a movement. But that movement must now become global. Democracies throughout the world have lost touch with this basic and fundamental principle — that every stage of an election must be unbiased, if the system is to earn the trust of the people. We should join Hong Kong and demand that idea everywhere.
This story was originally published Oct. 12, 2014.