Our democracy no longer represents the people. Here’s how we fix it | Larry Lessig | TEDxMidAtlantic

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So, it turns out exactly a year ago, right now, right this minute, a year ago in Hong Kong, an extraordinary protest began. Protest begun by students, literally, high school and college students, elementary school students, then their parents felt a little embarrassed that they had let their kids work so hard and then they showed up as well. And the protest was about a law. And the law was proposed by China. The law was to determine how the Governor of Hong Kong would be selected. The law said, "The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." OK, so the idea was, there's a two step process. The first step was nomination, and then the second step was an election.

The nominating committee would be comprised of about 1200 people which means out of seven million people that is .02 percent of Hong Kong. Alright, .02% as you can see is a really tiny number. (Laughter) Really, really small. If you thought about it, relative to all the people in Hong Kong, it would look something like this, this tiny little corner is .02 percent. So .02% get to pick the candidates, that the rest of Hong Kong gets to vote among. And the protest was because the fear was this filter would be a biased filter. The claim was that .02% would be dominated by a pro-Beijing business and political elite. So 99.98% would be excluded from this critical first step with the consequence, obviously, of producing a democracy responsive to China only. OK, now, it turns out the Chinese stole this idea from an American. Don't worry, there was no patent, no copyrights, there's no IP violations going on here.

But they stole the idea from an American. Maybe the greatest political philosopher in America – a man named Boss Tweed. (Laughter) Boss Tweed had a Tammany Hall political party. He used to say, "I don't care who does the electing, as long as I get to do the nominating." (Laughter) So, this conception, this kind of – (Laughter) (Applause) conception of politics has an obvious logic to it, right because, if you control the nomination, every candidate was going to worry what you, the nominator, think. So, you practically control the candidate, whether or not you control the ultimate election. We can call that genius theory – that genius theory for destroying democracy – Tweedism. Any two stage process where the Tweeds get to nominate and then the rest get to select is Tweedism. And the consequence of Tweedism, obviously, is producing a system responsive to Tweeds only. Now, Tweedism was practised not just in the North, not just in New York, it was practiced in the South too. Texas in 1923 practiced Tweedism by a law.

In 1923 Texas passed statute that said, "In the Democratic primary only whites could vote." Only whites could vote. Blacks can vote in the General Elections, if of course they could get registered, given all the barriers to registration. But only whites could vote in a democratic Primary. And of course, back then, hard to imagine, but back then the only party that mattered was the Democratic Party in Texas. So, in this two stage process, blacks were excluded from the first stage. 16% of Texas excluded from this critical first stage, with the consequence obviously of producing a democracy responsive to whites only. Now, those cases are obvious to us. Everyone looks at that and says, there is something obviously wrong with those so called democracies to set up their structure in that way. So why don't we see it here? We take it for granted in the US, that campaigns will be privately funded. But we need to recognize funding is its own contest, funding is its own Primary.

We have the voting system, where people vote, but in the first stage to that there is a Money Primary that determines which candidates are allowed to run in those voting elections. Now, that Money Primary takes time. Members of Congress and candidates for Congress spend anywhere between 30 and 70 percent of their time dialing for – this is an old telephone, you might not recognize this – but dialing for dollars. Calling people all across the country to get the money they need to run their campaigns, or to get their party back into power. B. F. Skinner gave us this wonderful image of the skinner box where any stupid animal could learn which buttons it needed to push for its sustenance. This is the picture of the life of the modern American Congress person As the modern American Congress person – (Applause) comes to learn which buttons he or she needs to push to get the sustenance he or she needs to make his or her campaign successful. This is their life, and it has an effect.

Each of them, as they do this, develop a "sixth sense", a constant awareness of how what they do might affect their ability to raise money. They become, in the words of "X Files", "shape shifters", as they constantly adjust their views in light of what they know will help them to raise money. Not on issues 1-10, but on issues 11-1000. Leslie Byrne, a Democrat from Virginia, describes that when she went to Congress she was told by a colleague, "Always lean to the green." And to clarify, she went on, "You know, he was not an environmentalist." (Laughter) So this obviously is a Primary too. It is the Money Primary. It's not the White Primary, it's the Green Primary. It's the first stage in a multistage process to select the candidates who will represent us.

So, if this is the structure, we should interrogate who are the funders. Or we can think about who the biggest funders are. In the 2014, the top 100 gave as much as the bottom 4.75 million funders to congressional campaigns. In this election cycle so far, 400 families have given half the money in the election contributions and contributions to Super PAC, so far. Four hundred families! That is not American democracy. That is Banana Republic democracy. (Laughter) And then we can think not just about the biggest funders but think about the relevant funders. Of course the people giving millions of dollars have the attention of the members of Congress. But how much do you need to give to be relevant? How much do you need to give to be big enough to matter to those Congress people as they are dialing for dollars to raise money from you.

Let's take people who maxed out in 2014. And in 2014 – that means you gave 5,200 dollars to at least one candidate in the General Primary and in the General Election. In 2014, it turns out, 57,874 Americans maxed out in that way. So we could say, 57,874 gave enough to matter to control, to be the dominant force in this first stage of the election process. And, some of you out there, the math genius out there might do the numbers. 54,874, hey wait a minute, that's .02% – (Laughter) – of America. .02% of America dominate this first stage in the process of electing the candidates who will represent us. They pick the candidates, because you can't be credible unless you get their money. And we get to vote for those candidates. This tiny fraction of the 1%, this Chinese fraction of the 1% dominate the first stage with the consequence, obviously, of producing a democracy responsive to these funders only.

It's Princeton study, which, as a Harvard professor I'm not allowed to talk about much, let's get it off the stage quick. By Martin Gilens and Ben Page, the largest empirical study of actual decisions by our government in the history of political science, related the actual decisions of our government over the past 40 years with the views of the economic elite, the views of organized interest groups and the views of the average voter. And what they found was there was a nice correlation between the views of the economic elite and what our government actually did. So, as you go from 0% of the elite supporting something to 100%, the probability of that proposal being passed, goes up. Same thing with organized special interest groups. As the number of them support something increases, the probability of that proposal being passed, goes up.

Here is the graph for the average voter. It is a flat line. Flat line, literally and figuratively. What this is saying is, as the percentage of average voter supporting a proposal goes from 0 to 100% it doesn't change the probability that that proposal will be enacted. As they put in English, "When the preferences of the economic elites and the stands of organized interest groups are controlled for, the preferences of the average American appear to have only a miniscule near-zero, statistically non-significant impact on public policy." In a democracy, this is true. Alright, here's the picture that we had, we were told of our democracy. There we were, citizens, driving the bus. But here is the reality, the reality is – (Laughter) (Applause) the reality is the steering wheel has become detached from this bus, we don't drive the bus anymore. We do not, that anecdotally, in the most aggressive empirical analysis have no relationship to what our government does.

This is a product of Tweedism. And what Tweedism is, is first corruption. It's a corruption of the design of our representative democracy. When Madison gave us our representative democracy he described it, in "Federals" 52, to be a system that would have a branch – Congress that would be, "dependent on the people alone." An exclusive dependence. But that's not our Congress. They are dependent on the people and dependent on the Tweeds. And then to go on, to clarify, Madison in "Federals" 57 said, by the people he means, "Not the rich, more than the poor." Not the rich, more than the poor. But that is not our reality. The people today mean, not the rich, more than the poor, except for the Tweeds. The Tweeds have more power than the middle class and the poor. This is corruption. It is not criminals, it is a system in which decent people who come to this city to do the right thing find themselves bent to do the thing the Tweeds demand – because that's the only way you can survive. It is corruption.

But it is caused by a basic inequality that we have allowed to evolve inside of our representative system. An inequality. Remember Orwell's, "All animals are created equal." And what we've got here, all animals are created equal but the Tweeds are more equal than others. It is inequality. But what is critical about recognizing that it is inequality is, if we could remove the inequality; if we could address that fundamental inequality in this representative democracy; If we could neutralize this Tweedism, then we could crack the corruption that makes it impossible for our government to do any of the things we want our government to do. We could achieve a system dependent on the people alone because only the people would be having the influence inside our government.

It would be a system where not the rich, more than the poor were the people because every one would, because of this equality, have the capacity to press the government in the direction they want the government pressed. Equality. I'm not talking about wealth equality, that's important to worry about too. That is not what I'm talking about. I'm talking about inequality we have as citizens. And to get that, what I've been arguing, we need to talk about is a statute, that Congress ought to pass tomorrow. Statute, let's call it the Citizen Equality Act. What the Citizen Equality Act does first, it changes the way campaigns are funded. To make it so that instead of this Green Primary we have a Money Primary, but citizens are funding these campaigns, as much as anyone else. The money comes from all of us through proposals like the American Anti-Corruption Act, or John Sarbanes' Government by the People Act that would provide small dollar public funding to fund congressional campaigns.

So that they wouldn't be dependent on this tiny few, to fund their campaigns. That's the critical first dimension of equality we ought to insert back into this representative democracy. And there's other inequalities inside of our system. We need equal representation inside of our system. This article, this fantastic article written by Christopher Ingraham for the Washington Post graphs these gerrymandered districts in the United States. These are congressional districts in the US. Here is my favorite example of this. You can see the natural community that bonds these people together here. (Laughter) This is a system – they said it's crimes against geography, that's kind of a nice way of putting it. This is the system where the politicians are picking the voters.

The voters aren't picking the politicians. And they pick the voters to create safe seats. Democrats and Republicans both play this game. So, in our Congress today, 90 seats are competitive. Which means 345 seats are these safe seats. Which means, if you are minority party in each of these 345 seats, you don't matter to the representative because the representative knows he or she doesn't need you. Which means 89 million Americans are not represented in this system, because we structured this in a way that makes sure that these people don't count. That is inequality. And Fair Vote has a proposal which is incorporated in the Citizen Equality Act to radically change the way we make these districts work so that we have proportional fair representation across the country. And finally, an Equal Freedom to Vote.

The absurd ways in which we make it hard for people to vote. And it is not accidental how we make it hard for people to vote. In the last election 10 million people had to wait more than 30 minutes to vote. Which for people with nannies and iPhones might not seem like a bad thing but if you are a working family who can't afford that kind of support, that's a poll tax that is too high for too many. And of course as the – (Applause) as the Brennan Center found in a study that they made of this, this poll tax is correlated strongly with race. It is racially correlated in a sense that where there are black or brown districts they are less likely to have the resources necessary to make it possible to vote easily. That, of course, I think is more directly correlated with party which leads to many proposals incorporated in the Citizens Equality Act, including the Voting Rights Advancement Act that would attack some of these provisions that make it hard for people to vote. And Bernie Sanders' suggestion of Democracy Day, where we move voting to a holiday so working people can vote just as easily as those who don't have to.

(Applause) So these three ideas get wrapped into one statute, the statute Congress could pass tomorrow to achieve this equality to make this representative democracy possible. OK, now, I push this as the core fight we ought to have and people say, well why? There are so many issues out there why would you pick this one to push? And there is a practical reason. The practical reason is we will get nothing from this government, until we get this. You want this government to address the problem of climate change, we will not get climate change legislation, until we address this fundamental inequality in this broken democracy. You want Congress to address the problem of social security to make sure that there is social security we will not get a government to address that problem until we fix this democracy. You want Congress to address the problem of student debt. We're not going to address the problem of student debt until we address this problem of democracy.

So it is not that this is the most important issue. It's not that those issues are the most important issues, this is just the first issue. This is the issue we have got to solve, if we are going to have any chance to solve the long list of critical problems that we as a nation must address. So practically this is why we need to put this first. But it is not just practical, it is moral. 400 years after slavery came to these shores, I think it is time we have a peaceful fight for equality. That we have a campaign, a national campaign, everybody who rallies around the idea that it is finally time that we stand up for this idea of equality. It is an embarrassment to our traditions that in 2015 we have movements that need to assert that black lives matter. How can that possibly be? (Applause) Well, I can tell you that it is because we have a political system that doesn’t count us equally. We have a political system that counts some more than others. We have a political system that betrays the fundamental idea of a representative democracy. 54 years ago, Martin Luther King went to Lincoln University, gave a speech in which he said, "America is essentially a dream, the substance of the dream is expressed in these sublime words words lifted to cosmic proportions: that all are created equal.

" We've heard it said that the Pope shouldn't talk about climate science, so I shouldn't talk about what the Creator meant, but let me tell you about the reality, whatever the Creator meant, reality is we are not equal in America today. Reality is we do have second class citizens in America today. And the reality is until we confront the fact that this ideal is a fantasy in America today, we will not begin to have a democracy that represents us. We need to learn from our brothers and sisters fifty years ago who risked their lives to fight for equality. And we need to learn from our brothers and sisters from all the way around the world who are risking their lives now to fight for equality. To fight for equality, to love for equality. To sacrifice that sense of love, to sacrifice for equality. because if we don't, how will we look at our children, who will look back at us and say, "Look at what you inherited and then squandered. Look at what you had and then left to us.

" Because we were given the nation with the potential to be the greatest democracy in the world and we have allowed that potential to die. Thank you very much. (Applause) Thank you. (Applause).

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