Lawyers in Politics

Volume 2 • Issue 1 • November/December 2015
Cover
Main Article Image

A Presidential Run

A conversation with Lawrence Lessig

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School and the former director of the Edmond J. Safra Center for Ethics at Harvard University. Lessig was a candidate for the Democratic Party’s nomination for president of the United States in the 2016 U.S. presidential election, raising more than $1 million on a platform centered on campaign finance reform. He dropped out of the race in early November.

For this issue of The Practice, Lessig sat down for a conversation with David B. Wilkins, director of the Center on the Legal Profession, on lawyers in politics.

David B. Wilkins: The number of lawyers in Congress has declined pretty significantly, even since the 1960s, let alone the 19th century. I wonder, as a student not just of politics but of American constitutional law and history, whether that surprises you and whether you think it makes any difference.

Lawrence Lessig: It does surprise me, just because my obsession has been the interaction between the way we fund campaigns and the kind of government we’ve had. And among the class of people who would be in the best position to fund campaigns, I would have thought that lawyers were high on that list. They have the biggest Rolodexes filled with people able to help them.

In a time when you imagine Congress engaging in the actual work of legislating, deliberating, sitting in committee rooms doing markup, and arguing about the finer details of statutory language, it would obviously be valuable and important to have trained people in the room who understand how the craft of Congress interacts with the craft of the law. But to the extent that the practice of being a congressperson has changed to be more about raising money for their party and spending less time doing the actual work of legislating—and in particular having much of the legislating outsourced either to lobbyists or to the staff of Congress—it’s probably less important. I think that it’s unfortunate.

Wilkins: One of the things that Nick Robinson found was that the decrease in the number of lawyers was closely paralleled with a rise in a “professional political class”—people who, roughly speaking, start out as legislative aides and then maybe graduate to being staffers on committees and then move on from there to running for elected office themselves (see “Declining Dominance: Lawyers in the U.S. Congress”).

Lessig: That makes sense. Politics itself has become professionalized. We have gone from a period where politics is about getting as many people involved as possible to a period of “let’s just hire the professionals to be doing the job for us.” The problem is that those professionals are increasingly removed from ordinary people. That explains why the frustration of working with the people with their government has grown.

Wilkins: Do you think that has something to do with the kind of antipolitician, anti-Washington mood that has captured the country.

Lessig: I do. We know that people are dramatically affected by their cultural context. Over the past decade, I have spent an enormous amount of time traveling and talking about the issue of the corruption of Congress and the way money corrupts the system. Outside of Washington, it’s not an argument I need to make. It’s accepted and understood. Everybody has this view. But what’s striking is that inside Washington, you can actually find people who argue against it, people who say, “Money doesn’t have an influence” or “Money doesn’t have the influence you think it does.” And a bunch of that is just a cultural difference. Regardless of who’s right or who’s wrong, the point is that that difference makes it hard for people inside the Beltway to understand the frustration that exists outside the Beltway. The frustration outside the Beltway is palpable.

 

Wilkins: You’ve touched on something I want to explore in a little bit of depth with you, because you have been unique not just as a law professor writing and speaking about these issues, but you have actively engaged in electoral politics. I wonder how being a lawyer has impacted the decision to run for office or how you’ve approached the electoral political system.

Lessig: There is a particular part of my experience as a lawyer that directly connects to my political life. When I worked at the University of Chicago in their Center for Constitutional Studies in Eastern Europe, I spent a significant amount of time thinking about the relationship between legal structures, governments, and the culture of government. I cut my teeth on the ideas related to how we structure constitutions and how we might restructure them to achieve different structures. That experience has led me to think about the structural reasons for success or failure in a certain political context—and how might we intervene to produce change.

In the context of American politics today, we have to recognize that there is a hole at the heart of our democracy — Congress. Congress is a failed institution. And that fact leads me to think about the structural features or bugs within our current system of governance have led to that failure. And that in turn leads me to think about the elements that could bring about reform.

The idea that we might take this on as a systemic reform project is an idea that I have because of my own particular experiences as a lawyer. A person who has grown up as a tax attorney or in estate planning might not think about any of this in a similar way. I conceive of basic structures as open to change.

In the context of American politics today, we have to recognize that there is a hole at the heart of our democracy — Congress. Congress is a failed institution.

Wilkins: That’s very interesting, and it’s consistent, of course, with one of the things that we tell students about why going to law school might be a good thing for them so that they can learn about the structures of government, which will allow them to participate in public service and contribute to the public good. And yet, one of the things that’s interesting is that lawyers who do run for elected office, even lawyers who have had some of the same kind of background as you, rarely talk about that as being an important qualification for the job, whereas doctors, for example, tend to note their professional background more frequently, particularly when it’s relevant to big national debates such as health care.

Lessig: I think it’s certainly right. It’s actually not hard to understand. It’s just the unfortunate fact that lawyers are despised in our culture—wrongly, I believe, but that’s the reality. The only thing worse than being a lawyer is being a member of Congress. It would be interesting to see whether that’s always been the case, because I predict at a different time in history, people would be proud to say, “You should support me because I’m a lawyer. I know something about this.”

Wilkins: So you see this notion as being connected to a general perception of lawyers. Did you find this in your time going around the country? Did you find people doubting you or being skeptical about you because you were a lawyer, or even worse, a Harvard lawyer?

Lessig: I don’t think I got tagged with being a lawyer. I think there’s some skepticism about being a professor. It’s a standard way to signal the fact that you’re being treated with derision when somebody talks to you saying, “Professor this,” “Professor that,” as a way to make fun of you. And as a lawyer professor I was doubly tainted. If I were a professor of physics or of medicine, I’m sure that the association would be much more positive.

Wilkins: A very bright graduate student at Harvard did a survey in which she looked at Harvard Kennedy School students and law school students from Harvard and Suffolk and asked them about their views on electoral politics (see “Running for—or from—Office?”). The law school students were more skeptical about the value of being engaged in electoral politics, often thinking that they could have more influence on the public good outside of the political arena.

Lessig: One should be skeptical about the potential within the public arena. The public arena has become so compromised and corrupted. So I do understand not wanting to get involved in it.

But I am also increasingly passionate about raising the significance of the citizen-politician. These are people who don’t want to become part of the professional political class because, in some sense, they think the professional political class is a problem. But they believe they have a responsibility to do something about their crippled and corrupted government.

The only way we’re going to convince the political world to do something is if more people standing outside it feel the obligation to step up and try to fix it. And in that I think lawyers have a unique role.

There have been moments in our history where this has happened. At the very beginning of our history, when you think about the Articles of Confederation, at a certain point people outside of government stood up and said we have to get something new. They saw it as their obligation to step in. Indeed, they thought they were entitled to step in because they were citizens. That attitude is a really hard one to find in America today.

Somebody sent me an e-mail after I stepped out of the race that captured this sentiment in a powerful way: People take the corrupted system for granted, and then criticize anybody who stands up to it as crazy. The status quo has become so embedded that to question it is to be dubbed as nuts. The only way we’re going to convince the political world to do something about it is if more people standing outside it feel the obligation to step up and try to fix it. And in that I think lawyers have a unique role.

When I stated my work around copyrights, I was a lawyer with a guilty conscience. I thought that the law itself was the problem—copyright law was wildly restrictive, yet if you look at the traditions and principles behind it, there was no reason for it to be so restrictive. It was lawyers who were pushing it in a direction unrelated to the actual values of the law. Other lawyers needed to step up and defend the values and traditions of copyright law against the extremists.

Yet extremism was increasingly built into the practice of the law. The very business interests of the client make it increasingly difficult for lawyers to say what they think is true.

I experienced this once in a very literal way. I was asked to be of counsel at a law firm in San Francisco. When they asked, I told them, “Your clients hate me.” And they said, “That’s OK. We’ll talk to our clients. Don’t worry. We think it will be really valuable to have you inside for our perspective.” So I joined the firm as counsel.

Within a week, one of their top clients said to them that either I had to leave or they would. We had a meeting with the partner who runs the firm who said, “We’ve got a problem here.” And I said, “I know. I told you your clients hate me. You knew that going in.” And he said, “We think we can work it out. We think the clients are actually OK with you writing what you write as long as you publish it in the Stanford Law Review. But they would be upset if you published it in Newsweek or Wired. So, do you think you could agree to restrict your publication to the Stanford Law Review?” And I said, “No, I don’t think I could agree to that.” And he said, “Well, you have an ethical obligation. As a member of the firm, you have an ethical obligation to the business interests of our clients.” I said, “Actually I have an ethical obligation to myself. And so, if this is the conflict, it’s easy. I can’t be a part of your firm.”

I believe that lawyers have a professional obligation to work to save this republic from the deep corruption that has evolved. But in this case, there’s no conflict. The lawyers can stand up and say, “This is corrupt. It’s wrong and we ought to think about reforming it,” even if they’re inside a firm.

Wilkins: Apropos of what you actually just said, we get a lot of very idealistic students, at least when they come into law school, and many of them think about getting involved in electoral politics in one way or another. Do you have advice for them as somebody who has actually jumped into the fray and seen its difficulties, but also its necessity?

Lessig: If my son or my daughter was talking about getting into electoral politics, I would want them to think about how they could protect their soul. I don’t think electoral politics is filled with criminals, but I do think it’s filled with people who lose their soul. This isn’t because they choose to do evil. It’s because they’re in a system that forces them to behave in a certain way they know is inconsistent with their values. I would want to know how they were going to hold true to themselves. It’s like the people in Atlantic City ask, What’s your limit? What is the thing you’re not going to do?

If my son or my daughter was talking about getting into electoral politics, I would want them to think about how they could protect their soul. It’s like the people in Atlantic City ask, What’s your limit? What is the thing you’re not going to do?

The structure of rationalization inside of politics is not surprising to law professors. We understand how any truth can be inverted and any certainty can be turned into uncertainty; that’s our skill. But I think most people, unless they’re aware of that going into it, can easily slide into an endless cycle of compromise that in the end leaves them deeply cynical or deeply cynical about themselves. And I think that’s the most important thing to protect.

Wilkins: I’ll just leave you with what I tell my students all the time in my legal profession class: before taking any job, you should say to yourself, “What’s my Johnny Paycheck moment?” And if you don’t think about it at the beginning, by the time you’re in the middle of it, it’ll be much harder to remember your values.

1 2 Single Page

Lawyers in Politics Volume 2 • Issue 1 • November/December 2015

Cover