Lawrence Lessig

Episode Transcript
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Speaker 1 (00:08):
Welcome, Welcome, Welcome back to the Bob Left Sets podcast.
My guest today is warrants Less, Harvard law professor, noted
legal scholar in candidate for president in glad to have you.
Glad to be here, Bob, thanks for having me. Okay,
Can the legal system save democracy? Yeah? No, only the

(00:29):
people can save democracy. Legal system is a very poor
backup for that. So, knowing that, what would you advise
the people to do or how do we move down
that path? Well, my own view is we have an
existential crisis facing us right now with this next election,
and it's critical not just um to get responsible leadership

(00:51):
in the White House, but also to get a Senate
that is responsive to the needs of Americans. And if
we could get both of those things, then I think
the first thing that next Congress needs to do is
to take up the challenge of removing the corruption that
that's at the core of our of our government, and
that's by passing the kind of reform that makes it

(01:13):
so that representatives care about what the people want instead
of what the tiny fraction of funders of their campaigns want.
Let's start right today, Right as we speak, there's a
crisis with the USPS United States Postal Service. Uh, they're
going to have hearings. Can hearings make any difference? Yeah,

(01:34):
what we've seen is that there's basically nothing that stops
this president. And so as as extraordinary as the post
post office crisis is, I think it's even more astonishing
to think what it signals about what's going to come,
because you know, what the president is doing with the
post office is literally, um, incomprehensible. I mean Jackson. It

(01:59):
turns out Saint Jackson did something similar way back in
the day when he was trying to get Martin van
Buren to be elected after him. Um. But since then
there's been a pretty clear understanding that the infrastructure of
the post office is not a political pawn for the president.
But here you have a president who has appointed his

(02:20):
number one contributor to dismantle the infrastructure of the post
office for the purpose of making it harder for somebody
to beat him in the next election. Now, of course,
the post office is not just a system for delivering ballots.
You know, there are people who have medicine, um, who
need that medicine, who will have that medicine delayed because

(02:41):
the post office isn't functioning well. I I sold two
things on eBay. It took six weeks for them to
be delivered using you know, the standard parcel post. The
standard away should have taken four days. Um. So we
are dismantling infrastructure to make it easier for him to
be re elected. Now, the idea that he to do
that shows there's nothing he want to And what terrifies

(03:04):
me is that the system we have for electing the
president is so fragile. It depends on people of good
faith on both sides participating in election. If you have
somebody acting in bad faith, especially with courts as pathetic
as our courts have been. UM, I'm not sure what
happens when he does everything he possibly can to make

(03:26):
sure that he gets another four years in office. Let's
talk for a second. What is Larry Lessig selling on eBay?
I was selling some used technology. I had an original
Apple TV and then I had from a G three
power book. I had one of those c D drives
for the G three power Book, which you know, got

(03:46):
ten dollars on any pay but whatever, okay, because the
remuneration is so low and the effort involved, I wouldn't
say as significant, but certainly takes time. Do you appreciate
the experience? Why do you take time out as opposed
to just leaving this stuff on the shelf for recycling it? Yeah?
You know my wife, Um, I love my wife. My
wife is obsessed about recycling and waste. So um, you know,

(04:13):
the the expense of the time, the hassle uh in
selling is tiny compared to that guilt that I would
feel if I if I tried to get rid of
it in the in the more rational way. So yeah,
I I try to sell it now. You know some
of these things like you know, the CD for a
G three power book. Um, there are not many out there.
And if you've got a G three Power book, I
don't know what you're using it for, but you know,

(04:34):
I'm sure you're happy to have that CD. So um,
part of me is okay with it. Okay. Staying on
that same topic, you know, there're been a lot of articles,
even the New York Times magazine that recycling doesn't work.
I know this is a little off topic going to
your wife, but you have any take on that. Yeah,
we certainly have not built up a profitable infrastructure for recycling.

(04:58):
And you know, there's I think there's a real debate.
Are we just trying to train people so that when
we get to that profitable infrastructure, we can deploy it effectively. Um.
Obviously other countries are much more creative about ways to
reduce or to channel waste. Um. You know, in Switzerland
you pay per I can't remember it's cubic meter or pound,

(05:20):
but whatever, you have this extraordinarily high price you pay
for every bag of trash that you might want to
get rid of. So it really changes that consumption pattern.
And and um, you know, we experiment with what we
can here. I've got three kids. Um, so there's a
limit to how idealistic we can be about these issues. Okay,
let's go back to the postmaster. Assuming you were advising

(05:43):
the Democrats, are those in power, what strategy would you
employ to try to fix this situation? Well, I don't
know that there is a strategy now. I mean what
frustrated me in March and April is that they did
use the leverage they had over the response to the

(06:04):
COVID crisis to guarantee that we would have the infrastructure
necessary to make this election work. Um. Everyone was so
obsessed with, like what do we do in the immediate term,
and of course in the immediate term they bent over
backwards to make sure businesses and relatively successful people were
taken care of, and there was a little bit of
a you know, six benefit that everybody could take advantage

(06:26):
of if they needed it. But they didn't build in
the guarantee for vote by mail at the states, and
they certainly didn't guarantee build in a guarantee that the
Post Office would have the capacity to do what it
needs to do. Having not done that, um, you know,
I think the most that they can do now is
just to drive people's focus to this fact. Now, that's

(06:49):
that's a hard thing to do in the media environment
that we live in right now, because you know, a
certain chunk of America is focused on a channel or
a couple of channels that will never cover any of
these issues in a way that reveals will suggest that
there's anything problematic with what the president is doing. Um.
And so you know, it's there's a limit to the

(07:09):
extent to which the Democrats can even get people to
recognize what's happening. But I think that, you know, we
need to begin a drumbeat of getting people to realize
a just how um just how extraordinary, how unprecedented. This
behavior is number one and number two. Get people to
begin to reflect on what will America look like if

(07:31):
this man is re elected in a way that everybody
believes is just theft. Um. You know, how does the
nation hold itself together? Because I think, you know the
other side, my side has been pretty patient after two
thousand and two thousand sixteen. Those were two elections that
were ordinary. They happened to flip the result from the

(07:51):
Democratic majority. But through ordinary process. We could argue about
Bush Vigor and Florida. But okay, we'll accept it. But
the idea that this man would be reelected through means
that people perceive as basically fraudulent or criminal and then
expect to govern peacefully, I think is just crazy talk.

(08:12):
And I'm terrified about what happens to our nation. Um
if we get to a place where that has happened
and there's no effective remedy, because obviously Congress can't impeach
the man. The partisan premise of Congress means there's no
impeachment at least depending on who controls the Senate and UM,
and that means that we're not going to have any

(08:33):
opportunity to remedy what you know will be an astonishing
moment in American history, the basic theft of the basic
theft of an election. Well, if we look at what
we'll call the Black Lives Matters protests with George Floyd,
it's he was not the first African American whose life
was taken at the hands of the police force. Yet

(08:55):
there was an international conflagration of protests after that. Uh,
do we anticipate any protests either before or after the
election spontaneously because as you said earlier, it depends on
the public serving the public. So does the public have
to rise first and then pull the politicians along with them. Well,

(09:17):
I don't expect unless there's some well, I mean, let's
be clear, there there are scenarios where, yes, there would
certainly be extraordinary protests in advance. So our constitution, which
is um, as I said, extremely fragile here, according to
the Supreme Court, plainly allows a state like Florida to

(09:39):
declare that, um, it's not gonna have an election and
it's just gonna pick its electors how it wants. So
Florida could declare before the election at least it's clear
after the election it's not as clear, but before the election,
the legislature could vote, well, we're not going to have
a vote, We're just gonna give the electors to the
Republican Party. If states do something like that, I think

(10:01):
you'll see tons of protests before the election. But if
we go through and we try to have a real
election and um, and it seems like there have been
games that have been played or I don't know why
we call it games. If there's criminal um, corruption of
the process of voting, uh, and afterwards, the consequence of
that is that um, President Trump is re elected. I

(10:25):
certainly think there will be extraordinary protests. How I'll be
out there with them because it is just not acceptable,
and it's there's a certain moment at which you've got
to stand up and fight for a democracy. And and
we've seen so much contrary to the norms of democratic
order over the past three years that at some point

(10:46):
we've got to say we can't accept it anymore and
do whatever it takes to make sure that it doesn't
have its effect. For those who are not constitutional scholars,
could you please walk slowly through the process of Florida
or another state picking electors and essentially punting the election. Well,

(11:07):
the Constitution, of course, doesn't directly elect I'd say that
the president will be directly elected. What it says is
that states get to a point in whatever manner, they
choose electors, and their electors then vote for the president. So, um,
the states appoint the electors. So they set up the

(11:29):
process to appoint the electors through state law. And if
prior to an election, the state changes its law and says,
you know, we originally thought there'd be an election, but
now there won't be an election. We'll just pick a
slate of Republican electors. The Supreme Court has said, most
recently in Bush versus Gore, but before that a hundred
years ago, in a case called McPherson versus Blacker, that

(11:51):
this that the states retain the right quote at any
time to recall the selection of electors and execute extors
eyes that power themselves. Now at the founding, there are
many states that did exactly that. Many states didn't have elections,
They just picked electors. Um. Some states had elections, um um.
Some of those elections were by district, others were at

(12:13):
the at the state level like we have today. Um.
So there are lots of different systems. Originally, we've all
converged now in the idea of the public having a
say through a vote, But the constitution doesn't say that
it must have a say through a vote. And so
if the state of Florida, governed by a Republican legislature
and a Republican governor, comes to believe that the only

(12:35):
way Donald Trump gets re elected is if Florida goes
with Donald Trump, and the polls seemed to suggest that
it won't, I am I would not be at all
surprised if they exercise this power to say that Florida
doesn't get a vote. Um. And I think what ought
to be happening right now is that people ought to
be clear about this possibility and demand that people like

(12:58):
the governor of Florida UH or the people running the
legislature in Florida, answer the question will you promise to
have an election? Will you promise not to cancel the election?
Because I think that there are so many scenarios where
you know, the pandemic recurs and there's all sorts of
anxiety about safety, and they say, well, we can't safely

(13:19):
imagine people going out and voting, and so rather than
risking their lives, we're going to cancel the election, and
we know that there's a Republican state anyway, so we'll
just give it to the Republican electors. There's so many
ways they could get away with it, and so I
think we right now need to start saying, Okay, just
be clear, are you going to commit to an election
and are you going to commit not to cancel the

(13:40):
election no matter what? Because you know, you know, we've
we've run elections during wars, We've run elections during the
Civil War. Uh. You know, Lincoln was re elected in
eighteen sixty four, it was another year before the war
was over. Um. So we've done it before, and I
think we need to be committed to doing it now.
But the danger is that there could be a strong

(14:00):
incentive for some states to flip if they're going to
try to make sure Donald Trump gets reelected. Okay, there
was a recent Supreme Court case relative to the obligation
of electors to vote according to the public will could
you explain that case in the effect thereof yeah, it's
actually my case. So um I UM UH was working

(14:24):
with electors from the state of Washington and UM and
my organization Equal Citizens had sort of teed up this
case both in Washington and Colorado because in two thousand
sixteen there was a question raised whether electors are free
to cast their ballot however they wish um, And we

(14:45):
thought it was really important that the Supreme Court answer
the question whether they have that freedom before it creates
a constitutional crisis. So we teed up the case and
we got electors in UM in Washington in state um uh.
These electors had been fined because they had voted contrary
to their pledge in and then there was an elector

(15:08):
in Colorado who had been kicked off UM. He cast
his vote contrary to his pledge and he was kicked
off and replaced with another elector. And so the question
we wanted the court to answer was whether, by being
given the power of a quote elector and told to
cast quote their votes, they're allowed to vote however they want,
or whether, as Justice Kegan put it, like a Soviet system,

(15:30):
they had to vote as they were directed. Well, the
answer to the Supreme Court was it's a Soviet system, um,
they have to vote as they are directed. UM. And
that made a lot of people happy because they don't
like the idea. And I understand at first glance why
one would not like the idea that electors have this
kind of discretion. Um. I actually, by the end of
the case, I argued the case in the Supreme Court,
or I argued it by telephone from my office in

(15:53):
the Supreme Court. Um. But by the end of that,
by the end of my preparation for that case, I
became pretty con vince that it was going to be
a huge mistake if the Supreme Court said that electors
didn't have discretion, because you can imagine that discretion being
the final safety valve in this whole disaster of an
election that we're seeing. But but the way the Court

(16:15):
decided it, electors are basically pawns. They can't do anything
except what they're directed by their state to do. And so, um,
if they're directed to vote one way, they're gonna have
to vote that way regardless. And so what do you
feel about the status today? Well, I think that there
are many ways in which this goes south. Um. Uh,

(16:36):
you know, he's just one. You know, imagine God forbid,
but imagine uh Joe Biden m wins the popular vote
but then passes away before the Electoral College votes the twenties.
Amendments passed in the nineteen thirties addresses the case where
a candidate dies after the Electoral College votes, but before

(16:58):
he's sworn in as president, and they expressly thought to themselves, well,
there's no reason for us to deal with the problem
of a candidate dying before the Electoral College votes, because
the electors have a discretion. They can decide to vote
however they want. And so if you know Joe Biden died,
you would imagine all the electors would vote for um
uh uh Kamala Harris. But the Supreme Court's decision means

(17:23):
they have to vote as their directed to vote. And
though the Court said, we're not actually addressing that case here,
we're not addressing that question. Um. If that scenario happens,
there's going to be a fight because if they vote,
if they're required to vote for Joe Biden, and then
they vote for Joe Biden, Joe Biden's vote can't be
counted because Joe Biden is not alive. So that means

(17:45):
it would throw the election into the House of Representatives,
and the House of Representatives under the constitution, votes one
vote per state, so you could have a clear majority
of people voting for a Democrat. But depending on how
the elections happen in you could have a majority of

(18:05):
states that are Republicans, state delegations that are Republican. So
you could have the Democrat win the popular vote and
would have won the electoral College vote, but for the
weird way that the votes get real allocated. But the
way the system ultily results is that House of Representatives votes,
and the House of Representatives votes for the Republican and

(18:27):
and again I think most people would be astonished at
that result. But that's plainly on one track in the
way that this election might unpack. What is the experience,
whether it be live or over the phone of arguing
before the Supreme Court certainly views of the some other
lower court, so it's pretty inferior compared to a lower court. UM.

(18:50):
I had two arguments in the last couple of one
in May and one in June or one in July.
One in the Supreme Court it was in May, and
one in a district court was in July. And the
problem with the argument in the Supreme Court is that
the Chief Justice set it up so every justice gets

(19:11):
basically two minutes to ask questions. UM. And uh, you know,
that's less than a congress person has. And so they
come into their argument with a list of questions. They're
not really listening to what other people have asked and
not really interested in creating a understanding around the argument
about the case. They're just interested in getting their particular

(19:31):
questions asked. So it it's a very it was a
very unsatisfying experience because I felt like so much was
being missed and every single answer you gave could be
no more than a hundred words, you know, no more
than a minute, because the chief would cut you off
so that somebody else can ask a question. When I
argued in the district court in California before Judge Judge
chen Um, uh you know, we had it was just

(19:55):
me and another guy and this uh Ted Olsen, pretty
significant lawyer Um and the judge. You know, we probably
went on for an hour an hour and a half.
The judge asked questions, He let us answer them as
long as it took to answer them. He probed the questions.
He you know, he really understood by the end our argument,
whether he agreed with it or not as a separate question.

(20:15):
But the point is it was an actually effective context
for for engaging in in in the question. And and
what's frustrating is, Um, you know, the case that I
was arguing in the District Court involving a regulation involving
cell phones. Um, you know, we think it's important enough,
but it's not the Constitution. And so the idea that

(20:36):
you would end the argument and feel like the judge
understands the question and can now decide for this cell
phone issue, but the Supreme Court barely pierces the issue
around the Constitution's uh electoral college was ultimately incredibly unsatisfying.
I've argued, you know, live in the Supreme Court, and

(20:57):
the differences when you argue live, there's no you know,
they don't go around one by one and say, what's
your question, Justice Thomas, what's your question? Justice ginsburg Um.
They just basically the person starts arguing and then people
interrupt him or her and ask questions, and that dynamic
actually builds, um, a kind of arc of the argument.

(21:18):
So you can the questions build of each other, and
by the end the case has kind of been you know, resolved,
you kind of understand the strong points and the weak
points on the basis of how people have engaged in
the argument. Now, even then, I think the Supreme Court
has been wildly to conservative and the amount of time
that it gives people to engage with them, um, you know,

(21:39):
and uh and and maybe you know, there was a
time when the Court was deciding a hundred and fifty
cases a year. It's down now to like less than eighty. Um.
So it's not I don't understand why they can't give
it more time. But um. But in either context, it's
not as great as it can be in the kind
in you know, other contexts like lower courts, and you

(22:00):
get stage freight or you intimidated at all in arguing
in front of the Supreme Court. I don't think that
I felt frightened. Um. You know, so no, I don't.
I don't feel that, I imagine, um, you know. Part
of that is just I had the extraordinary experience of
clerking at the court, and that was you know, an

(22:23):
honor and um and incredible fund. But it also is
an experience that taught you just how human the justices were.
And uh. And you you know, you realize these you're
not legal gods, um uh. And they're just trying to
understand the case, and you're kind of helping them to
understand the case. So it's not about being afraid of them. Um,

(22:44):
they're not gonna you know, evict you from the country
or get you fired. Um, it's just trying to figure
out how you bring them to the right place and
and and that's always hard. It's you know, it depends
on the case. It can be extremely hard, especially when
the result that you're arguing for would be a very
difficult result for the court to give given the political

(23:06):
reaction to that. So, you know, our side was arguing
electors were constitutionally free. UM. And we thought that was
an important position, and we thought, you know, I would
defend what the electors that I was representing did. There
was a CNN documentary about them on Saturday night. UM.
And you know, the basic story with these electors was

(23:27):
that after they saw that the candidate they were going
to vote for, Hillary Clinton, was not going to win,
they tried to work with Republican electors to get enough
of them to vote for someone other than Donald Trump,
so that the House of Representatives could then decide should
Donald Trump be the president or should another Republican be
the president. Nobody imagined Hillary Clinton would be the president,

(23:49):
so they were trying to exercise their discretion um to
bring about a result that was closer to what the
people who had voted for them wanted than the election
of Donald Trump would have been. But uh still, I
think when people talk about the so called faithless electors,
that's how they're referred to. It kind of scares people
to imagine electors having that kind of discretion. So if

(24:11):
the Court had ruled with us UM, you know, I
would be suffering an extraordinary amounts of hate from people
all across the country saying, how could you do such
a thing. Now, Donald Trump can bribe these electors and
they can vote however he wants them to vote, and
all of that, I think it's just crazy talk. But
but it still would have been anxiety producing and maybe
anxiety is the last thing the world needs right now

(24:32):
in the middle of this election. Staying with the Supreme Court,
the Conservatives tend to go with an originalistic originalism interpretation
of the Constitution. Give me your take on so they
want you to believe, But I don't think it's actually
true that that principle constrains them. It's more tool that

(24:56):
they can deploy when it fits with what they they
think they have to say, or what they what they
want to say. You know, I I've argued two cases
in the Supreme Court where the originalist answer was pretty clear.
The first case I argued was a case about whether
Congress has the power to extend the terms of an

(25:17):
existing copyright. So this was the sunny bono Copyright Term
Extension Act. Congress extended the term of copyrights in eight
by twenty years. That was the I think the eighteenth
time they had extended the term of copyright, and that
prior to twenty five years. Um. And so our claim
was the Constitution says Congress has the power to set terms,

(25:41):
set quote limited times for copyright, and it makes no
sense to say that every time that limit expires they
can extend it again and again and again. And we
had tons of originalist argument to say the frameworks were
very skeptical about the monopoly of a copyright and they
would want it restricted. Um. And I went, I made
that argument, and I fully expected the Conservatives would pipe

(26:03):
up and say, yes, that's what the originalist position is.
But they sat silent, and they joined. The five of
them joined an opinion by Justice Ginsburg, who's not an originalist,
So there's no complaint against her um which allowed Congress
to do whatever the hell they wanted. UM. And the
same thing with this case. UM. You know the original understanding.
You know, Justice Jackson, in an opinion two said, no

(26:25):
one faithful um to our Constitution can deny that the
framers contemplated what's implicit in the text, that electors would
have would be free agents, free to cast their vote
however they wanted. So an originalists would look at this
and they look, there's no doubt that's what they expected.
Whether that's what we expect or whether we should continue

(26:46):
to respect that as a separate question, but there's no
doubt that's what they expected. And an originalist I would
have thought, would have taken that seriously. But once again
the originalists were silent that the opinion UM written by
Justice Kagan is not Justice Keagan is not an originalist.
Justice uh Thomas wrote a concurrence. He agreed with one

(27:09):
part of our argument. He added something else from left field,
but but there too he was not constrained by original understanding.
So I I still have faith that will get them
to do the originalist thing when it's an important thing
to do, even when it's not an important thing to
do for conservatives, just an important thing to do for
the constitution. But I don't think it's fair to say
that they're consistent originalists out there. To what degree is

(27:33):
the Federalist Society important and impacted the court system? Leave,
Let's say the Republicans have played a long game over decades.
They were a minority in the educational system, They invested money,
they formed this organization. In the decades later, it seems
to be paying off. So to what degree is that
an effect? And to what degree is their concomitant effort

(27:55):
on the other side, the Federal Society has been the
most success full influence organization in setting the direction of
the federal judiciary ever. You know, it's begun in the
early nineteen eighties at Yale Law School, UM, Stephen Calibraze
and someone else. I'm blanking on the person's name. It
might be Lee Lieberman, UM start the start the organization,

(28:18):
And originally, you know, it started the Yale Law School,
which is a hotbed of liberalism. It started really UM
as an intellectual balance, as an organization that tries to
create an opportunity for conservatives to express their views in
a context where mainly liberals were um, holding holding the court, um,

(28:38):
the local law school court. Um. And you know, I
think from that, from that perspective, what they were doing
was perfectly fine. It was great because of course, adding
diversity to the intellectual environment of law school is what
we should all be aspiring to do. But over time
they developed very tight connections with the infrastructure for appointing judges,

(29:00):
and they almost became a kind of clearing house. Um.
You know, the ADA is supposed to be a clearing house.
The American Bar Association supposed to vet judges and give
their views thumbs upper, thumps down about qualifications. Um. But
the Federalist Society became an almost um you know uh
um a farm league or a feeding uh, a system

(29:21):
for feeding a supply of judges to presidents. Republican presidents
keen to appoint more judges. So at the lower court,
in the lower courts, district courts and courts of appeals,
they've been enormously important. And um, you know, this president
has appointed an extraordinary number of judges. I think the
numbers something like three hundred. But the point is, Mitch

(29:41):
McConnell views, this is the one thing he knows he
can get done UM, and he has bent over backwards
to a point as quickly as he can. Practically everybody
who's come through UM. There's no UM filibuster check anymore
that allows UM a minority to stop that type of appointment.
And we've seen some extraordinary appointments. People which the A, B.

(30:02):
A is that are plainly not qualified have been appointed
nonetheless because they are perceived to be UM extremely loyal
in a partisan sense at the lower Court. And we'll
see what the long term effect of this is will be. UM.
You know, I'm not somebody who believes that a person
who's a conservative is not qualified to be on the

(30:23):
court I or any court. I clark for Judge Posner,
the Seventh Circuit judge Judge Easterbrook was on the court
at the same time. They were both Reagan appointees, extremely conservative,
but you know, two of the best legal minds in
the history of America. So I think that there's you know,
extremely talented people on the right, like there are talented

(30:43):
people on the left. But I think that this effort
to appoint reliable votes as opposed to talented conservative lawyers
is a real mistake because it really UM dilutes the
integrity of the judiciary, and UM we've already seen um,
the beginnings of that. And I fear, you know, these

(31:05):
appointments of people who are in their forties, UM, thirties
in some cases, UM isn't a is a It is
an act that's going to have an effect for the
next thirty years, next forty years. Well other than railing
against this and being aware of it, certainly under Trump's reign, UH,
is the other side doing anything or they organized to

(31:27):
combat this effort by the right. I don't think that
they're organized in the same way. There's an you know,
a parallel organization called a c S UM, the American
Constitution Society, which UM, you know UH runs liberal direct
directed conversations on law school campuses. But they have not

(31:50):
tried to build the same kind of recruiting infrastructure. I mean,
you know, you could call the head of the a
c S and the of the a c S. I'm
sure we'll have people to recommend, but it's not like
the business model. UM. So you know, if there's a
democratic president elected, UM, and there's democratic control of the Senate, UM,
I expect there will be a lot of democratic judges

(32:11):
um who are or judges appointed by the Democratic Party who? Um?
Um you know who? Um. I will say, maybe this
is just stupid blindness or ignorance or bias on my part.
I will say they they are not going to be
people who the A B A says they're not qualified. Um.
You know, there might be young people. I hope they

(32:33):
are young people. Um, but they're not going to be
um that kind of people that Ms McConnell has affected.
And that's a good time. Okay, let's switch to an
earlier point, which is the silos that people receive their
information and leedless. Just say, in a three network world,

(32:55):
we have the fairness doctrine. Uh, if we ultimately go
all the way to see clear broadcasting, there used to
be a limit of the number of television stations you
could own. However, on the other side, their social media.
There's Facebook, there's Twitter, Snapchat and the other outlets that
there was just yesterday in the newspaper that uh, Facebook

(33:17):
increases the views of holocaust deniers. So what do we
do with a the raw issue of people not being
informed and be to what degree to these outlets contribute
to it? And what can we do about that. This
is the worst and hardest problem. Um So, first we

(33:38):
have to identify the source of the problem. And the
source of the problem is not technology and the abstract.
The source of the problem is the business model of
the technical technology platforms as well as television stations. You know,
when there were three networks, the business model of news,
which remember was coordinated. It's exactly the same time news

(33:59):
came on all three networks, so you know, you're watching TV,
you're gonna watch the news, and the business model of
those news stations was to shoot right down the middle.
It was a very kind of plain vanilla approach tell
the story and the way that was the most inclusive possible.
I'm not saying it was unbiased in some absolute sense.
I'm not saying it was comprehensive. There's certain issues that

(34:20):
never got covered. There's all sorts of ways you could
criticize it. But what you couldn't say is that it
was trying to create tribes in America. It you know,
Walter Cronkite thought that what he was doing was speaking
to America, and he wanted to tell the truth to America,
and the consequence of that was a kind of understanding
a common understanding that was shared by almost everybody, because

(34:43):
that's all there was, those three networks, and at that
time every day news was being covered. But once networks
were no longer the center of television, once cable television
came along and and you weren't forced to watch one
of three channels, you could watch one of a hundred
and money channels. Then the news needed to compete. You know,

(35:03):
news had to compete with Home shopping or um with ESPN,
and so it needed to find a way to bring
people to it. And the critical business model innovation was
Roger Ales at Fox News. You know, when Fox Rupert
Murdoch brought Rogers Ales in and he pitches to Fox
News how he imagines running Fox News. Um, he startles

(35:28):
everybody by saying that he's not going to try to
pitch the story to all of America. He's going to
focus on what he called the base. He's going to
build a network focused on the base of conservatives. And
by doing that he would build a loyal and coherent public,
which it would be easier to sell advertising too. And

(35:51):
so the idea of the business model focused on a
fraction of America is the critical change in cable television.
And initially only he is doing that. But now you know,
if you look at the ideological content of the three
major cable networks, they're perfectly separated. You have Fox far
to the well, not in an absolute sense, but relative
to UM, I mean Fox far to the right, MSNBC

(36:14):
to the left, and CNN kind of bouncing in between.
And that's a business model decision. And the consequence of
that business model decision is the people who get their
information from television increasingly come to believe, um, the world
is different from people who get their information from a
different channel on television. Barack Obama says, if you if

(36:34):
you watch Fox News, you live in a different planet.
And if you read the New York Times, um. And
so that consequence of this separated tribal world is a
consequence of the business model of cable television. And it's
the same thing with the digital platforms. You know, Facebook
is a platform for selling ads. That's where they make

(36:57):
their money. I mean they you know, gussie it up
by pretending it's all about community and all about enabling
people to share and connect and blah blah blah. But
the thing it sells Wall Street, the reason why it's
stock is valuable is that it's an extraordinary machine for
selling ads. But the way that it sells ads is
to figure out everything it can about you so that

(37:20):
it knows exactly what will work with you and so
that it can promise advertisers a higher return from their
ads than anybody else. And the way it does that
is it spies on you. It spies, watches everything you're
interested in doing, shows where you're, where you're going, who
you're talking to, what kind of things you're interested in.
And then after spying, it pokes you. It tries to

(37:41):
make you angry or happy, and it sees how you respond.
It's a constant experiment to develop a really sophisticated model
of you so that it can sell ads. And the
unfortunate thing for democracy is that it turns out fueling
this politics of hate is a really effective way to

(38:02):
learn things about you. If we can like hold up
the kind of red meat or um uh, you know,
to kind of inspire you to get angry, you'll engage more,
you'll share more, you'll be more responsive to what is
coming across your news feed. And the more responsive you are,
the more they know, and the more they know the
better their ads are. And so once again it is

(38:25):
the business model of the platform that is driving them
to engage with our political environment in a way that
weakens our capacity as a democracy to do what we
need to do in the context of an election, which
is to come to a judgment about which candidate or
which party is actually in the best interests of America.
And in both cases you can imagine a different business model. Um,

(38:47):
you can imagine a different way of like deploying the technologies.
But unfortunately we've backed ourselves into the worst possible pair
of business models. And the consequence of that is these
platforms are not contributing to a better democracy. They're contributing
to a more polarized, more tribalistic, less capable democracy than

(39:08):
one we've had than any we've had since the Civil War.
Now the ship really is sailed on broadcast television, the ratings,
the actual number of people watching these news channels is
astoundingly low. Despite the press. The younger generation is finding
their information online, so focusing on that, you know, a Twitter,

(39:28):
they say they're not going to have any political ads
at all in this cycle. Is there any way to
address the problem. You just delineated. Well, you know, there's
this some there's this great health movement called the slow
food movement. And what the slow food movement says is
the only way to respond to the terrible way people

(39:50):
eat is to look at how the human body works
and fit your consumption to the human body. And so
it turns out that if you cook your own food
and you eat it over a long period of time,
like over dinner with friends, you know, two or three
hour dinner, that that way of consuming food will be
the healthiest for you. Like you can't poison yourself the

(40:11):
way you do with processed food, and um, you'll eat
the right amounts and you'll eat it in a in
a at a pace that will actually um complement the
process in the body. So the fat slow food movement
is about finding the way to eat that fits our physiology.
There's an equivalence. We could call it the slow democracy movement.

(40:32):
And so the slow dog democracy movement, like the slow
food movement, says, you know, we do democracy well in
some context, and we do it poorly in other context.
So we do it poorly in a kind of Facebook
or Twitter environment, like we get riled up, we we
you know, act on the basis of a tiny bit
of information, were easily misled, were easily um guided into

(40:53):
the wrong understanding of the facts. We're just not good.
We're not We're not good in that environment. But there
are environments where we are pretty good. So, you know,
my favorite is an environment like this, a podcast, UM
where people have a chance, over a long period of
time to hear the arc or the development of a
story or an argument they understand and they have a

(41:14):
chance to reflect on it the way you know, humans
have that understanding and their ordinary interaction with ordinary people,
and that in the context of that type of engagement,
they learn about issues in a better, more comprehensive way
than they would ever over Twitter or over their news
feed on Facebook UM or you know, narrative um uh

(41:36):
UM content like um television shows that are um you know,
there are not documentaries necessarily, but that try to tell
a moral story or tell tell us story about some
historical moments that gives you a chance to imagine and
envision and see um played out the tensions of the
you know, moral issues or the the struggles. You know,

(41:59):
my favorite, even though there's a million reasons to um
uh to criticize the series. But like Homeland, which over
the arc of its six or seven series, you know,
brought in an incredible number of Americans to a differ different,
deeper understanding of the story of the Middle East than
they had when that series began, which was you know,

(42:20):
this kind of simple, black, white, good versus bad picture
of the Middle East. I think what the solution is
U is for us to find ways to channel more
of politics into context that we have a good reason
to believe humans can process. Well. Um, you know some
people's responses to say, we'll get humans out of the mix,

(42:41):
like let's just have experts, Like forget democracy, let's just
have a technocracy where you know, the smartest people, you know,
Harvard law professors, get to decide everything. And you know,
having known a bunch of Harvard law professors, I can
tell you that would be a disaster, would be the
worst thing in the world to imagine turning these decisions
over to the elite of a araka. But instead of
like giving up on democracy, I think we have to

(43:04):
wait to find a way to make democracy work by
giving people a chance to understand and engage on issues
in a way that we know they can actually process.
And so that means channeling away from the five second
ad or the thirty second ad on television or the
Facebook feed or Twitter into places where they actually have

(43:26):
a sense of what the issues are and they can
get a real sense of the people involved. But how
does that address the silo issue? Well, we don't have
the ability, given the First Amendment, to address it through legislation.
So we're not going to blow up the silos um.
They're going to exist until they're no longer profitable. So

(43:49):
the way to deal with the silos issue is to
just to give people a different sense of what they
want to do, what they want to consume, and then
they consume differently maybe hopefully. You know, that's the same
fight in the d of healthy food movement, like you know,
if all this unhealthy food, how are you going to
deal with it? You can't ban it, I mean, you know,
Michael Bloomberg thought you could basically do that with sodas
in New York, But you're not gonna across the country

(44:11):
ban it. The most you can do is get people
to reflect on like what's the actually healthy way to eat?
Like what sort of things should you be eating? And
let's develop the right Um, sensibilities of how we should
be eating and what balance we should have, and practice
that take responsibility, you know, both for your diet of
food and your diet of information. Be a responsible consumer

(44:32):
in both dimensions. Um. Now, I say that, and I'll
be the first to say, I'm not optimistic. You know.
I think that we're at a moment that we literally
have never been in before, a moment like this. I mean,
people historians will say the media a hundred years ago
was just as fragmented, just as polarized as it is today,

(44:55):
and they're right it was. But the difference is a
hundred years ago, there was no way to know what
the public thought. There was no polling, so you could
have a public that was partisan and divided and lived
in their own little echo chambers. But actually the people
who made policy were politicians in Washington, and they understood
both sides of the issue, and they were engaged in

(45:16):
real debate and deliberation about what they should be doing,
and and they did what they did, and kind of
what the people thought was irrelevant. We live in a
time where the public is polarized and divided, press is
completely partisan and drives people in their own little silos,
but we can see what the people believe, and so
you can always point back to what the people believe

(45:38):
as a justification for whatever crazy thing you want to do.
So seventy four percent of Americans think we need to
invade a rock, um, you know, based on misrepresentations and
falsehoods and ignorance about the actual facts. But that's what
America says. So that's what we have to do. And
so I think the problem is that we both um

(45:58):
have a system for un understanding what the people believe,
but don't have a system for giving people the chance
to believe what they actually would believe if they understood
the facts and had a chance to reflect on them
and deliberate about them. Okay, So you were essentially saying
there's no place for the legal system to address these
problems and social networks, not in America, not right now, um,

(46:24):
because any effort to directly affect the content of these
networks is going to be resisted by claims the First Amendment.
I mean, there are things to do on the margin. Um,
you know, I think that the legal system, you know this,
Donald Trump has sent something close to this, And I

(46:45):
don't want to sound like I'm mimicking what he said,
because I think it's importantly different. But I do think
that we can think more um Uh, we can think
it a smarter way about how to make platforms responsible
so that they don't allow misrepresentations UM to propagate in

(47:07):
a way that can be destructive. Right now, the legal
system basically gives them total immunity UM for defamation or
false information that they are allowed to spread UM. And
of course, when the business model is as it is,
where you have a strong interest to spread false information
for political reasons or even just for advertising reasons, UM,

(47:30):
that creates a really dangerous incentive. So I think the
legal system could, on the margin, tweak that and do
that better. But I don't think that the core problem
with the business model is going to go away because
of fixing that. So then you want to say, well,
can the legal system come in and you know, ban
advertising UM. And my my view is I'd love to try.

(47:51):
I'd love to say, let's see what happens if we
ban political advertising for six weeks before an election. I mean,
you know, it would be stupid to ban it all
the time, because you know, advertising is good for selling products,
and products drive an economy. And it might not make
sense to say ban advertising for like, you know, the
local state representatives, because that turns out to be a

(48:12):
really efficient way for them to get their message out there.
But where you've got these really polarized and potentially um
foreign influence driven campaigns for president or for the control
of Congress, I would love to see what happens if
we just turn off the mechanism for um tweaking or

(48:32):
driving the public according to whatever interest the advertiser might have,
and see what see what happens. Um. I expect that
you're going to see countries that try to do that,
and we might learn something from those countries. And it
would be great if what we learned is that's all
it takes, just turn off the advertising and uh, you know,

(48:53):
it's not that social media becomes great, but it doesn't
become the poison and that that it was in and
then I think it's to be in now broad concept.
Do you do you not believe social media, search networks, etcetera.
Should be liable for the content on their sites. I
don't think you can answer that simply. Um. I think

(49:16):
there are contacts in which they should be liable, yes, Um,
But they certainly should not be liable for everything, regardless
of the context or the steps that they've taken to
to avoid that content being there. So I don't believe
in the absolute immunity that exists right now, and I
don't believe we should go to a world where they're
liable for everything that I upload onto a network. You know,

(49:39):
it's got to be a more sophisticated kind of notice
and takedown infrastructure than the copyright notice and take on
infrastructure is. I mean, you know, let's be realistic. So
it M let's be real about this. It's not like
networks are immune from every bit of content that's up
there that might violate the law. I mean, they can
defame someone and they're you know, there's st free um.

(50:01):
Or they can allow defamation on their network and they're
scott free. But you know, if they allow a Disney
movie to be distributed on their network, UM in violation
of copyright, they're not scot free. UM. They're gonna be
responsible if they don't take steps to take that down.
So we've already decided that some content is important UM
for us to regulate, to make sure that the legal

(50:21):
principles are upheld and I think we could do more
to worry about at least defamation UM. And and you know,
I have a broader concept of direct manipulation UM. You know,
in the way that UM these fake videos events that
is for the purpose of misrepresenting or for um, you know,

(50:42):
creating descent where the actual facts don't support it. How
you do it is going to be so hard. I
don't imagine as a simple statement here or a simple rule,
but I do think we shouldn't give up on it,
because I think the consequence of giving up has already
proven itself to be really devastating. Let's address anti trust. Okay,
generally speaking, the Republicans have been looser than the Democrats

(51:05):
on this. We've had a number of very interesting things.
We have the Books case. The end result was that
books became more expensive. We had the T mobile Sprint thing,
where people on the left said, oh, we must have
these more competitors. Were as anyone who's a student of
the business said, Hey, Sprint is going to go out

(51:27):
of business, We're gonna go bankrupt. Then uh, we have
people like Elizabeth Warren saying let's break up the social networks.
What are your viewpoints about anti trust? And what should
the uh UH decisions be made upon. Well, I think
we should recognize that we basically had no antitrust enforcement

(51:47):
in the technology sector UM in any significant way since
the Microsoft decision twenty years ago. And I think that's
been a mistake. I think we've allowed out these companies
to get much bigger than they would have gotten had
ordinary principles of anti trust been deployed consistently throughout the period.

(52:09):
And I wouldn't blame Republicans for that. I mean, certainly
I blame Republicans for what happened under George Bush, but
I blame Democrats for what happened under Barack Obama. And
the the clearest moments when anti trust should have stepped
in was under Barack Obama. UM. And now we know
from you know, Mark Zuckerberg's email, UM that they're intent

(52:32):
that their game was exactly this kind of anti competitive
acquisition strategy. And and I think there's a real reason
to be worried about that. And I think that the
reason to be worried about it is much more than
just a pure economic reason. Right, the standard Chicago School
theory of anti trust is only worry about it if

(52:54):
there's going to be a harm to consumers. But I
think you also need to be worried about it because
it creates these entities that are so powerful that they
cannot be regulated. And so it's a there's this is
a um Luigi's and Galis calls the political antitrust, which
is a concern for the size and power of organizations,

(53:14):
not just because of the economy, but also because of
the political democracy. And I think from that perspective, we've
plainly lost control of Amazon and Google and Facebook. Um
these are entities which I, you know, as much as
Elizabeth Warren was, you know, inspirational in her aspiration, I
think it was kind of crazy talk to imagine the
government was going to be able to do any of

(53:35):
the things she was talking about, given the enormous power
that they have because they're plugged into everybody's lives directly. Okay,
let's talk about you for a second. Where did you
grow up? So I grew up in the kind of
Kentucky part of Pennsylvania, um town called Williamsport, Pennsylvania, which
is about a Little League World Series exactly right, Um so,
about eighty miles north of Harrisburg. And I, you know,

(53:57):
I was there from about the age of six until
I went to college. Okay, And what were the political
leanings of your family? So we grew up. I grew
up a Republican. I was quite an active Republican when
I was a kid. I was chairman of the Pennsylvania
Teenage Republicans. I was the youngest member of a delegation
to the nine eighty Republican Convention. UM, so you know

(54:20):
we were strong conservatives back then. Okay, what did your
parents do for a living. My father was a ran
a steel fabricating coming his own companies steel fabricators called
Williams Sport Fabricators. It was acquired by a company called
High Steel um Structures. And my mom um, for at

(54:40):
least the time I was in high school, was sold
real estate, but she basically did that as a hobby.
And how many kids in the family. So I had
two older siblings and one who are about nine and
ten years older, and then one younger sister who's two
years younger than I am. And the older siblings. What
sex were there? Boy in a girl point a girl?

(55:02):
So on some level you were in the middle, but
because of so many years in between. Uh, to what
degree what were your parents very supportive? Were you lost
in the shuffle? Where were you in the hierarchy of
the family. Yeah, you're right, So my older siblings are
basically gone when I, um, you know, I can actually

(55:22):
remember anything about my life, and so I think that
they were extremely supportive. I actually went away to school
for a couple of years, um, four years, and that
was a significant Where where did you go to school? UM?
I went to UM. It was called the Columbus Boy Choir.
So it was a professional boy choir UM in Princeton

(55:45):
from sixth to ninth grade. And that was says choir.
Was it musically oriented? It was a professional boy choir.
We traveled around the world and we sang. How do
you even get into that? You know? I was singing
in my urch choir and my choir director said, you know,
you do this pretty well. You should try out for
this boy choir. So I tried out and they told

(56:07):
me I should come and that that started UM in
sixth grade. And that was a big chunk of my
my youth and good experience or bad experience. So you
tripped into this question, bob uh. Yeah, So I've been
an article written about this that's not announcing anything to do.
In some ways, it was the best of times, in

(56:28):
some ways the worst of times. It was the best
of times because you know, I was a kid from
a small town traveling around the world understanding things that
no one at my age would have understood. It was
the worst of times because um, for um, two and
a half of those four years, I was sexually abused
by the director of the choir. UM and um had
had a profound impact on everything that happened afterwards. Um

(56:52):
and uh um, you know, kind of in my mind
defines what the experience was for me. So UM, I
don't know. It depends which day I'm thinking about it. Okay.
Does one ever get over sexual abuse of that nature?
Can you metabolize it? Does it affect future choices and experiences?

(57:15):
You never get over it. It's never gone. And some
people it's profoundly significant in everything they do. You know,
some people, it probably drives them into their own kind
of perversions. Some people that creates an extraordinary insecurity or
um pathology around the ability to connect to people. Um.

(57:40):
You know, I I think very few people have a
really clear sense of just how destructive mucking about with
those emotions of a young child can be um and
uh and so no, I you know, I would say,
you know, at the at the shrink level, um, um,

(58:00):
there's never been a moment that I haven't been affected
by it. At the professional level, I kind of think
of most of my professional career as in some sense
responsive to the the problem that I was obsessed with
when I was there. So that problem was, you know
what what struck me about that experience was that, of
course there was this criminal at the center, um, you know,

(58:23):
who was pathological and just you know, in some sense
couldn't stop himself. Um. And I wasn't the only person
he abused. He was probably depending on the year it
could have been abusing up to the school. I mean,
he was just you know, he was insatiable and unstoppable.
But the more striking thing to me was to reflect
on the people who were around him and in some

(58:46):
sense knew but didn't want to step up and stop
what was happening, either because they turned a blind eye
or because they thought it would be destructive of the institution,
or whatever the reason is. They were the enablers. And
I kind of feel like, if you you know, if
you really understood the threat of the work that I've

(59:07):
done from the very beginning of my career. It has
always been to try to draw attention to the institution
or the context of the enablers and to ask, you know,
you know, like the last work I did when I
was running the Edmund Saffer Center was focused on what
we called institutional corruption. And that's that's the corruption not

(59:29):
of criminals. It's not the quid pro quo corruption. It's
the corruption of the institution where people, good people in
the institution allow the institution become sensitive to our responsive
to the wrong kind of desires or interests. So when
Congress raises money to fund its campaigns, is there's very

(59:50):
little bribery involved in that, So it's not criminal in
the traditional sense, but it's producing an institution that is
um not responsive to the ordinary people. And it's allowed
to be that way because people enable it and and
support it, and they're not willing to step up and
just say this is wrong and we have to change it.
And so I feel like everything I've done in some

(01:00:11):
senses recurred to that same reflection in you know, very
many different legal context but all of that, you know,
comes from moments reflecting on what happened to me when
I was you know, twelve and thirteen and fourteen. Now
did you age out of that situation or did you
decide to leave? I aged out. You know, your voice

(01:00:33):
changes and you're gone. So my voice changed and I
was gone. Okay, did this affect your relationships with women
and girls thereafter? Of course, of course, you know not.
I mean, I'm happily married to an extraordinary woman. And um,
I know other people who had the same experience who

(01:00:54):
are not. So, you know, I feel but for the
grace of God, there goes I. Um. But you know,
in ways I've you know, we've gone far in this
conversation part further than I think either of us thought
we would. I don't want to go into the depth
or the detail of it, but yes, absolutely day to
day um uh, that hung right in the middle of everything. Okay,

(01:01:21):
so you age out, your voice changes? Should go back
to public high school? What is that experience like? After
being away for three years? It was difficult. People didn't
quite understand who, you know, what the experience had been.
Obviously I didn't tell people what the experience had been,
but it did. But it really affected how I understood

(01:01:42):
the world. I kind of thought, I kind of have
sex was at the center of everything, because sex was
at the center of everything when I was twelve, So
I interpreted everything around me as if somehow sex was
involved in it. So I remember it's extraordinary moment of
our neighbor came across the street and to tell me

(01:02:02):
that her daughter had just gotten a car and a
bunch of guys had you know, cleaned the car for
her and tuned it up. And the way my mind work,
given the experience I had had, I imagine, you know,
that sex had to be in that transaction somewhere, like
that's just the normal thing it would have been there. Um,

(01:02:23):
And I said something that reflected that, and she kind
of was astonished. And I think back on it, and
even I'm in stolished. It's like completely abnormal way to
think about the world. But you know, that's where I
had been delivered. I was delivered thinking that's the normal
way people interacted because that had been the normal way
I had seen for you know, many years of my

(01:02:44):
life at that point. So you're in high school, you
fit in, You're a nerd. Where do you fit in
the social total? Nerds total nerd. You know, I'm in
the bands, I I run. You know, I'm like a
leader in student government. I'm a smart kid. Um, I'm
not the number one, but the number two and um
you know, and I have a lot of good friends.

(01:03:05):
But but you know, the hierarchy of high school, I'm
not the football player or I'm not the the coolest
kids in the room. And and I'm obsessed with obeying
the law. So I don't I don't drink, and I
don't you know, go out and drive at times I
shouldn't be in Um. So you know in that sense, yes,
absolutely a nerve. Well where does that come from? The

(01:03:27):
sense you up to us toil the lawn? Legally? That's
totally my dad. My dad was an obsessive um, you know,
in the good in a good sense. He just you know,
completely absolute integrity sort of person. You know. The thing
I think about all the time with my dad is like, um,
in college, I worked worked in his firm. In high school,

(01:03:52):
I basically worked as a laborer, you know, doing work
drilling holes and steel. But after college, I I did
a summer where I was helping their finance departments, you know,
negotiate a merger and transition, and they the way they
did businesses they would bid jobs, um, you know, basically

(01:04:12):
usually to the state. They would give a price, they
would get the job. And um, there was one job
where the bidder forgot to include the bolts. So that
was a million dollars. And anybody would have at that stage,
you know, done everything they could to get out of
the contract, because a million dollars is a million dollars.

(01:04:34):
That was basically the net worth of the company right there.
And I suggested to my dad, well, what are we
gonna do. We gotta get out of this. We can't
go through it. You can't can't spend a million dollars
because of this mistake. And he said, my words, my word,
that's a we're not going to get out of it,
and we're going to find a way to make it work.
And you know, it's easy for a parent to talk

(01:04:54):
about the right thing to do, but the greatest opportunities
to be able to teach by showing somebody that you're
doing the right thing when it really hurts. Um. And
he did that all the time. And and so that
was that was what you made me think about how
I should behave too and you know, I just couldn't.

(01:05:17):
I couldn't break the law. Um, and did he get
that contract? He got the contract. He sucked it up.
I think they were able to cut back about half
of that loss, but it was a huge hit on
the on the company. Okay, so how do you decide
to go to pen and what's your experience there? Um?
I was a legacy. Uh, my father, my grandfather, my aunt,

(01:05:39):
everybody went to PEN. I did early admit, I got
in and so I decided to go. And uh I
went originally thinking I was going to be a businessman
like my dad. So I went to the Warden Business
School and as quickly as I could, I finished my
degree there and got into the I was interested in
the history of economics. And then I left. After I
finished PEN and with a degree from the college as

(01:06:03):
well as the business school, I went to Cambridge to
study philosophy. Well well, well, what was the inspiration? I mean,
because you've had a long peripatetic career in education. You
just said, okay, I want to I want to explore more.
There was no issue of going into the business world
or anything. Yeah, I mean when I finished, when I
decided I didn't want to be in the business. Um.

(01:06:25):
I then thought I'd go to law school. And then
so I applied to law school and I got into
law school, and then at the last minute, I thought,
I just don't want to go to law school yet.
So I was really obsessed with this philosophy course that
I had taken in my last term at Penn, and I,
you know, it was searching around for how I could
then do something else related to philosophy. And I thought

(01:06:46):
I'd go to England. And I looked at Oxford and
it required a thirty page essay to apply. And I
looked at Cambridge and it required a six word essay
to apply. So obviously I applied to Cambridge and I
got in. I went, and I spent three years studying
philosophy at Cambridge. And did you end up with a degree. Yeah,
I got what would become a master, as they have

(01:07:07):
this weird way that what wasn't originally undergraduate degree matures
into a master. So I have a Masters in philosophy,
and I thought it would become a philosopher. I thought
I would get a PhD. But then at the end
I just felt it was too remote, too removed from
the real world. So I came back to law school. Okay,
But what did you learn from that experience in the
UK other than socially? You know, I think that really

(01:07:30):
important part of education, part of growing up, is to
place yourself in radically different contexts. Now, England is not
radically difficult, different from America, but in many ways it
was m and so that makes you much more sensitive
to what in the background is making the world the
way it seems, and what is the part you're responsible for. So, um,

(01:07:55):
I loved my time in England. Um, it was extraordinary
luxury because I just got to read and write and
uh um and I had already had a degree, so
I felt like I knew something. Um uh. But um,
but it's uh, it was you know, that was a time.
It was a long time ago. It was eighty three
to eighty six. That was a period when you know,

(01:08:16):
Margaret Thatcher was the Prime minister. They were having these
massive coal strikes. Um, there was strikes of the students
because she was trying to cut back the welfare subsidy
to students. Um. So there's a lot of social unrest
in the country at the time. But I I felt
it was you know, the period where I could go

(01:08:38):
deepest and think deepest about stuff that was important. Okay,
so you go to Yale. What's your experience at Yale
Law School? Um? Well, first, I actually went to Chicago
and I transferred to Yale to follow a girlfriend who
had met in England who wanted to go to Yale.
So I spent my first year of Chicago. That begs

(01:09:00):
the question, what's the been Going to the uh University
of Chicago and going to Yale for law school? There
radically different places. Um, so Chicago is wasn't you know?
I'm sure it still less. I don't have a clear
sense of it today. But it's a great law school.
Really super kids, really really super professors. I mean, um,
you know Richard Posner, Michael McConnell, Cass Sunstein, Jeffrey Stone.

(01:09:26):
I mean, there was incredible mix of people there. Diane
would who eventually also became a judge with Richard Posner. Um,
and so it was an intense, really intense legal education.
Yale was more like a graduate school education. So, um,
you know, they're super smart, smart kids. Um, but they

(01:09:48):
didn't they almost didn't take the law seriously. They didn't
want to get deep into that, you know, the messiness
of the law. So I felt like, in some ways
it was the perfect education because I got a really
deep legal education in my first year from the Chicago
and then I went to Yale and I could be
more reflective and philosophical about it. And you know, given
I decided I wanted to be a professor, that was

(01:10:09):
a pretty good chance to um to be in that
environment for that. Okay, what happened to the girl? We
were very serious for many years, but in the end
it didn't work. Okay, how did you decide you wanted
to be a professor? You know, I realized I didn't

(01:10:30):
have the discipline to work on problems I didn't find interesting.
So I clerked at a law firm, crevass Wind and
More my first summer and on my second summer, and
and I saw all these people working on things that,
you know, just seemed incredibly boring. And and what struck
me was not that they were credibly boring, It was just,

(01:10:50):
my god, how can you actually do that? Because I
realized that if you told me I had to work
on something and I didn't find interesting, I just physically
I couldn't do it. So I at least. I needed
a career where I was free to pick, uh, whatever
I wanted to work on, based on what I wanted
to work on. And you know, being I wasn't rich,
So being an academic was the best way to do that.

(01:11:11):
And that's the freedom that the job gives me. And
I've depended on that deeply in the years since. And
how did you end up at Stanford and how did
you end it up at Harvard? And what are the
differences between those two gigs and environments? So after I clerked,
I clerked for Posner first at the Seventh Circuit and
then Justice Scalia at the Supreme Court. I went back

(01:11:33):
to Chicago and I taught at Chicago for six years,
and then I came to Harvard to start the Center
for Internet and Society that was here. And then in
two thousand after I got married, Um, my wife is
really keen that we see California, so we went to Stanford.
I was there for nine, yeah, nine years, and then

(01:11:56):
I came back to Harvard in two thousand nine. So
they're very different environments. I mean, and Ford is like
Yale in the sense of being small and very intimate,
although of course at the time two thousand and two
thousand nine, it was filled with people obsessed with Silicon Valley.
At the heart of Silicon Valley, Harvard is huge, um,
which I find wonderful because what that means is that

(01:12:18):
there's always someone who is doing what you want to,
you know, be interested in. So there's always students who
are interested in the stuff you want to work on.
There's always professors who are working in the area you
want to work on. So it's, um, it's like a city.
It's like New York City compared to a village. But
you know, as long as you're comfortable in a city,
it's it's ideal. Going back to Scalia, you know, Republicans

(01:12:43):
idolized him, like the idolized Reagan, where those on the
left certainly are not in favorite decisions since he's deceased.
Was it hype? Was he really that intelligent? What's your take? Well,
I think we have to recognize Justice Scalia as a
justice from many years. So I guess he goes to

(01:13:03):
the coordin eight six or eighty seven. Um. And obviously
he dies in two thousand and sixteen, UM, so that's
a long career. UM. And UM, I think he was
a different justice at different stages of his career. So
what inspired me the most about him? You know, when
you apply, at least when I applied to be a clerk,

(01:13:24):
you you apply to everybody, and if you don't, you
don't get a job from anybody. So you're not allowed
to pick and choose based on you know, the philosophy
or the part of part partisan character of a particular judge. Um.
But I applied and he interviewed me quickly, and he
hired me quickly, um um. But what I admired about
him is that, you know, he was someone who was

(01:13:44):
who was deeply committed to um uh, to live out
his philosophy of originalism and textualism. And there were a
number of cases, number of times when there was a
case where the conservative thing to do is not necessarily
the originalist thing to do. And in every one of
those cases I would say that he was immediately convinced

(01:14:07):
of the originalist thing. But in every one of those cases,
he was eventually brought around to doing the originalist thing,
even though it was against his otherwise conservative politics. Um.
And so I was impressed that at that stage of
his career, at least the principle of the um that
he was advancing, he allowed to constrain himself. UM. And

(01:14:28):
part of you know that was he's just trying to
work it out. Part of it was his belief that
the principles were not UM didn't have a political valance
to them. Part of it was he hired liberal clerks.
I mean, I was a token liberal hired by Justice Scalia.
The other clerks were very conservative, you know, they were UM.
There was a deep skepticism about me early on, maybe

(01:14:49):
all the way through UM. Later in his career he
stopped hiring liberals. I asked him once why. He said, well,
you know, I figured everything out. I don't need anybody
to argue with anymore, so you know I don't. I
didn't spend my career studying the work of Justice Scalia,
so I don't feel like I'm an expert in the
late Scalia or the Scalia circus two thousand ten. But

(01:15:11):
the Scalia I knew was someone that UM I didn't
agree with, and you know, vast majority of cases. But
he's certainly someone I respected for for what he was doing.
And how did you go from being a young Republican
to the other end of the spectrum you know, in
one sense, I don't think I've changed, because I'm still
libertarian in the sense that I think society's objectives should

(01:15:33):
be to give people the widest scope for liberty that
they can. But what I what changed was recognizing how
much society needed to contribute to that project. So creating
the conditions within which liberty can exist becomes an extraordinarily
part of what society has to do and what government
has to do for that. So that means creating conditions,

(01:15:56):
including conditions of equality, um and. So the more you
focus on how do you create those conditions, what education,
what protection for rights, what enablement of opportunities? Um. You know,
it was obviously the Democratic Party that was more concerned
about those issues than the Republicans, certainly the Republicans today
um and and going forward. You know, I think one

(01:16:19):
of the most interesting debates that came out of this
recent Democratic primary was Andrew Yang's push for universal basic
income um and. One way to understand the push for
universal basic income is again related to this idea of
enabling people to have the most meaningful liberty that they

(01:16:40):
can have. There's a really great book called um Bullshit Jobs,
which is a which is a wonderful account of um.
How you know, up tot of us have jobs that
we think of as bullshit jobs, by which he means
is defined to mean a job which is doing no
good for you or for anybody else in the world.

(01:17:00):
You just start doing it, but you can't imagine how
it's helping anybody. And it's not that other people think
it's not helping anybody, you know, like I might think
that UM parking ticket person is not helping anybody. It's
that you yourself don't think that you're helping anybody, that
you don't think the world is any better off because
of that. I think about, you know, the luxury of
having a life for every morning I get up and
I think I'm going to work on exactly what I

(01:17:22):
want to work on, compared to somebody next to me
who was doing a job where they're thinking this is
just contributing nothing to the world. That contrast, I think,
I think is going to be increasingly important as we think,
how do we build a world where more people have
the freedom to have jobs where they feel like they're
actually contributing something. They're doing something, they're doing something is
meaningful at least to them. And what Andrew Yang was

(01:17:45):
talking about was something that would create the conditions for
making that possible. Like ub I would make it so,
you know, you would have enough to live and then
you could pick a job. Maybe you wouldn't be able
to work forty hours a week on that job, you know,
only couple hours a week, whether it's you know, being
a h an artist or um, you know, building things
in the forest, whatever. But the point is you could

(01:18:07):
be living in a way that was meaningful to you.
And I think that would be extraordinary if we set
that as an objective for society. How will we make
it so everybody wakes up every morning with the same
feeling that I do, that this is what they're doing,
what they want to be doing, and they have a
chance to do it. And you know, in a certain sense,
I think that's libertarian. That's about making sure society provides

(01:18:30):
two people that opportunity for liberty, even though there's a
hugely important role for the states, and creating the conditions
for that liberty. And you say you have the ability
to choose your projects at Harvard. What are you working
on right now? Well, about a dozen years ago, I
announced I was going to give up my work on
Internet and copyrights to take up the project of um

(01:18:54):
addressing what I was calling that institutional corruption. But basically
this corruption of institutions like government meant um and UM.
You know, my obsession was trying to find a way
to get a democracy that would be responsive um to
the public, as opposed to responsive to the special interests
the funders of campaign. So that's the project I've been
working on for the last twelve years and um uh

(01:19:18):
and it's the project I'll be working on two we
get it done at least for the next ten years.
That's kind of I've set you know, seventy is a
point where I want to step aside um. But uh so,
what I'm working on right now are projects that are
trying to elevate and make salient these reforms, democratic reforms.
And so we've got a bunch of things related to

(01:19:39):
this election to try to tee this issue up. Got
a bunch of projects related to the electoral college, which
we hope, you know, we'll follow this election and give
a real opportunity for reform of the electoral college. And
my real hope is that if Drew Biden is elected
and Mitch McConnell, the dark Lord of the Senate, is

(01:20:03):
returned to Kentucky. That there's a chance that Congress will
pass fundamental democratic reform in the first hundred days. Joe
Biden has promised they will do it. Nancy Pelosi has
already passed that reform in the House last year, and
she's committed to passing it if she has a majority
in the House again. Chuck Schumer has promised to pass

(01:20:23):
it in the Senate if he has a majority in
the Senate. So we have a real chance for this
reform to be enacted. And if it's enacted, I think
it will be the most important thing that this administration
could do. So I'm eager to continue to push to
try to make sure that that happens. So, for those
who are not following as closely as you are, what
would be the elements of that push. Well, in um,

(01:20:50):
Nancy Pelosi passed something called the called HR one, And
what was significant about that title is that it signaled
that this needed to be the first thing that would
be done, and that recognized that nothing else was possible
until you passed this reform. And this reform includes, most
importantly changing away congressional campaigns are funded. You know, right now,

(01:21:14):
members of Congress spend anywhere between thirty and seventy percent
of their time raising money, spending their time on the
phone calling donors, and their donors are not the average American.
Their dontors sort of the tiniest fraction of the one spent.
So they spend, you know, some people most of their
time sucking up to this tiny, tiny fraction of the

(01:21:34):
one percent to get the money they need to run
their campaigns or to get their party back into power.
That is a deeply corrupting experience. And so the most
important thing I think HR one would do was to
create a different way of funding campaigns UM that would
liberate them from that project, and by liberating them, give
them a chance to think about what their constituents want

(01:21:54):
or what's in the interest of the country as opposed
to what the funders of campaigns wants. That's number one.
Number two, it would end partisan gerrymandering of congressional districts
in the states. Number three, it would restore the Voting
Rights Act so that states cannot exercise their power to
suppress the votes. UM. It's of you know, it's targeted
African Americans. But the main reason I think for this

(01:22:15):
suppression is just partisan, Like Republicans want to make it
harder for Democrats to vote, and where Democrats have that opportunity,
they want to do the same thing too. But the
point is it's a corrupting inequality on the basis of
partisan um power that we've got to end. And h
R one would go a long way to that. And
then it did a bunch of other things related to
ethics and government automatic voter registration things just to make

(01:22:37):
the democratic process work better. And um, And I think
that if we passed that bill, um maybe a little
bit better than that bill, more aggressive in the changing
the way campaigns are funded. UM, then there would be
an extraordinary opportunity to get a democracy that cared more
about what people want than it cared about what the
lobbyists or the funders of campaigns want. And sketching in

(01:23:01):
the painting a little bit more, how would campaigns be funded?
So HR one has two ideas. UM. It's real emphasis
is on a matching fund system. So this is the
way New York City funds most of its campaigns. So
matching fund system says if you give a small amount
that gets matched up to UM six to one UM

(01:23:24):
by the government, so that small contributions are much more valuable.
And the theory is candidates would then be looking for
more small contributions, which means they would be more responsive
to people who are giving small contributions than to the
small number of people who give large contributions. Now, the
other idea, which is the part that I think is
really exciting and has enormous potential. Something that city of

(01:23:45):
Seattle has adopted is something called vouchers. So give every
give every voter a voucher. Think of it as a
packet of coupons that they can use to give to
candidates to help them fund their campaigns. So, if you're
a candida running for office, which you know is every
single voter in your district has a hundred dollars in
their pocket that they can give you to help fund

(01:24:06):
your campaigns, and so you'll be raising money from ordinary people,
not from the tiny fraction of the one percent to
fund campaigns now. And if you do that, raise money
from those people, um, then you're responsive to those people.
And I think that has the enormous potential to change
the sensibilities of Congress to make them more focused on

(01:24:27):
what ordinary people care about as opposed to these big funders.
And and I think that would be the absolutely most
important change that could that could be done. And so
um um, Now, in this last presidential election, um, you know,
we had there was an enormous focus on democracy reform.
Every single major candidate, including by the end um Joe

(01:24:48):
Biden on the Democratic side and uh Bill Weld on
the Republican side, promised within the first hundred days to
pass fundamental democratic reform. And and in the Democratic side,
people like Andrew Yang and Kirston gilla Brand and uh
Um Bernie Sanders endorsed the idea of vouchers. Kirston jilla

(01:25:09):
Brand wanted to give people up to six hundred dollars
and vouchers two hundred dollars for every federal race, so
two underrellars for Congress, two underrellars for the Senate, to
andolls for the president. Andrew Young said a hundred dollars.
Bernie was never clear about how much money he was
talking about. But they all recognized that if you could
make it so that ordinary people were funding campaigns, you
would have a Congress more focused on what ordinary people

(01:25:31):
cared about, not on the you know, the billionaires than
millionaires who are funding through their packs or their large contributions.
Now this all sounds great on the surface, but as
someone who has seen multiple election cycles, I'm reminded of
the famous George Carlin routine, who says, you can vote
if it makes you feel good, But the owners of

(01:25:52):
the country are not going to give up power. They
are really going to control. And I look at UH.
You know, Bernie Sanders, who certainly spoke to the public
and eased all his money from individual contributions, as opposed
to Biden, as opposed to Commona who ultimately couldn't raise
that much money. It's hard to have confidence. The theory
sounds good, but especially UH, taxes have been denigrated to

(01:26:15):
the point where everyone thinks taxes are bad, even people
on the left. It's hard to believe as a result
of income inequality opportunities in education. You're also talking earlier
about long form discussion of problems and issues. I certainly
grew up in the sixties when public schools had enough
money to educate people how to think, they were not

(01:26:37):
teaching to the test. And is the system inherently broken
or will these brand aids fix it, or is there
an elite The funny thing, of course, the elite to
a great degrees on the left, people who are worked
very hard and educated themselves to gain power, who have
contempt for those who work with their hands or in
service positions. Are these really solvable choose under the present system,

(01:27:02):
they are solvable. And I think the kind of changes
that I was just describing, for example, if you gave
if you followed Kirston jeweler Brand's proposal and you gave
everybody six two hundred dollars for federal race, that's not
a band aid. That would be a fundamental change and
how Washington works now. I think it's a really important

(01:27:24):
question whether the Democrats will carry through. You know, many skeptical,
cynical people said that Nancy Pelosi was able to pass
h R one with every single Democrat voting for it
because they all knew Mitch mcconnough would kill it in
the Senate, so it never was going to get passed.
And the same people say that if the Democrats take

(01:27:46):
control of the Senate and they have control of the
House and they have the presidency, don't expect reform to
pass because then all the money in the world will
be against reform passing and they will stop the Democrats
from passing it. And I think that's a fair challenge,
and it's up to us to make them do it.
It's up to us to say, you know, we have

(01:28:09):
finally come to the point where the vast majority of
Americans realize if we don't fix this corrupted, broken political system,
nothing happens. Nothing happens. You know, you mentioned at the
opening that I tried to run for president and UH
my campaign in UH was expressly focused, exclusively focused on

(01:28:32):
passing fundamental reform UM, and it was almost impossible to
be able to run that campaign. Um, you know, this
complicated game that they played to change the rules to
keep me off the debate stage, partly because the issue
was not salient four years ago. But now every single
candidate endorsed this idea of fundamental reform in the first

(01:28:52):
hundred days of the administration. So I think the Democrats
UM have said they will do it. I think there's
a chance we get enough Democrats in Congress to actually
do it, and then we've got to hold their feet
to the fire. And if they don't do it, then
God help them, there will be a revolution, and I
will be in the barracks in the streets doing everything

(01:29:14):
I can to drive it because we can't get anything
done in this country until we fix this problem. There's
no climate change legislation that will pass until we fix
this corrupted, broken system. There's no healthcare reform that doesn't
benefit pharmaceutical companies or the insurance companies until we fix
this corrupted, broken political system. Finally, people get that. And

(01:29:37):
now the question is whether the Democrats will carry through
if in fact they're able to stop this president from
stealing the next election. Let's just assume election day happens
and the ultimate result is up for grabs, the obvious
example being the year two thousand. Many people believe in

(01:29:59):
the year two thousands, despite having David Boy's on the
Gore team, that they were outmaneuvered by the Republican attorneys.
If it's a jump ball, what should the Democrats do
legally to ensure that they have the best chance of
things coming out their way. There's so many issues. Who

(01:30:20):
knows what the issues might ultimately be, but certainly there's
issues of postmarks on absentee ballots, whether the ballots are
filled out correctly. Uh then we certainly have people in
charge of elections and states making unilateral decisions. And one
can argue in previous situations the Democrats are the opposing team.
The Democrats have been on their heels in this situation. Well,

(01:30:44):
it's absolutely true that this is going to be an
incredibly complex election. I'm teaching a seminar in the fall
called war gaming, which tries to map out all the
things that can go wrong, all the places where the
system can get can be played. So, you know, so
if I were to advise the Democrats on what's the

(01:31:06):
one thing they need to be doing in twenty twenty
that they didn't do in two thousand, they need to
assume the other side is not going to play fair.
And I'm not saying that's going to happen, but I
think one striking thing about two thousand was that so
many times the Democrats were just astonished with what the Democrats,

(01:31:26):
what the Republicans did. I mean, even the core argument
that actually in the end one the argument about the
equal Protection clause um controlling or regulating how votes would
be recounted. When that argument was made, people on the
less of this is just crazy talk. There's no way
such an argument could work. Um. But of course it
did work, and the Republicans were willing to do almost anything, um,

(01:31:48):
including remember the kind of Brooks brother riots um in
Florida where you had these people who had been literally
bust in, who were pretending to be Florida voters pounding
on the doors demanding that they're hanging Chad Ballance be
not countered or whatever depending on the district, um. You know.
And I think the Democrats were caught off guard because
they just couldn't imagine that that kind of behavior would

(01:32:10):
be engaged in. Well, I think now people are being
woken up to recognize that this president will not stop
at anything. Literally, he's got everything to lose, you know,
not just the election, but given what we know about
the you know, criminal charges that are against his organization
and his company, given what we know about the fiscal library,

(01:32:32):
financial liability he faces to like Deutsche Bang, incredible amount
of money outstanding. Um. You can just see that he
imagines that if he doesn't win, it's not just the election,
it's also his whole empire collapses. And when you've got
somebody against the wall and they know that everything disappears,
that they don't win, They're going to do whatever they can.

(01:32:55):
And I'm genuinely terrified about whether our legal system is
kabowle of adjudicating when one side is so is operating
in such bad faith. Um, I just don't know, you know,
we haven't seen good evidence that the court system will
stand up to this so far, and and what's to
say that they will stand up, you know, against it

(01:33:16):
in the context of that election, And and as I
said at the very beginning, if that happens, I don't
know what happens. You know, George Floyd brought out, Um,
I think it was something like seven percent of America,
it might have been seventeen at some number around there
who turned out to a protest because of because of

(01:33:36):
that event. You know, take that multiplied by three or four,
and you have a country destabilizing event. I don't know
what the country is like if people, Um, if there
is an election which is stolen and people react in
the way that I expect they will react given the
fury that this man has triggered across the country. Now,

(01:33:59):
you obviously have a singular high profile yourself, but to
what degree are you integrated with the d n C
or Kamala or Joe. Is that something where you have
interaction with them? Is the lines open or you on
your own separate island. Well, I give advice on UM

(01:34:20):
reform issues to anybody who wants it, and I've given
advice to a wide range of people, including people involved
in these campaigns, so I will continue to do that.
I'm not inside the campaign in the sense of running anything,
and I don't expect to be UM although you know
my view is Joe Biden needs to become the president
and I will do whatever it takes to make every

(01:34:41):
whatever it takes that my father would approve of, to
make sure that that happens. Larry, this has been unbelievable.
We could go on for hours, but we're gonna wear
our ears out and those of the audience. But this
has been incredibly edifying, especially to those people who don't
follow the law on a week by week basis or
even a year by your business. Thanks so much for
doing this. Thank you for having me. Until next time.

(01:35:04):
This is Bob Left, says m

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