Lessig Goes To New Hampshire

This podcast is part of the Democracy Group.

This is Larry Lessig. This is a special episode of the podcast. Another Way. For the past couple weeks, we've been waiting, waiting for the Senate to get around to addressing finally the most important democracy reform package Congress has considered, maybe forever. S1 as the pundits and commentators have recognized, this bill, this crucial bill to the future of our democracy and also to the future of the party, has been stuck because a couple senators on the Democratic side have both had questions about its scope and questions about whether the filibuster can be evaded. Now, the filibuster, of course, is the critical barrier or hurdle to get over, as I've described in another talk, which, which we will make available in this podcast as well. We should recognize the way the filibuster has evolved into being something that is literally unrecognizable to our framers as a rule for governing, how the majoritarian body of the Senate should function, and even to those who crafted the traditional filibuster that was the life of the senate until the 21st century. But we should focus on the hopeful reality that's before us right now, that within the next week, I believe there will be a bill that the Senate will vote on that has within it every key element to HR1, the for the People Act. It will have a voting rights provision, it will have a gerrymandering provision, and it will have, at least for the House, support for small dollar public funding of elections. This will be a critical reform if it can get past the Senate, or more precisely, if it can get past the filibuster. Now, I've been troubled recently by the talk around the filibuster. I've been troubled by the willingness of those on our side to speak as if the filibuster, the modern filibuster, the filibuster with its current practice, is in fact consistent with representative democracy. When I was asked to speak at the New Durham's Peaches and Politics picnic this last Saturday, I wanted to talk about this threat to democracy, and the Democrats need to step up and take on that threat. And I utter in this speech words that are sacrilegious on our side of the aisle. I utter the words of love for our president and tough love for our president as well, because it is a critical moment for our president to stand up and defend democracy. And I fear he is motivated too much, either by the practical recognition of the limits of what he can do, given the Senate as it's constituted. With Joe Manchin And Senator Sinema, resisting efforts to reform the filibuster, or because he genuinely longs for, is nostalgic about the happy times in our past when white men in the Senate could get along even though they had different party names next to their own name. Regardless of the reason, it is time for Democrats to stand up for the principle of democracy. And that principle should say that an institution as backwards and as corrupted as the modern filibuster should have no place in the United States Senate or in our democracy. So in this talk, I make that case. This is recorded at the event. Not the best quality, but we can live with a little bit of noise. It's not that long, but I hope you will share it if you agree with it, because I'll hope you join us in this fight, this press, to make this the central fight of the Democratic Party. It's at least alliterative. The Democrats should be fighting for democracy. They should fight for, for fixing democracy. First, I hope you enjoy the talk.

Thank you, Holly. And thank you so much for inviting me to come talk to you a little bit about where we think we will get with democratic reform in Washington. But I want to start with a subject I know many of you are very familiar with. A hero of this state. I want to remind you of the woman, Granny D. Yes. So if you've not heard of Granny D. Granny D was living in Keene, and she went out to California at the age of 88 and began a walk that took 15 months across the whole of the United States, arriving in Washington, D.C. at the age of 90, surrounded by a bunch of congressmen who had met her about a mile outside the city and walked the last mile with her into the city. And she was an inspiration for many, leading some to believe that campaign finance reform was possible. And Congress shortly thereafter passed the last major bipartisan campaign Reform act, the McCain Feingold act, which the Supreme Court has subsequently completely decimated. But the thing about Granny D is, though many wondered whether she was a bit quaint. I never met her, though she did guest blog on my blog when she ran for Senate. But a little bit quaint and maybe a little bit crazy. The thing we should remember is that she was right. She was right to believe that until we address the fundamental corruption of our political system through money, we weren't going to get anything. We weren't going to get any of the reforms or changes or democratic policies that the vast majority of Americans want because money could block it. And the second thing to recognize about Granny D is that however Bad things were when she did her walk. They are infinitely worse today. When Granny D crossed the country, there were no super PACs. When Granny D crossed the country, there was not a political party whose leaders were openly talking about techniques to suppress the Democratic vote. When Granny D crossed the country, we had not yet seen the magic of big data gerrymandering that made it possible for state legislatures to invert the representation in Congress for their state, making it so the minority controlled the majority in their state. And when Granny D crossed the country, there was not a political party whose leaders are openly talking about legislation to give state legislatures the power to reverse the vote of their people in presidential elections. However bad it was in 1998, it is infinitely worse today. Now, as a Democrat, I am extremely proud that my party is working as hard as it can to pass the most important Democratic reform package that I think this nation has seen, maybe forever the most ambitious package of reform, HR1, the for the people Act. And that act was born in part on a walk that John Sarbanes, Congressman John Sarbanes, with Carol Shea Porter did in honor of Granny D in the middle of the winter in January about seven years ago, when we talked about exactly the scope of what that reform had to be. And he was inspired to push that through. And he convinced the extraordinary Nancy Pelosi to make this the most important thing she would accomplish. And she has now twice succeeded in getting the House of Representatives to pass that bill completely. And now Chuck Schumer is committed to doing the same in the United States Senate. And of course, Joe Biden has promised to sign the bill if it gets to his desk. And I am extremely optimistic today because I spoke yesterday to leaders in Capitol Hill. I am extremely optimistic today that next week we will see a bill that the Senate could pass that a majority in the Senate support that has every bit of the critical elements of HR1. It will include voting rights reform. It will include gerrymandering reform. It will include, for the first time in American history, a small dollar public funding for at least Representatives in the House. It will be everything Congress must do. And a majority of our Congress will support passing it. But, you know, that doesn't mean it will pass. I spend a lot of time talking to people who are involved in Democratic reform movements across the country, and they're always puzzled by this. They say, wait a minute. You've got a bill that a majority of your Congress supports and your President would sign, but you don't think it will pass? What. How does that work? And of Course, we know a word that's a little bit confusing to many people around the world. We know the institution of the filibuster is the reason it won't pass. And so familiar are we with the idea of the filibuster. It's easy for people to believe that in some sense the filibuster is our tradition. That maybe even it was the framers idea that the Senate would have the power to block legislation that the majority of the Senate and the Congress support. But that is a complete fabrication. The modern filibuster has nothing to do with the traditional filibuster. And the traditional filibuster has nothing to do with what the framers of our Constitution intended. The first Senate had a rule that expressly said that if the majority were wanted to vote on a bill, they could move to a vote at any time. No minority had the power to stop the vote on a bill. And that's because our framers were majoritarian. They believed that democracy worked only if it was majoritarian. And they knew that because before our Constitution, the actual first Constitution, the Articles of Confederation, was not majoritarian. The artists of confederation required super majorities to pass most important legislation. And that Constitution was a complete failure. The framers had to tear it up and enact the Constitution we live under right now. That embeds majoritarianism throughout the system. And for the first 50 years of the Republic, that's the system we had. But then John C. Calhoun and a slave loving senator from South Carolina began mucking about with the rules of the Senate and slowly evolved techniques for slowing the consideration of bills in the Senate. Not stopping it, but just slowing it. And he defended that by saying it gave people a chance to deliberate. And so he began to make it possible for the Senate to slow passage, not to block it. And that beginning proto filibuster eventually matured into what I want to call the traditional filibuster. And here's how the traditional filibuster worked. Number one. Rarely the Senate would decide that a bill needed a super majority to pass. Or at least so long as number two senators stood on the floor of the Senate and debated. Those two were really important. Lyndon Johnson faced the filibuster twice in his presidency.

Twice.

Because the norm was you don't do this unless it's a really important issue. And of course to the Southerners, blocking civil rights legislation was a really important issue. Indeed, in the whole history of the filibuster, between reconstruction in 1967, the only bills ever stopped by the filibuster were civil rights bills, mainly anti lynching legislation. But the tradition was rarely would it be invoked. And it could only be used if you were willing to stand up and talk. Okay, that filibuster has nothing to do with the current filibuster. The current filibuster. All you've got to do is pull out your phone as a senator and text your leader and say, I want to filibuster this bill. And that changes the bill from one which presumptively takes a majority to pass to one which takes 60 votes to pass. Not if you stand up and debate. Nobody's going to stand up and do anything. It just changes the rule effectively. So that the only way that bill passes is if 60 senators support it. So let's think practically about what that means. If you need 60 senators to pass a bill and Mitch McConnell has made it clear every single important bill, he is going to invoke this procedure. 60 senators to pass it, that means 41 senators can block any legislation. So let's take the smallest 21 states that Donald Trump won by at least 10 points or more, some by 35 points, but the smallest 21 states. Those 21 states would give you 42 senators. So those 21 states, the most extreme far right states in America, would have enough senators to block anything in the United States Senate. And those 21 states would represent 21% of America. So we have evolved a system of so called democracy where people representing 1/5 of our population have a veto over anything our Congress does. One fifth. And so what does that mean? It means Congress will never pass climate change legislation so long as this filibuster is the rule. Congress will never pass changes to the minimum wage so long as this filibuster is the rule. Congress will never address health care in a progressive way so long as this filibuster is the rule. Congress will never do anything that a majority of America wants it to do because one fifth of America doesn't want it to happen. Now, we in our party love to love our president and I love our President. I think he is the perfect anecdote to the craziness of the last four years. But there's love and there's tough love. And I think we need to be willing to openly say to our extraordinary president, he is mistaken in not being willing to take on the filibuster. He is mistaken in not willing to stand up and say we have to defend democracy, not the tradition of the United States Senate. He is mistaken because this system can't survive if 20% gets to veto anything we want to do. We need to recognize there is a concerted anti democratic party at the center of American politics. A party that's open about its desire to suppress the democratic vote. A party that's open about its desire to gerrymander, to manufacture its own majority. A party that's open about its willingness to to reverse the public vote on a presidential election to make sure their candidate wins. And a party that supports a filibuster that means that 20%, 21% can block what the rest of the nation would want. That is an anti democratic movement. And the question is, how do you respond to an anti Democratic Movement? 80 years ago in Europe, when one anti democratic movement was sweeping through Europe, there were two leaders who had a very different kind of response. Neville Chamberlain and Franklin Roosevelt. Both of them knew their nation didn't want to gear up to fight to save democracy. And Neville Chamberlain embraced that reality and he focused on how to appease the enemy because he believed eventually they would see the light. Eventually they'd come around to the right. Eventually they would be the free, democratic, liberty loving people that the German people had been so much before that period. Franklin Roosevelt was not confused about the threat democracy faced, and he waged a campaign to convince a reluctant nation that it needed to stand up and defend democracy. Now there's nobody in America the equivalent of Adolf Hitler. There's nobody in America that needs to fear the way Jews needed to fear in Europe. I'm not trying to make that equivalence, but here's what I am saying is equivalent. There is an equivalence in the threat to democracy that we face right now. And we need to build a movement willing to stand up and say, hell no, we believe in democracy and we will defend it. And so I am so happy to come here a place that has, in different ways for both parties. John McCain in his great run here in 2000, and Doris Haddock and how many others who have been marching for democracy ever since. I'm so glad to come here and to say to you, you have an extraordinary chance here to help us save democracy. Because the fight that we have to focus is one that should unite Americans. I've not met a single ordinary Republican who is not a leader in that party, not a politician who's willing to defend what their party is doing. Not a single one. Because the truth is they don't defend turning over democracy. They don't defend the idea that the minority should prevail. They are majoritarian as much as anybody. But they are in a system that doesn't allow them to say that, and we could unite a majority to that purpose. So you have an exaggerated role. Thank God, because I love that the people of New Hampshire. But you have an exaggerated role in our political process. Please use it to help the politicians to see this is the fight we must win. And if you help them to see that, there will be enough of them in the next cycle who are willing to stand up and say, this is the thing. We have to fix democracy first, not by smiling and being happy. In our reminiscence, romantic reminiscence about a happier time when white men in the Senate could get along even though they had different parties. That nostalgia is done. We have to face the fact that we are facing a threat as fundamental as any we've ever faced. And we have to join the movement of so many over the last 70 years who have been fighting for equal rights in our political process and join with them to make it finally real. Thank you so much.

That was the talk in the beautiful New Durham, New Hampshire. I'm grateful for the chance to speak and for the energy that so many people, especially in New Hampshire, have devoted to this cause of fixing our democracy. First, from Granny D on. Stay tuned for more. Stay tuned especially for updates about where we are on this fight to pass HR1 or S1 the for the people Act. You know, we think, you know, I think, you know, everybody in this organization, Equal Citizens, believes this is the most critical bill to get passed. Not because this is the most important issue, but because nothing else will happen unless we find a way to fix this. And if we find a way to fix this, that means we will have found a way to get through the filibuster. And that too is critical. These podcasts are produced by citizens us. You can find us on the web at Equal Citizens Us anotherway. Please share the podcast and if you have ideas or other questions you think we should be addressing, there's a place there you can give us your feedback. And we're grateful for the feedback. I especially. This is Larry Lessig. Thanks for listening.