S6E7: The Legislature Decides

Foreign. This is Larry Lessig. On February 8, 2024, two weeks before the Secretary of State would announce that the initiative we had been working for would be on the ballot in November, the legislature in Maine held a hearing to decide whether it itself, which has passed the initiative, thereby avoiding any ballot question to appear in November, or whether it would just pass it to the people to allow the people to vote for it in November. And as we prepare for that hearing, I was frankly torn about which strategy made the most sense. On the one hand, having the legislature just pass it would make this whole fight much easier, because we'd have an initiative.

We could then start the process of

assuring that it was constitutional, and that process could move forward immediately, rather than waiting until November, when we then would begin after the initiative was challenged by some outside group.

But on the other hand, having the

state of Maine, in its beautiful purple hue, stand up and overwhelmingly support the initiative would give the initiative some momentum. It would make credible something that I think is absolutely true, which is that the corruption of money is not a partisan issue in America, that both sides feel it and are angry about it, and both sides want it addressed. So I was actually open to whatever the legislative committee decided to do, and I was eager to hear their questions to get a sense of what they would want to do, but what they needed for the hearing was some argument about why this was important and especially important to Maine. And in the work that we had been doing, I had come across an extraordinary volunteer who had first inspired me at a conference I'd seen her speak at in Los Angeles, hosted by Represent Us. This undergraduate, Maya Cook, had spoken extensively about her work with American Promise and about what she had learned about the fight to overcome super PACs through the constitutional amendment process. And she was brilliant and articulate and eager to do whatever she could to help advance this fight. And so I invited her to help us put together the numbers that would demonstrate to the Maine legislature why this was an important fight. The numbers to show why there were so many large contributors and how we could see that as creating an improper dependence on those contributors in the state of Maine. Now, it's not a simple question to put that together. It takes a lot of statistical sophistication to put it together in a convincing way, even to manipulate the data, to manage the data, to begin to put it into a form that could be summarized and easily made compelling. But she took the project on and was eager to do it well, but it turned out to be extremely hard to do it as well as it needed to be done because it just took a lot of careful articulation and correcting and everything else that you do when you begin to put a data project together. And so I offered to drive her up to the hearing. She had to come from New Haven and after completing the report, but she worked through the night before the hearing, working all night to put together a beautiful report summarizing the empirical findings she had made about the influence of large contributions to support independent expenditures. And after pulling an all nighter, she climbed onto a train and I picked her up at the train station and we drove to Maine most of the time with her sleeping on the side,

trying to catch up from the sleep

she had lost the night before. And we arrived in Augusta and went to the beautiful Maine Capitol and went up to the room where the testimony would be, which was a relatively small room. But what's so incredibly powerful about state legislatures is the way state legislators do their job. I saw this in New Hampshire when I had done work around ranked choice voting in New Hampshire, legislators in states, small states, especially states like New Hampshire, I'd seen the same in Vermont, and here it was in Maine, they actually do the work. So I had once seen a hearing in New Hampshire where there were 15 representatives who sat and listened to four hours of testimony about ranked choice voting. Not on their phones, not reading the newspaper, focused intensely, all of them sitting there watching the arguments and listening and engaging. And that's what we saw in Maine as well. These legislators who were prepared and informed and eager to ask questions, doing the work. Anybody who's been to Washington knows that's not how legislators work in Washington. You have a committee hearing, there might be one or two members of that committee who show up. They pop in, they pop out, all of them show up. If a movie star is there or some important famous person, but if that person's not there, they disappear. And so you have people making testimony that they've spent hours and hours preparing, like Mia Cook had done, talking basically to an empty room. I'd once been asked by Bernie Sanders to come down and testify. This is before he ran for president, about an incredibly innovative idea he had to deal with patent policy as it affected drugs that were not generally available. And there was a beautiful committee room. Bernie was the only representative Congress senator in the room. And there was a staff that was basically making sure that the recordings were working. And there was a gaggle of people who were going to be testifying, but we were all testifying to Bernie Sanders, who didn't need to be convinced of

the brilliance of Bernie Sanders legislation.

That's not the way it is in the states. It's one of the great things about state legislatures. Here in this small hearing room, there was a committee that was composed of a mix between Republicans and Democrats who are trying to address the question whether they should allow this initiative to appear on the ballot or whether they would just pass the initiative on their own. So Kara McCormick testified, as the leader of the ballot question committee, asking them to pass the initiative, and if they wouldn't at least pass it, to allow it to be on the ballot, they didn't have a chance to stop that, but they at least could endorse the idea of it being on the ballot.

Some of the students from her kids

high school and her kids themselves testified about why this issue was extremely important to them. How the large contributions inside of campaigns made it impossible for our government to address the issues that were most important to the next generation. Because it turns out Gen Z doesn't have a super pac. Mia testified, using the extraordinary report she had produced, answering questions about where the money came from and how the money was spent, and how much of it came from the very few number who were supporting the various candidates that there were inside the state. Adam Cote, who had been one of the lawyers who helped draft the initiative, testified about the initiative. We got a lot of great questions. Some of the questions, in a typical political way, tried to bring out hypocrisy that they thought might be involved in a campaign like this. So one legislator asked, was our campaign consistent with the initiative that we were trying to pass? And the reason he asked that is that we had a lot of large contributors who had contributed to this initiative. And so those large contributors contributed more than the initiative would allow people to contribute to campaigns after it passed. But importantly, our initiative only applied to contributions to affect the election of candidates. It expressly exempted ballot question committee. So our committee was perfectly. Or the ballot question committee here was perfectly consistent with, with the initiative they were trying to get passed. And it also exempts party committees, not because that's certainly a good idea, but because it's not necessary in the context of this first effort to limit outside money, when the real question is whether the effort to limit outside money itself is constitutional. So we had a lot of great questions. And one line of questions that is particularly important to highlight and to make understandable. That line of questions was about whether they should be supporting an initiative that had so much support from people outside the state of Maine. Now, this is a really important and difficult question. There was a pretty ugly history recently in Maine about gun safety regulation, which outside organizations had come in and stood up and funded in a big way, didn't have a lot of native Maine support, and it failed. And one of the reasons it failed was that Mainers felt there was something wrong in this idea being pushed on Maine by people from outside Maine. And that reality is important and valid to recognize, because it is true that in a federal system where states have their different concerns, it isn't right for one state to try to push their values on another. And it wouldn't be right for a bunch of billionaires to try to stand up an initiative to force something down the throat of Mainers that wasn't authentic to Maine. Now, I had thought about this a lot. I thought about it the first time we talked about bringing this initiative to Maine. And for me, it felt like the answer to the question was this outsider's pushing an idea on Maine that Maine itself didn't like. Seemed like an easy question to answer, because for me, the whole of the experience I had had in Maine for the last 20 years, all but one time, I've traveled to Maine. I've traveled to Maine for the purpose of addressing democracy reform questions. I'd been invited again and again by the public Funding commission in Maine, by organizations in Maine that were trying to bring democracy reform about, by TEDxS in Maine that were trying to get me to talk about the importance of campaign finance and the critical need to increase. Improve the representativeness of our government. In my view, Maine was a state deeply devoted to the project of trying to make our democracy work better. So for me, I had no problem at all believing that in trying to stand up this initiative, we were standing up an initiative that Mainers themselves would like the chance to at least vote upon and to confirm that view. Early in the process, we had run

a poll in Maine to determine whether the Mainers actually supported this initiative. When we ran that poll, I told my team that if the results were not overwhelmingly in favor of the initiative,

if they were not absolutely, certainly clearly in favor of the initiative, we were not going to have anything to do with it. Because if Mainers themselves didn't want the initiative, or at least didn't, according to this poll, want the initiative, it wasn't for us to force them to accept it or at least give them the chance to even vote for it.

So we ran a poll in September of 2023, and that poll, first of all asked the question whether they were going to support the initiative that eventually

passed with 86%, the initiative to limit foreign money in main elections. And 74% said they would vote to limit foreign money.

14% said they wouldn't, 12% said they were not sure. Well, the ultimate result was 86%, meaning that 12% moved to the 74% to get us to get them. 86%. And of that ultimate 86% in the poll, we found 68% strongly supported the

initiative that was going to eventually lead

to the end of foreign money in Maine elections. And then we asked them about Super PACs, and we asked them whether they would support limiting super PACs in Maine. And essentially exactly the same percentage said that they strongly supported ending Super PACs in Maine. Indeed, 72% said they strongly supported it, 6% said that they somewhat supported it, 16% said they somewhat opposed or strongly opposed it, and 6% said they were not sure. So that means going into this race, we were confident that 78% supported the idea of limiting super PACs in Maine. And, and we asked the question, what do you think politicians are most responsive to large super PAC donors or their constituents? 81% believed that politicians were responsive to the super pac donors, not to their constituents. And so going into this, I was

convinced that Mainers supported this idea of limiting super PACs, which in my view, justified the the effort to stand up an initiative that would give them the opportunity to vote one way or the other. And so that's what we had achieved by this hearing in February 2024. And yet the skepticism of some remained. In an exchange I had with one

of the most prominent and interesting senators in the main Senate, Jeff Timberlake, who comes from Senate District 17, expressed this skepticism most directly to me.

He had looked through the online filings that had been made around the initiative, and he was convinced that the only people who had given money to support the initiative were people from out of the state of Maine. Now, that was mistaken because he had looked at the filing from equal citizens. He hadn't looked at the filing from the ballot question committee, citizens to end super PACs, which had many, many contributions from Mainers to support this initiative. So he just looked at the wrong report, but it triggered in him this idea that the whole support for this initiative was support from out of the state. And did the people inside of the state of Maine really support the idea of this initiative? And more importantly, this was the part that really got me. It was like he said, I want to know what they want. What do they want? This is the cynicism of American politics. And I'm not saying it's not justified. You know, when the Koch brothers in 2010 said that they would primary any Republican who even acknowledged the truth of climate change, it was a fair question. What do they want? What were they going to gain from that? And I'll tell you what they gained from that. By slowing environmental regulation, they increased the profit for the Coke industries. So there was a reason to be cynical, because what they were trying to accomplish, slowing climate change regulation, meant more money for them. And if you looked at the wide range of contexts in which people spend their money to affect policy, to affect politics, to elect representatives, or to get ballot initiatives passed overwhelmingly, I think you'd see that that money was spent in a way that would ultimately benefit the spender. I've already talked about the most egregious example of that, in my view, people who give money to the Republican Party. To get the Republican Party to cut back on the money, the IRS has to enforce existing rules against high net worth taxpayers to get the high net worth taxpayers to pay the tax that they are obligated under the law to pay. And the reason it makes sense for them to give the Republican Party money to do that is because they know that the money they give to the party is less than the money they would have to pay in taxes. So it's a good deal for them. And so Senator Timberlake's skepticism about the outsiders who were supporting this initiative in Maine was totally, completely ordinarily justified. What would they get from this for themselves? So I went up to him and I said, you know, you asked those questions. I just want to make clear one points that I think we shouldn't lose perspective of these people, these super wealthy people, some billionaires who had spent their money to tee up the question whether Super PACs could be regulated, they had spent their money to help get that question on the balance, to give Mainers the chance to say yes, hell yes, we want to end super PACs, the people who spent that money to do that. We're spending their money to reduce their own political power. Because if we won, when we win, they will have less political power. I've often dreamed about doing an ad where it's just kind of like talking heads, but it's like interspersed talking heads of all of these billionaires who basically say, I'm spending my money so that I have as much power in this political system and as you do, meaning we all have the same vote. And that's the power we all have. Now I'm not so naive to believe that, you know, movie stars or super wealthy people won't always be more powerful than the rest of us. I mean, I'm not talking about purely equal egalitarian realities here. Nobody could imagine that being true. But you don't have to imagine perfect equality to recognize the corruption in the dependence of this deeply unequal system we have right now. And that's what they got to. So throughout my experience raising money from these people who have stepped up to support this, these are people who are saying, I am spending my money to reduce my own political impact. They're the rare case of the billionaire saying, give me less. This political system gives me more. I say give me less. Don't give me the power to veto climate change legislation for a generation as super pacs gave the Koch brothers. Don't give me that power. I'll make arguments about the policies I think are important, and maybe you'll be able to read those arguments more easily because I'm prominent or a movie star or whatever, but those will just be arguments. And no political candidate will be dependent on my money coming into their campaign and therefore bending over backwards to make themselves pleasant to me. This is rare. There are very few contexts in American society today where you see people voluntarily trying to give up their power because they think it's for the common good to give up their power. You know, those of us in the Democratic Party look at President Biden and think that's a clear example. But whether you like Biden or not, you can agree with me, can't you, that this is not the way things happen. The people don't get power to give it away. And when they get power, they do whatever they can to keep it. Let me end this episode with a story I've told before, told in my first book on the subject, Republic Lost. It's a story about a guy named Arnold Hyatt, the person to whom I dedicated that book, who in 1996 was one of the largest contributors to the Democratic Party. And he was the largest contributor because he had given money to a whole bunch of campaigns, maxed out to a whole bunch of campaigns. And the candidates in all of those campaigns were candidates who promised to take up the cause, to pass public funding to end the corrupting influence of money in American politics way back in 1996, long before super PACs. And so after the 96 election, Clinton was reelected. Bill Clinton decided to have a dinner for the largest contributors to the Democratic Party. So they gathered at the Mayflower hotel, and about 20 or so of them sat around a table, and one by one, they stood up and they told

the president what they thought the president

should do in his second administration. This was long before the word Monica Lewinsky became central to the politics in the Clinton administration. So they all had their views, and they went around and they said them. And finally, at the end, Arnold Hyatt stood up and he said, Mr. President, I know you're an admirer of Franklin Delano Roosevelt, so I want you to put yourself in Roosevelt's shoes the end of the 1930s, when he realized he needed to convince a reluctant nation to wage a war to save democracy. Because he said, Mr. President, you too are have to convince a reluctant nation to wage a war to save democracy. Not a war against Nazis, but a war against fat cats. People like us, people who think just because we've given a lot of money to a political party, we have a right to sit around a table and tell the president what he should do. People who believe they have the right because they have the wealth in society. He said, that idea is destroying American democracy, and you have to build the movement to fight back against it. The only published account we have of that evening says that after he spoke, the room was completely silent as all of the fat cats around the table were embarrassed that they had just been called out by fellow fat cat Arnie Hyatt. And then the president stood up, and he proceeded, according to the published accounts, to rip Arnold Hyatt to shreds. We didn't come to power to give it away, he said. We now have a chance to leverage the power. We have to do what we want, and that's what we're going to do. That's the normal way of politics. That's what always happens. That's exactly why we see so little change. That's exactly the fight we have to change. I am so enormously grateful to those who have supported this movement, both small and big, but especially big, because the reality is, if you or I give $100 or $1,000 and this campaign wins, we get more. We get a politics that's responsive to us. But the billionaires who give the money to support this campaign, if we win, when we win, they have less. They will have a political system where the candidates are not dependent on them in the way they are dependent on them today. They will have a political system where they can't just decide whether which issues will not be issues and then stifle debate around those issues, because everybody knows if they talk about those issues, that's the end. They will not be funded or they will be primaried. They know that things they care the most about they can't force into American politics even if they think that's a great idea. They know the world will be different and yet they stand up to support this movement, to remove their power because they believe. I hope they believe in democracy.

Stay tuned for the next episode where

we'll talk about the campaign and where it is and where it's going and how you can help. This is Larry Lessig. Still these episodes are produced by Equal Citizens, particularly Josh Elstrow and Elstro Productions, which are fantastic team to make sure they are presented to you in a way that's at least tolerable to hear, given the quality of the performer. We've been asking you to go to citizenstendsuperpacs.org and support them however you can, if you're from Maine, support them by volunteering to support the campaign whether you're from Maine or not, by supporting through funding small dollar contributions or large $5 or $500 million. It's up to you. I'm not going to judge you either way. And if we can get that support to tell this story to Mainers, to get them to see that what they already believe, they now have a chance to make real. We will win this fight in Maine. And when we win this fight in Maine, I commit to you, we will do everything possible to win this fight in the Supreme Court. The next episode will show you how. Stay tuned. Thanks for listening.

Sa.