Beyondelectoralcolleg_FEATURE_Main_Katherine Streeter (HLB Fall 2020)

How It All Adds Up

Lawrence Lessig discusses institutional threats to representative democracy

Credit: Katherine Streeter

With U.S. elections around the corner, the nation’s electoral institutions could face a significant test. In addition to novel challenges posed by the pandemic, or the possibility that a losing candidate might refuse to concede, Harvard Law School Professor Lawrence Lessig is focused on what he believes are a series of longstanding ills damaging American democracy.

In 2016, Lessig founded Equal Citizens, a nonprofit dedicated to realizing equal political power for all citizens. In 2019, he published “They Don’t Represent Us: Reclaiming Our Democracy,” a book arguing that American political institutions and the evolving architecture of media are undermining representative democracy. Lessig is also teaching a course this semester about how an 1800s-era law governing the Electoral College process could be gamed to sway the election.

Lessig recently spoke with the Bulletin about what he sees as the biggest problems facing U.S. democracy—from the Electoral College to gerrymandering to the campaign finance system—and what to do about them.

Harvard Law Bulletin: Do you have any special concerns about the voting process when it comes to the upcoming presidential election?

Lessig: The system for electing the president is extremely fragile—not just because of the Constitution and the complexities of the Electoral College, but also because of the statute that governs, in this case, the Electoral Count Act. The ECA was enacted after the election of 1876, and it basically regulates how Congress decides which slate of a state’s electors should count if a state provides Congress with more than one slate, which is what happened in 1876.

It’s a very complicated process with lots of uncertainty. For example, imagine a state votes Democratic. According to the law, a Democratic slate of electors goes up. But imagine the state’s governor is Republican and decides to certify the Republican slate of electors. Congress is supposed to decide which of the two slates counts, but if the Democrats in the House of Representatives and the Republicans in the Senate don’t agree, then the act seems to say the slate certified by the governor is the one that counts. There are about 10 of these scenarios where you could imagine people flipping the results. And I want to insist that either side could act in bad faith in the sense that the Democrats feel that they were cheated once, and they’ll do anything they can to avoid being cheated twice—perhaps including cheating.

The system works so long as both sides in the process are acting in good faith. But there are a lot of people who are very anxious that we’re going to see people abusing the system to try to produce a particular result, and the system won’t bear a lot of weight in trying to resist that abuse. We’ll see whether it can do it, but I think there’s a lot of reason to be very concerned about it.

You’ve previously suggested some specific reforms to the Electoral College, such as states adopting the National Popular Vote Interstate Compact—a legislative mechanism that could guarantee the Electoral College outcome mirrors the outcome of the popular vote. You also argued a case at the Supreme Court in May that resolved ambiguity about how the Electoral College operates. What’s the biggest problem, in your mind, with the Electoral College?

The biggest problem is the winner-take-all system, where 48 states have chosen to give all their electoral votes to the candidate who wins the most votes in the state. As a result, presidential campaigns only care about the swing states, and presidential policy bends to make the swing states happy, leaving the rest of the states behind.

At Equal Citizens, we’ve helped bring about four lawsuits—two in red states and two in blue states—in which the plaintiffs are basically saying the winner-take-all system violates their constitutional rights because it throws away their vote before it would matter in the ultimate choice of the president. If we win, a court could require states to allocate electoral votes proportionally, where a candidate who got 35% of the vote in, say, Montana, would get one of its three electoral votes. An even better solution would be to allocate electoral votes proportionally at a fractional level, where the candidate would get exactly 35% of Montana’s electoral votes—meaning 1.05 votes. But a court’s solution would still be better than what we have now, where only 10 states matter.

More broadly, what do you see as the biggest problems our democracy is facing?

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“Our representative democracy has evolved into a system that no longer affords us equal political rights.”

Our fundamental problem today is that our representative democracy has evolved into a system that no longer affords us equal political rights. Take, for example, our system of privately funding campaigns. It has led to congressional candidates and representatives spending anywhere between 30% and 70% of their time raising money. That disciplines them to be too sensitive to the interests of those who fund their campaigns and insufficiently sensitive to the interests of those who don’t fund their campaigns.

You can also think about the system of gerrymandering, in which states draw congressional district lines for the express purpose of giving some people more power than others. You can think about the Electoral College, which gives some states more power than other states. Or you can think about the techniques that are deployed in states to suppress votes, typically of people who are less likely to vote for the party in power within the state. In the South, that typically means Black people, whose power is suppressed through techniques like unequal access to ballots and systems of throwing people off the ballots. These systems are radically unequal in the way they give political power to citizens. When you add them all up, the consequence is we are in no sense equal citizens.

What should people be doing to make our democracy function better?

When it comes to our government, the most important thing is to get a government that commits to addressing these problems as the first thing that it does—so a Day 1 issue. Technically, [former Vice President Joe] Biden has done that: He has committed, as a first priority, to leading on a comprehensive set of reforms such as those in H.R. 1, a bill that addresses money in politics, gerrymandering and voter suppression all together. And [Speaker of the House] Nancy Pelosi has promised to pass H.R. 1 again, which the House first passed in 2019. And [Senate Minority Leader] Chuck Schumer [’74], if he becomes majority leader in the Senate, has promised to take up the issue. So there’s a chance it could happen.

And on the other side—the “us” side—we need to recognize just how poisonous it is to treat information like fast food. We shouldn’t be trying to do politics on Facebook or Twitter. We should be trying to understand these issues in contexts where we can reflect on them and be informed about them. Podcasts are a thousand times better than Facebook because somebody listens to an hourlong conversation there, and that triggers a human understanding that’s just not triggered when you imagine these snippets of hate coming across your news feed. We need to architect our political environment to make it feasible for humans to do politics well again.