Larry Lessig, articulate and impassioned, keeps at the task he has set himself in arguing the case for political reform. It has led him to experiment: as in setting up a Super PAC, which is not what a campaign finance reformer would be expected to do. Now he is on to something new, considering a run as a Referendum President who would bid for a mandate for political reform and then, if successful, serve only as long as needed to bring the reform about. Then power would pass to the Vice President and he, Lessig, would depart the stage.

This “referendum” candidacy is also a reform proposal, a call to evaluate on exceptional criteria the merits of a Presidential campaign and the performance of a President. It can be considered separately from the soundness of the specific measures that, as President, he would press Congress to adopt on campaign finance, voting rights and redistricting. The question the candidacy raises is how he proposes to campaign for those measures, and what sort of Presidency he is arguing for, and one has to assume that he is promising a candidacy, then a Presidency, that meets fundamental expectations for a better, reformed politics. It would take the voters seriously, engaging them in a substantive exchange on the merits of this way of thinking about the election of a President.

Lessig argues his case on the basis of history and on the particular impact of the political reforms he would make the centerpiece of his campaign. In one video release, he presents the case of Eugene McCarthy, contending that without McCarthy’s challenge to Lyndon Johnson in the Democratic primary, the issue of the war in Vietnam would have been “invisible”—“the one issue”, but for the McCarthy candidacy, “that no one [would have] wanted to talk about.” He means to suggest that the same fate could be waiting for campaign finance and other political reforms in this election—unless there comes to pass a reform candidacy like his own.

This is a puzzling statement. Can it really be said that in 1967 and 1968, the Vietnam War was the “one issue no one wanted to talk about”? As McCarthy pointed out in his announcement, thousands of American lives had been lost, ten and more times as many Vietnamese civilian casualties, and the United States was spending $2 to $3 billion a month on the war effort. McCarthy was recruited by a fiery anti-war movement in his own party. There was no chance that in the election of 1968, the war would have been “invisible.”

Professor Lessig also argues that the enactment of political reforms would clear the way for major public policy questions to be successfully addressed. He contends that campaign funding explains stalemate on issues like student debt or climate change. A Presidency committed to political reforms, and that would end with their enactment, is justified by the wide impact that just these reforms would have on sound governance.

The social science literature does not support him on this point; and neither do specific case studies. See, e.g. Michael Graetz and Ian Ayres, Death by a Thousand Cuts (2005).   There is a difference between emphasizing campaign funding as a public policy concern, and overstating what the reforms he proposes will accomplish. At a minimum, Lessig might say with specificity how progress on these other issues will depend on campaign funding reform, and what shape a post-reform legislative resolution would take. It seems not enough to say that all will be well with these reforms, without answering the question: how?  Of course, if Professor Lessig did elaborate on his views on sound policy—if he did go to the details—then his candidacy would move from a “referendum” to a regular candidacy.

Perhaps a source of the difficulty here is Lessig’s pivot on ultimate aim of these political reforms. At one point he was speaking in the language of “corruption,” and very concentrated on this theme. Then, inspired by the equality theorists like Rick Hasen, he has come to believe that the principal objection has to be unequal citizenship, or political inequality. The choice of one or the other “theory of the case” is consequential.

For if you argue corruption, then you believe that the interests of campaign funders fundamentally dominate the system, and campaign finance reform gives good policy a fighting chance. How things will turn out when the effects of money is neutralized may be unknowable. But if it is the key to all things, then reform of this stripe must lead to improvement across-the-board.

On the equality theory, the claim is that reform is necessary to counter the anti-democratic effects of campaign funding controlled by a few. Those effects, in the aggregate, are complex. They affect the quality of campaigns and the pool of candidates willing or able to wage them. They cannot be discounted in assessing the course of legislation and policy, even if the range and nature of the effects are open to question.   The public may not rank political inequality of this kind at the top of their list of concerns, but they care, and it weakens confidence in government, particularly when it is not performing to their satisfaction and there is a fear that it must be the result of a “rigged” system.

This all seems a good enough case for political reform and it can be presented impressively, as Hasen has done in various writings and as Professor Lessig did in some respects in his book Republic Lost. It is less clearly sufficient to win the day for a “referendum” candidacy that oversells these reforms and suggests that failing to give them priority will cause them to be “invisible.”

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