October 1, 2014 · Lessig · Reblogged from

This week, tens of thousands of Hong Kong residents turned out to protest China’s plan for bringing democracy to that city. Rather than letting voters pick the candidates that get to run for chief executive, Beijing wants the candidates selected by a 1,200 person “nominating committee.” Critics charge the committee will be “dominated by a pro-Beijing business and political elite.” “We want genuine universal suffrage,” Martin Lee, founding chairman of Hong Kong’s Democratic Party demanded, “not democracy with Chinese characteristics.”

But there’s not much particularly Chinese in the Hong Kong design, unless Boss Tweed was an ancient Chinese prophet. Tweed famously quipped, “I don’t care who does the electing, so long as I get to do the nominating.” Beijing’s proposal is just Tweedism updated: a multi-stage election, with a biased filter at the first stage.

The pattern has been common in America’s democracy too. Across the Old South, the Democratic Primary was limited to “whites only.” That bias produced a democracy responsive to whites — only. The battle for equal rights was a fight to remove that illegitimate bias, and give African Americans an equal say in their government.

Today there’s no “white primary.” Today, there’s a “green primary.” To run in any election, primary or general, candidates must raise extraordinary sums, privately. Yet they raise that money not from all of us. They raise it from a tiny, tiny few. In the last non-presidential election, only about .05 percent of America gave the maximum contribution to even one congressional candidate in either the primary or general election; .01 percent gave $10,000 or more; and in 2012, 132 Americans gave 60 percent of the superPAC money spent. This is the biased filter in the first stage of our American democracy.

This bias has consequences. Of course, we don’t have a democracy “dominated by a pro-Beijing business and political elite.” But as a massive empirical study by Princeton’s Martin Gilens and Benjamin I. Page published just last month shows, remove the word “pro-Beijing,” and the charge translates pretty well.

America’s government is demonstrably responsive to the “economic elite and organized business interests,” Gilens and Page found, while “the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.” Boss Tweed would have been impressed.

The “green primary” isn’t a formal bar to election. But it is certainly an effective bar. There isn’t a single political analyst in America today who doesn’t look first to whether a candidate for Congress has the necessary financial support of the relevant funders. That money isn’t enough, and it certainly doesn’t guarantee victory. (Only 94 percent of candidates with more money win.) But no candidate ignores the money, or is ignorant of the views of the tiny fraction of the 1 percent that provides it. That’s not perfect control, but it turns out to be control enough to weaken the ability of ordinary Americans to have something other than a “non-significant impact upon public policy.”

The surprise in the Hong Kong plan is not that it fits Boss Tweed’s mold. The surprise is the reaction of her students, and now people. To imagine a proportionate number of Americans — 5 million — striking against our own version of Tweedism is to imagine the first steps of a revolution. But in America, we don’t protest our “democracy with Chinese characteristics.” In America, we have accepted it as as American as apple pie.

At least for now. There is no doubt that because of the way we fund campaigns, the “economic elite” — what conservatives call “the cronies” and progressives “corporate power” — have hijacked American democracy. And as frustration and anger about that truth grows, that elite will become as the whites of an apartheid regime: identified as the cause of a dying democracy, and the target of angry demands for reform.

It is hard to see this just now, since so much of popular culture idolizes extraordinary wealth. But as economic growth in the middle class stalls, and as inequality soars, an enemy will be found. At least unless the more enlightened of that elite, from both the Left and the Right, stop screaming at voters through their superPACs, and step up to support the change that might weaken their power, but walk us back to a democracy.

Hong Kong’s students have started that struggle — for them, there. But their ideals are ours too, as is the flaw in the system they attack. We should be demanding the reform for which they are now fighting: an unbiased election, at every important stage. Or more simply: #EndTweedismEverywhere.

Lawrence Lessig is a professor of law at Harvard, and co-founder of Mayday.US.

(Original post on HuffPo)