Lawrence Lessig

Opinion contributor

In its first act next January, the new House is scheduled to take up the most important civil rights bill in half a century. The bill signals a profoundly comprehensive understanding of the flaws that have evolved within our democracy. That it is scheduled first screams a recognition that these flaws must be fixed first, if we’re to have a Congress that is free to do the other critically important work that Congress must do. But that the bill is all but invisible to anyone outside the beltway signals the most important gap left in this most important fight to make representative democracy in America possible — if not again, then finally.

The bill — denominated H.R. 1 — is a radically comprehensive and practical fix to all but one of the critical failures of our evolved system of representative democracy. Crafted primarily by Representative John Sarbanes (D-MD), the bill recognizes that there are multiple flaws within our democracy and that these flaws must be addressed together.

H.R. 1 would establish, for the first time in American history, a system to fund congressional campaigns through small-dollar matching funds; thus would it liberate members of Congress from dependence on large private funders. The bill would brilliantly leverage Congress’s constitutional authority to force states to end partisan gerrymandering by adopting nonpartisan redistricting commissions — an obviously better solution than anything the Supreme Court could ever craft. It would trigger the automatic registration of voters nationally. It would restore the Voting Rights Act, and secure critical protections to assure an equal freedom to vote, by encouraging early voting and modernization of voting technology. And the bill would impose strict new regulations on Congress itself, slowing the revolving door and strengthening conflict of interest rules, to keep legislators focused on their constituents, not distracted by their own personal interest. (Left untouched is the fundamental distortion produced by the winner-take-all system for allocating electors in the electoral college, though until there is judicial recognition of the equal protection flaws within that system, Congress could well believe it lacks the power to step in.)

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Yet more important than the substance is the primacy. By putting reform first, the Democrats have declared openly what so many have for so long denied — that we must fix Congress first if we’re to have a Congress that is free to lead. H.R. 1 is a bill of impeachment against the old ways of Congress, and a practical plan to change those old ways. In his first campaign for President, Barack Obama had warned that “if we don’t take up that fight, then real change — change that will make a lasting difference in the lives of ordinary Americans — will keep getting blocked by the defenders of the status quo.” In H.R. 1, the Democrats “take up that fight” — finally.

Yet as extraordinary as this bill is, it is all but invisible to most Americans. No doubt, given the anti-reformer who leads the Senate, Kentucky Senator Mitch McConnell, H.R. 1 will not become law. But there is plenty that won’t pass Congress that gets wildly more attention than this. And understanding just why the best idea in democratic reform merits so little public attention is critical if we’re ever to achieve even part of this package of change.

It’s not because America does not desperately want it: The frustration of Americans with their government is at an all-time high. As a massive study conducted at the University of Maryland found in the lead-up to the 2016 election, that frustration is tied directly to an overwhelming and cross-partisan sense that our Congress works for special interests, not America, and that citizens are second only to the lobbyists.

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Nor is it because the new members of Congress don’t see this issue as critical or primary. A hundred and seven candidates in the 2018 election wrote soon-to-be-Speaker Pelosi, and demanded that reform be a priority of the new Congress. The most forceful and compelling new progressives, including Alexandria Ocasio-Cortez, have been disciplined to acknowledge that the changes they demand need reform first. And indeed, a leading progressive incumbent in Congress, Ro Khanna (D-CA), introduced legislation last week that would reform the funding of congressional campaigns even more fundamentally than H.R. 1, by following examples like Seattle to give every voter vouchers that they can use to help candidates fund campaigns.

Instead, what the obscurity reveals is that fundamental reform needs a president — one who has made a credible commitment to enact reform and an election that shows that America agrees. No one expects President Trump to take up his pledge to “drain the swamp.” But what’s striking about the Democrats now vying to be the next nominee is that none have made reform even significant, let alone a priority. Last month, Bernie Sanders listed a ten-point agenda to guide the first hundred days of the next administration. Not a single item on that list even hints at reform.

Obama told us we must “take up that fight.” He never did. His administration never even proposed anything close to the reforms now within the scope of H.R. 1.

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That, in the end, may be the most important silence in this story. America has come to expect that its politicians will promise change, yet change nothing. So rather than playing Charlie Brown to Lucy’s promise to hold the ball, we ignore reform talk, and fantasize instead about promises that could never be enacted so long as our Congress remains so deeply compromised — whether a Green New Deal, single-payer health care, or the antitrust legislation that could get us a growing economy again.

There is no more important priority for the next president than fixing our broken Congress — because nothing important (save tax cuts to the rich) can pass this compromised Congress until it is fixed. Speaker Pelosi deserves enormous credit for acknowledging that point so clearly.

Yet we will never rally the political force this change needs without the kind of presidential leadership that would make it all but impossible for Congress and the public to ignore. That leadership will come not from candidates who forget reform, or who make reform just one idea among many. It will come from candidates who make reform fundamental and believable, by making fixing this democracy their first priority as well.

Lawrence Lessig is Roy L. Furman Professor of Law and Leadership at Harvard Law School, and founder of EqualCitizens.US and author of "America Compromised." Follow him on Twitter: @lessig