Lawrence Lessig

August 31, 2015

There is an extraordinary number of Americans who feel passionately about Bernie Sanders. They should. As I wrote when I launched an exploratory campaign to be a “referendum president,”

Sanders is a rare hero among politicians. Throughout his career, he has been unwavering in his advocacy for the issues he believes in, however unpopular. There isn’t a triangulating bone in his body. And as people have come to know him and his history, they are inspired by a man who has stuck by his principles and whose principles are now more relevant and true than ever. The picture of 28,000 people showing up to a rally more than a year before an election is the picture of hope for a democracy.

And as I said in an essay one week later,

Bernie Sanders stands for something. He stands for something big. He has ignited an incredible movement — stronger and more committed at this point than Barack Obama had in 2007. He has given America a vision of how they can get America back.

None of this passion was expected by the pundits. But as someone who had seen Sanders perform long before this campaign — and as someone who is endlessly optimistic about America — none of this passion surprised me. Sanders is as great as his most loyal fans insist. He is the real deal in a town short on “real,” and filled with the worst kind of “deals.”

But then I said one more thing about the Sanders campaign, not as welcomed by the senator’s supporters: That while Sanders is running a campaign that could win, he is not running a campaign that would let him govern. He’s got a strategy that could get him across the finish line. He doesn’t yet have a strategy that will leave him in a place where he could get any of the extraordinary reforms that he is describing done.

The reason, I thought, was obvious, because it followed directly from what both Bernie and Elizabeth Warren have said again and again: the system is rigged. Not in the old fashioned criminal sense. But in a much more effective and modern political sense. We have concentrated political power in a tiny tiny number of political funders. Four hundred families have given 1/2 the money in this election cycle so far; less than .02% of America gave even the maximum amount to one candidate in the last election cycle generally. Change doesn’t happen in this so-called “democracy” unless those funders approve. Those funders are not going to approve the changes that Bernie Sanders wants.

Which means that the first thing the Sanders administration — or any administration — must do is to change the power of those funders. The first work of Congress must be to pass the reform that would make Congress less dependent on that tiny tiny few. If that work is not done, then none of the other reforms that Sanders is describing are even credible. And if this election is to be about achieving something beyond electing an inspiration, then Sanders must make the case for the most important change that this democracy needs. A change that would fix this democracy. First.

Yet in the words of Yogi Berra, it’s “deja vu all over again.” Rather than a campaign to show America what change must happen first, we’re watching reruns of the Obama show. For remember, early in his campaign, Barack Obama made the corrupt system of lobbyist-driven campaign funding a key focus of his campaign. Yet he too didn’t do the work to show America how or why this change would happen, first. From the beginning of his primary fight through the nomination, he told us again and again that unless we fixed our corrupt system, nothing real could be done. Remember his words:

(San Diego, May, 2007): [I]f we do not change our politics — if we do not fundamentally change the way Washington works — then the problems we’ve been talking about for the last generation will be the same ones that haunt us for generations to come. (San Diego, May 2007): But let me be clear — this isn’t just about ending the failed policies of the Bush years; it’s about ending the failed system in Washington that produces those policies. For far too long, through both Democratic and Republican administrations, Washington has allowed Wall Street to use lobbyists and campaign contributions to rig the system and get its way, no matter what it costs ordinary Americans. (Columbia, SC, January, 2008): We are up against the belief that it’s all right for lobbyists to dominate our government — that they are just part of the system in Washington. But we know that the undue influence of lobbyists is part of the problem, and this election is our chance to say that we’re not going to let them stand in our way anymore. (Indianapolis, April, 2008): [U]nless we’re willing to challenge the broken system in Washington, and stop letting lobbyists use their clout to get their way, nothing else is going to change. (Indianapolis, April, 2008): [T]he reason I’m running for President is to challenge that system. (Philadelphia, April 2008): If we’re not willing to 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.

Many took “up that fight.” Obama did not. In the 6+ years that Obama has been in office, he has not made a single proposal to change the way “campaign contributions … rig the system.” He has not taken a single step to get Congress to pass the reform that would allow “real change — change that will make a lasting difference in the lives of ordinary Americans” to not get “blocked by the defenders of the status quo.” The consequence is a Congress more dependent on money, which means a Congress more extremely partisan (since partisanship fuels fundraising fastest).

Sanders sees his mistake differently. Once he was elected with the largest grassroots political movement in history, Obama’s mistake, Sanders says, was that he sent his supporters home. “Thanks for getting me elected. I’ve got it from here.” Sanders promises he won’t make the same mistake. He’ll keep his army of passionate supporters. He’ll use them to pass the reforms he’s promising.

But that’s just not a fair description of what Obama actually tried. After his campaign, Obama organized his supporters into the largest grassroots organization supporting a President ever. Thirteen million Americans joined his army, Organizing For America, and they worked mightily to pass Obamacare.

Yet fairly soon on the administration learned the limits to grassroots lobbyists. Turns out they couldn’t overwhelm the power of the professional lobbyists. They could not get sane limits on guns. They could not pass climate change. There were no match for the Wall Street lobbyists who diluted financial reform. They couldn’t get a health care bill with — as Obama promised — a public option, or without — as Obama promised — a hundred billion dollar gift to pharmaceutical companies. Obama’s army was huge. Obama’s army was passionate. Obama’s army was not enough.

We must learn something from this history. Finally. We won’t beat the lobbyists at their own game. We must instead change the game. First. Americans will rally to support the election of a great leader. But America can’t move to Washington; it can’t be a perpetual monitor; it can’t study every amendment to every major bill. What America needs is a Congress it can trust. And it will only get that Congress when Congress is freed from its cronies.

Obama’s mistake was not that he sent his supporters home. His mistake was that he didn’t turn them on the most fundamental problem. First. What he needed to make good on his extraordinarily ambitious agenda was a Congress not dependent on the very interests that were threatened by the changes he wanted to make. What he needed was a Congress free to lead.

We cannot make this mistake — again. We cannot let this election ignore the elephant in the room — again. The system is rigged. And no matter how inspiring or angry or stubborn or passionate the next president is, if he or she doesn’t make fixing democracy the first priority, then as Obama told us, “nothing else is going to change.” If we don’t end this corruption, then “the problems we’ve been talking about for the last generation will be the same ones that haunt us for generations to come.” “If we’re not willing to 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.”

It takes real courage to “take up that fight.” It takes real leadership to do it in a way that could win. Not just the election, but also the chance to actually govern.

There are few with this courage. Even fewer brave enough to be that leader. It’s not a criticism of Sanders to say he’s not that leader now — because he, maybe he alone, could be. And if he were, there is a real chance he could get us what Obama did not: a representative democracy, finally capable of solving America’s problems, sensibly.