In this turbulent midterm election year, two academics decided to practice what they preached. They left the classroom, confronted the reality of down-and-dirty politics, and tried to replace moneyed interests with the public interest.
Neither was successful – this year, at least – but on this week’s show, Bill talks with them about their experiences and the hard-fought lessons learned about the state of American democracy.
Lawrence Lessig, who teaches law at Harvard, is a well-known Internet activist and campaign finance reform advocate. This election cycle, he started a crowd-funded SuperPAC aimed at reducing the influence of money in politics. Lessig tells Bill: “Our democracy is flat lined. Because when you can show clearly there’s no relationship between what the average voter cares about, only if it happens to coincide with what the economic elite care about, you’ve shown that we don’t have a democracy anymore.”
Zephyr Teachout, a professor of constitutional and property law at Fordham Law School, ran against New York State Governor Andrew Cuomo in the Democratic primary. She received more than a third of the vote and carried 30 of the state’s 62 counties, surprising everyone – including Cuomo. “When you talk about the corruption in Congress, people are talking about the same thing that Madison was talking about. This sense that our public servants are just serving themselves,” Teachout tells Bill.
BILL MOYERS: Welcome. What happens when two college professors leave the theories of the classroom behind for the real world of bare-knuckle politics? Well, they learn a lesson the hard way. Just ask Zephyr Teachout and Larry Lessig. Each is an outstanding scholar. She teaches constitutional and property law at Fordham Law School here in New York, and recently published this highly acclaimed book, “Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United.” Larry Lessig teaches law at Harvard and directs that university’s Edmond J. Safra Center for Ethics. Both champion free and fair competition in our economy and our elections. Zephyr Teachout ran for governor of New York in the Democratic primary against incumbent and friend of Wall Street, Andrew Cuomo.
ZEPHYR TEACHOUT in campaign ad: My name is Zephyr Teachout and I’m running in the Democratic primary for the governor of the state of New York.
BILL MOYERS: A political unknown with no money, she surprised just about everyone, including Cuomo, by getting more than a third of the votes. A good showing, given that he spent $60.62 for each of his votes while she could only spend $1.57, but, nonetheless, still a defeat. Larry Lessig decided to fight fire with fire. He raised several million dollars for a super PAC called Mayday and backed congressional candidates who favor reducing the influence of money in politics over those who just can’t get enough of that sweet campaign cash. If he could prove that people care enough about corruption to have it make the difference when they vote, it might become politically toxic for politicians to oppose reform. But Lessig lost, too. His six picks in truly competitive races went down to defeat. So Larry Lessig and Zephyr Teachout are back in class, for now. But ring the bell. Word has it they have only begun to fight. Welcome to both of you.
BILL MOYERS: Welcome to both of you.
LAWRENCE LESSIG: Thanks for having us.
ZEPHYR TEACHOUT: Yeah.
BILL MOYERS: So you tried nobly to challenge the system from inside and it didn’t work out for either of you. Was it naïve?
ZEPHYR TEACHOUT: No. I actually think we got a lot done. I mean, I’d love to be governor right now. I would love to have won. But we showed that people out there, there’s a sleeping giant out there of people who actually want a true, responsive democracy.
BILL MOYERS: But your money didn’t wake that giant up.
LAWRENCE LESSIG: Well, you know, I mean, the critics have been gloating of course. They call me an egghead, they say it’s a complete failure. Look, they’re right about me being an egghead. There’s no doubt about that. But it wasn’t a failure in the sense that the data we have shows that people care about this issue. Zephyr’s campaign I think showed that. But in the races that we were in, we moved people to care about this issue and to vote on the basis of this issue. Now of course, not enough to overcome the tsunami of Republican victories. Obviously, we were not able to overcome that. But that’s not what we were pushing against. We were pushing against a view expressed in “Politico.” The view was: This is a quote, “zero issue.” It doesn’t move voters at all. And that’s just not true. We think it moves voters more than issues that I think of as fundamental, like, climate change or unions. This is an issue that really rallies people because they are so tired of the corruption of the system.
BILL MOYERS: So what did you learn new about money that you hadn’t known in your long and thorough examination of corruption in America?
ZEPHYR TEACHOUT: I knew that candidates have to spent half their time or more fundraising. And I knew how corrupting that was. What I didn’t realize is how, in some ways, humiliating it is.
BILL MOYERS: Yeah.
ZEPHYR TEACHOUT: That you feel like a vacuum cleaner salesman or something. You’re sitting in a room with your fundraiser, making dial after dial. You’re supposed to dial 30 times an hour. You’re supposed to hit a quarter of your calls. And if people are sort of dispirited with the leadership we have now, I think it’s in part because we’re selecting leaders based on who is good at sitting in that room, being a vacuum cleaner salesman as opposed to traditional understandings of leadership, which is who has real ideas about how to change things, who has special capacities for inspiration or management.
BILL MOYERS: What did you learn about money you didn’t know?
LAWRENCE LESSIG: Well, I think that one thing we saw is how fearful the powerful are—
ZEPHYR TEACHOUT: Yeah.
LAWRENCE LESSIG: —to stand up against the system. And in one of our races we were running against the chairman of the Energy Committee and—
BILL MOYERS: A Republican.
LAWRENCE LESSIG: A Republican. And once he knew we were running, he started reaching out to our top donors and saying, “What’s going on?” And our top donors were like, “What are you doing? We’re gonna be—”
BILL MOYERS: Calling you? They called you—
LAWRENCE LESSIG: No. Well, they didn’t actually directly call me, but we knew indirectly that they were anxious about what had happened.
BILL MOYERS: I remember reading this story, this is a Silicon Valley high-tech tycoon. Did I hear you say that when he got word that you were taking on Fred Upton, who oversees the committee that has jurisdiction over his company, he got nervous?
LAWRENCE LESSIG: Well, there’s a couple stories here. One is that people who actually contributed got nervous. They were anxious to quickly distance themself from our attack on Fred Upton. But just before all of that happened, we had a very large donor who was willing to give us a very large amount of money. And then heard that we were gonna take on Fred Upton and said, “We can’t be on the wrong side of Fred Upton.” So we have this system where people are afraid, even the richest are afraid to step up against this power because they know the way in which the power is going to—
ZEPHYR TEACHOUT: And I think, I actually think we have a lot of fear in our politics now in ways that people sense. You know, there— a lot of people didn’t come out to vote in this midterm election. And I think it’s hard to vote for somebody who feels fearful. I started seeing fear in Andrew Cuomo’s eyes.
And I don’t think it was just of me or of a challenger, but a sense— sometimes I feel like it’s a sense that politicians know that they aren’t really in control, that their donors are. And that’s a scary feeling, that lack of power.
And I think, you know, you see somebody like Elizabeth Warren or others who speak fearlessly, and there’s genuine excitement around that. Too often I think Democrats just focus on, like, the message box, what is the correct message to say, as opposed to really engaging in leadership itself and the fearlessness that’s required there.
LAWRENCE LESSIG: The— and the other thing that I learned, you know, I went into this thinking we were gonna have to turn to a lot of big funders to raise the money that we needed to actually run this campaign. And then we opened up this crowdfunding site. And more than 50,000 people reached into their checkbook to make it possible for us to run this campaign.
And this was a number that I just had no idea we would ever reach. And I think if you inspire people, the way I think Zephyr plainly did in her campaign, with this ideal they rally. Lots of people rally to this idea.
BILL MOYERS: Do you think that elections run by and for donors, give voters a false sense of power? False sense of control over our democratic process?
ZEPHYR TEACHOUT: I think that in the last decade or so, I mean, really since the early ’90s, there’s been a real shift to candidates focusing and serving donors. And if you have to spend half your day talking to donors, you’re 70 percent of your day talking to donors, and then turn around and give a speech engaging people on the issues that matter to them, their, you know, dental care, credit cards, you know, the real difficulty finding a job, it feels false. Because it’s hard to have those two conversations at the same time. And gradually, I think people have gotten more and more disillusioned because they feel like they aren’t being served. They’re being sort of spoken to superficially, but fundamentally not listened to. And I don’t blame them—
BILL MOYERS: Not democratic then?
ZEPHYR TEACHOUT: It’s not democratic. Yeah—
BILL MOYERS: And if elections are not democratic, can we get anything else right? Or is it just all cosmetic?
LAWRENCE LESSIG: Well, we’ve got to make it democratic first—
ZEPHYR TEACHOUT: Well, yeah.
LAWRENCE LESSIG: —I mean that’s—
BILL MOYERS: But it’s not. You both have said it’s not. It’s a donor-driven election.
ZEPHYR TEACHOUT: Yes.
LAWRENCE LESSIG: Yeah.
ZEPHYR TEACHOUT: Yes.
LAWRENCE LESSIG: I mean, we have the data to show this now. There was a Princeton study by Martin Gilens and Ben Page. The largest empirical study of actual policy decisions by our government in the history of our government. And what they did is they related our actual decisions to what the economic elite care about, what the organized interest groups care about, and what the average voter cares about.
And when they look at the economic elite, you know, as the percentage of economic elite who support an idea goes up, the probability of it passing goes up. As the organized interests care about something more and more, the probability of it passing goes up. But as the average voter cares about something, it has no effect at all, statistically no effect at all on the probability of it passing. If we can go from zero percent of the average voters caring about something to 100 percent and it doesn’t change the probability of it actually being enacted. And when you look at those numbers, that graph, this flat line, that flat line is a metaphor for our democracy. Our democracy is flat lined. Because when you can show clearly there’s no relationship between what the average voter cares about, only if it happens to coincide with what the economic elite care about, you’ve shown that we don’t have a democracy anymore.
ZEPHYR TEACHOUT: And we don’t. But we have still these forms that allow for access to power. I mean, I look and I’m really inspired by what’s happening in Hong Kong. Those young students would do so much to have the access to the levers of power that we have now. So I think of it more like where we were in 1901 or 1902, where we had formal access to power, but, you know, if you and I were talking then, we’d be just as dispirited. You know, the big trusts really ran politics. I bet if there was a Princeton study of 1901—
LAWRENCE LESSIG: Of course.
ZEPHYR TEACHOUT: You’d find a flat-line relationship between what people wanted and what was happening. And yet, what you saw is this, you know, decades-long populist effort, finally finding fruit in the Tillman Act, the 1907 law, which banned direct corporate contributions to campaigns. And so I find hope actually from history, because we’ve had this disconnect between democracy and our formal rules before.
BILL MOYERS: Why is it we are failing? You as scholars and activists, we as journalists, in helping people understand that much of what happens to them is the consequence of how our elections are funded. Because many of the people that you care about voted against you a week ago.
LAWRENCE LESSIG: Well, I don’t think the people are confused about whether democracy is working for them. I think they understand the problem. What we’ve got to do is to give them a sense that there’s a solution. We’ve gotta prove that there’s a way to fix this problem. And that’s what, you know, lots of different efforts are trying to do. Trying to give people a practical sense that there’s something they can do.
You know, when we marched in— across New Hampshire, and we would meet people on the street. There was such deep passion for finding a way to finally get back control of our government. There was no argument that we had to have with them to prove, “Look, here’s a Princeton study that shows that—” they got the Princeton study—
BILL MOYERS: They got it, huh?
LAWRENCE LESSIG: —before the Princeton study was written.
BILL MOYERS: They were the Princeton study.
LAWRENCE LESSIG: And so it’s just giving them hope. Give them a sense that there is something to do. And when we give people a map, a way to understand how it’s possible. You know, we could fix 80 percent of this problem tomorrow with one statute that would establish a different way to fund campaigns. We don’t have to change the constitution to do that—
BILL MOYERS: What do you mean? You could do it without a constitutional amendment?
LAWRENCE LESSIG: We could pass—
ZEPHYR TEACHOUT: Yeah, yeah.
LAWRENCE LESSIG: —small-dollar, public-funding of elections, even with this Supreme Court tomorrow.
BILL MOYERS: What does that mean?
LAWRENCE LESSIG: Well, it means, for example, John Sarbanes has something called the Government by the People Act. And that act says small contributions, like in New York City, small contributions get matched by the government, in Sarbanes’ case, up to nine to one. Or Republicans have begun to push the idea of vouchers. Give every voter a voucher, which they can use to fund campaigns.
Now, the point is, both of those are perfectly constitutional. They could be passed tomorrow and they would radically change the focus candidates now give to the tiny fraction of the one percent who fund their campaigns because they’d be much more interested in talking to the many thousand who they need to fund their campaigns.
ZEPHYR TEACHOUT: And, I mean, Larry and I really share this belief that we need to communicate the solution. Because, I mean, I’ll tell you, in New York City, we have a system like this. And it has transformed— look, we don’t have a perfect government. But it has—
BILL MOYERS: It overwhelms you. Let’s be honest. I mean, we do. I’ve been a supporter of public financing in this city for a long time. But it doesn’t work. Where big money comes rolling in, as Larry said, like a tsunami.
ZEPHYR TEACHOUT: But what it has done is we have, you know, as a feminist, public financing is a real feminist issue. Far more women are running for office under public financing systems ’cause they don’t— you don’t need access to the old boy’s club, the old power club. Far more people of color are running for office.
In fact, the city council is now a majority, people of color in New York City, because you don’t need access to the same old boys club. I’m not saying it’s fixed every problem. But it changes. If I want to recruit people to run, which I do, if you walk up to them and say, “I want you to go out there and do this incredibly difficult, harrowing, exciting thing,” and if you show that you have grassroots support, you’ll have enough money to get heard.
That’s entirely different than, “I want you to go out there and do this exciting, harrowing thing. And half of your day, you have to spend begging at the feet of oligarchs and asking them for their permission to run for office.”
BILL MOYERS: And realistically though, if you have a statute or law, piece of legislation that could solve some of the problem, not all of it, you have no hope of getting it through in a Congress that’s run by Senator Mitch McConnell, who more than any other man in Congress today has enshrined the notion of monopoly as the game of politic.
LAWRENCE LESSIG: No, that’s right. But if we can imagine in 2016 changing control of Congress. And critically recruiting a number of principled Republicans to the idea that this corrupt system is corrupt, then I think it’s completely possible. And more and more, grassroots Republicans are recognizing that they’re not going to get what they want either under this system, where they have to sell out to the big interest. Look at David Brat’s victory over Eric Cantor, you know, the—
BILL MOYERS: In the Republican primary.
LAWRENCE LESSIG: In the Republican primary.
BILL MOYERS: He’s now in Congress, but beating the—
LAWRENCE LESSIG: He’s now in Congress.
BILL MOYERS: —major leader of the House.
LAWRENCE LESSIG: That’s right. And what his argument was, is that Eric Cantor had become a crony capitalist because he spent all of his time sucking up to the Wall Street bankers rather than advancing conservative causes. Now, the conservatives are increasingly getting this, just as the liberals have understood this. And if we can begin to get people to recognize that, “Look, we can differ on fundamental issues, but this really fundamental issue, we don’t differ about.” We have to find a way to make a democracy responsive to the voters.
ZEPHYR TEACHOUT: But I want to also talk about the Democratic Party here though. Because there’s a real split within the Democratic Party between the Wall Street wing and progressive, populist wing. And I’m a Democrat. And, you may not know this, but in 1924, I believe, a part of the Democratic party platform was public financing of elections.
BILL MOYERS: I didn’t. I was just in kindergarten then.
ZEPHYR TEACHOUT: But I actually think, you know, when we look at Democratic losses, it’s in part because enough, some, Democrats aren’t telling the truth about what’s happening in the economy. And people are going to respond. If they hear a candidate who’s lying to them about everything being okay, instead of some real truth telling, and some real truth telling about what’s wrong with politics and what’s wrong with power, and if Democrats can truly embrace public financing as a root issue, not as a sort of fussy, side reform, but as the root issue which enables Democrats to actually care about, you know, what’s happening in working-class people’s lives, I think you’re going to see a lot more excitement.
It’s the sense that Democrats aren’t really telling you the truth. Or they’re really working for Wall Street and they say they’re not, that I think turns people off. And I think there’s an extraordinary opportunity. Look, I know the odds are low. Václav Havel has this wonderful— I’m not going to get it exactly right—
BILL MOYERS: Champion of freedom in the Czech Republic.
ZEPHYR TEACHOUT: He says this thing about hope, which I find very powerful, that hope is not the same thing as optimism. Optimism is the belief something is likely to happen. Hope is the belief that it is possible and it is worth doing.
I see the power structures in this country. And if I’m going to be telling the truth to people, I’ll tell them honestly, we’re in tough shape. You know, the house is on fire in terms of our democracy. We are flat-lining in terms of responsiveness. But we still have opportunities if we take the moment, take this moment of extraordinary frustration and engage people directly on the root issue honestly and provide a path through. And I think we have to go that way instead of these half measures that aren’t really engaging the root issue.
BILL MOYERS: So Shane Goldmacher at the “National Journal” wrote, money didn’t buy the midterm elections. Quote, “few observers would place the blame on a lack of money. Instead, most would point to a tough political environment, a hostile Senate map, and— more than anything else—an unpopular president, as the factors that dragged down Democrats nationwide.” To what extent do you think money mattered last week?
ZEPHYR TEACHOUT: It mattered enormously. It mattered in the selection of candidates. You know, long before we even heard their names, the candidates were selected if they were basically comfortable working for big-money donors. And that in itself gets you out of the realm of inspirational leadership. And then, of course, it mattered in the drowning of ads and the sense that people outside of any accountable power, super PACs outside of any accountable power, were really sort of running the system. So, I think made a huge difference. And I think if you instead imagine the counterfactual, imagine this last election where in every competitive district, you’d seen competitive primaries with people with publicly financed campaigns who stepped forward because they had something to say, not ’cause they were next in line and not because they could raise money. We would have seen an extraordinary democratic, proud, fearless, populist fighting force. And I think they would’ve done very well.
LAWRENCE LESSIG: So, you’ve got to think about the psychology that Zephyr describes, of spending 50 percent to 70 percent of your time raising money. Those people were constantly aware about how what they say would affect the money in their race. And they said things that they knew would not risk too much, relative to the money.
So, even if the money doesn’t win, you know, when they said in 2012, Karl Rove lost, that was completely naïve. Karl Rove won, even if he didn’t win any race. Because what he did was to define the lines that you couldn’t cross. And what that has produced is exactly the kind of Democratic Party that Zephyr is attacking, one that is more interested in making sure they can continue to get the Wall Street money by not being too anti-Wall Street, instead of worrying about how we can get an economy again that is actually responding to what voters care about.
ZEPHYR TEACHOUT: Let me give you an example from my campaign. So, I did this fundraising. And I repeatedly heard from my bigger-end donors that they were not particularly excited about teachers’ unions. I’m a big supporter of teachers’ unions. So, I was very aware. And it was a choice I made. But I was very aware that every time that I went on television or Twitter or anywhere else talking about teachers’ unions, that would have an effect on my funding base.
The easier thing to do is to just ignore the issue, to say, “Well, I secretly agree with it. But I’m not going to say anything. ‘Cause that’s gonna affect my funding base.” And then, you end up with these milquetoast candidates who aren’t saying anything because they know where the public is and they know where their donors are and there’s very little where there’s an overlap.
LAWRENCE LESSIG: There was a wonderful leak in the course of this last campaign, a memo that Michelle Nunn’s campaign had developed.
BILL MOYERS: In Georgia?
LAWRENCE LESSIG: In Georgia.
BILL MOYERS: She was running for—
LAWRENCE LESSIG: For Senate.
BILL MOYERS: Senate.
LAWRENCE LESSIG: And a headline for the story was that the memo said she needed to spend 80 percent of her time raising money. But the really incredible part of the memo was where it went through every single issue that she was going to have to address and described which position she would have to take to raise the most money.
Now, you know, she’s a Democrat. I think she’s an exciting candidate. And I’m sorry she lost. But you can’t believe that when she was running in Georgia, she was not thinking about exactly how that money would matter in just the way that Zephyr is describing.
BILL MOYERS: But it seems to me as a journalist who’s covered this for a long time, that we’re at some kind of tipping point where the present system becomes institutionalized because the people who run the system get the big donations and they have no incentive to make the changes that you would like to see.
ZEPHYR TEACHOUT: Uh-huh. That’s right. We’re at that moment. That’s why there’s so much urgency right now.
LAWRENCE LESSIG: But the other part about being at this moment is that it’s produced a government that cannot function, right? Francis Fukuyama talks about the vetocracy we now have, where—
BILL MOYERS: The what?
LAWRENCE LESSIG: Vetocracy. Veto-ocracy.
BILL MOYERS: He’s a scholar at Stanford, right?
LAWRENCE LESSIG: And the point is, because in large part of this enormous influence of money, it’s trivially simple for a small fraction of that money to block any change, whether it’s change on the right or change on the left. So we’ve built this system that is perfectly in power. But it now can’t govern. It won’t govern when it’s a Republican president, it won’t govern when it’s a Democratic president. And that’s building the incredible sense that we need to do something to change it.
ZEPHYR TEACHOUT: And it’s vetoing on so many different levels. I mean, what I see is the way in which this concentration of political power is happening at the same time as there’s a concentration of economic power. So, this extraordinary entrepreneurial tradition we have in this country is actually getting quashed.
We have pretty steep decline of the number of entrepreneurs in the last 25 years. But we have that tradition still. And if we can tap into that and instead of people running away from politics, engaging directly in electoral politics, engaging directly in the kind of activism we need we’re not so far away from the best parts of our tradition that we just should give the game up.
BILL MOYERS: We’ll continue this conversation online. Larry Lessig, Zephyr Teachout, thank you for being with me.
ZEPHYR TEACHOUT: Thank you.
LAWRENCE LESSIG: Thank you.
BILL MOYERS: At our website BillMoyers.com, we continue our conversation with Lawrence Lessig and Zephyr Teachout, and we remember army veteran Tomas Young, who died this week at the age of 34. Tomas was severely wounded in Iraq ten years ago, and came back paralyzed. In 2008, we aired excerpts from “Body of War,” a documentary about Tomas Young, and we spoke with its producers, Phil Donahue and Ellen Spiro. That’s all at BillMoyers.com. I’ll see you there, and I’ll see you here, next time.
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