The distinguished legal scholar Lawrence Lessig has announced that he's exploring a run for president. His goals are laudable, and he remains a valuable critic of the problems at the core of American democracy. A presidential run, however, is almost certainly not a good way to address these problems, and reflects some fundamental misunderstandings about American politics.
Lessig does deserve credit for (potentially) running in the Democratic primary, rather than risking throwing the election to the Republicans with a third-party run. And there's certainly nothing wrong with the "Citizens Equality Act" Lessig is devoting his campaign to advancing. It would guarantee the right to vote and make Election Day a holiday, end partisan gerrymandering, and create a system of public financing for elections.
So far, so good. But are these ideas absent from the Democrats already in the race?
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Not really, although of course the details aren't identical. Hillary Clinton, the prohibitive frontunner, has solid views on these issues. She could certainly be pushed further, but this could be done by people already in the race. Bernie Sanders is a strong proponent of publically financed elections. Martin O'Malley, Hillary Clinton's largely forgotten challenger, has tried to make the right to vote central to his campaign. And his rhetoric has substantive achievements to back it up: When he was governor of Maryland, he signed legislation expanding early voting and same-day vote registration.
Lessig concedes that some of his opponents have good views on the issues. But he argues that they don't have a viable path to getting democratic reforms enacted into law. "The question is not if [Sanders] checked the right policy boxes," Lessig told Sam Stein of The Huffington Post. "It is does he have a way to get those policies passed?"
A fair question. The problem is, Lessig doesn't actually have a good answer.
Lessig's strategy involves making the 2016 election into a "referendum" on the Citizens Equality Act. By focusing solely on this proposal — and claiming that he would resign once it passed — Lessig would allegedly create a mandate that would force Congress to pass the bill. "Even if [Clinton] did say exactly the right things, I don't think it's credible that she could achieve it because she — and the same thing with Bernie — would be coming to office with a mandate that's divided among five or six different issues," asserts Lessig.
But this does not make any sense. Precisely because of the democratic defects Lessig identifies, Republicans will almost certainly control the House in 2016. The magic word "mandate" is not going to compel Republicans to pass legislation that would be politically suicidal for many members and opposed by most Republicans in principle. As is often the case, the word "mandate" is being used to substitute for an actual plan.
The fatal problem with Lessig's strategy is that after a typical referendum, the policy in question is enacted after a "yes" vote, subject only to judicial review. After a presidential election, both houses of Congress are still required to pass any law, and no campaign strategy can force hostile members of Congress to sign their political death warrant. You cannot just declare a presidential election a "referendum" by fiat.
Nor does the plan make any sense historically. Consider the Great Society, the result of the most productive period of progressive lawmaking of the 20th century. "It wasn't about shedding light on a single issue. It was about bringing together a large (and, as a result, fragile and fractious) coalition, the exact opposite of what Lessig describes doing," says the Marquette University political scientist Julia Azari, author of a definitive study of presidential mandates.
By his own admission, Lessig has the tendency to act based on how he would like things to be rather than on how they are. His proposed campaign exemplifies this flaw. The idea that fierce opposition from Republicans and conservative Democrats can be overcome by a single-issue campaign is just daydream believing, and also elides the question of how one is supposed to assemble a majority coalition while ignoring the priorities of most potential Democratic voters. (Electoral reform is important, but so are issues of racial and gender and economic inequality, and Democratic voters don't want their standard-bearer to ignore them.) Overestimating the potential support from Republicans was one of the factors that led to disastrous results for his Mayday super PAC, and it would doom his electoral strategy as well.
There are already several candidates sympathetic to Lessig's message. A presidential campaign based around a transparently doomed electoral and legislative strategy is a highly inefficient way of pushing that message further in the right direction. "People think that in order to move an issue, they need to play political hardball — be a super-donor, or be a candidate," Mark Schmitt, director of the political reform program at the New America Foundation, told me. "But I think it's likely that Lessig is more effective just writing books and articles about the issue rather than running a super PAC or running for office. He should make the most of what he's good at."
Lessig is a first-rate intellectual, but he doesn't have the political skills of Sanders or O'Malley, let alone Clinton. He should use his unusually influential status to provide ideas to sympathetic political professionals — not try to replace them.
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