BILL MOYERS: This week on Moyers & Company…
LAWRENCE LESSIG: In a world of terrorism the government's going to be out there trying to protect us. But let's make sure that they're using tools or technology that also protects the privacy side of what they should be protecting.
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BILL MOYERS: Welcome. We were warned. More than 60 years ago, George Orwell, in his novel 1984, described a society whose inhabitants were caught perpetually in the unblinking eye of Big Brother, an all-encompassing government gaze from which there was no escape.
Even earlier, Aldous Huxley’s Brave New World invoked the vision of citizens bred for complacency, willing to be subjugated in exchange for the mindless pleasures of drug-induced, self-gratification. Just think, Orwell and Huxley wrote before Google, Facebook, Apple, Skype, Yahoo, and Microsoft; before smart phones, laptops, apps, and social media. And certainly before this age of modern global terror. Now we know our own government, through its National Security Agency, has been extensively engaged in the Internet surveillance of our emails and phone records, with the ability to single us out for scrutiny beyond what most of us could imagine. Big Government and Big Business have morphed into the Biggest Brother ever, not only watching and listening but also taking down names and numbers. Here’s Edward Snowden, the private contractor who worked for the NSA and leaked to the world what he learned on the job:
EDWARD SNOWDEN from The Guardian: Any analyst at any time can target anyone, any selector, anywhere. Where those communications will be picked up depends on the range of the sensor networks and the authorities that analyst is empowered with. Not all analysts have the ability to target everything. But I sitting at my desk certainly had the authorities to wiretap anyone from you or your accountant to a Federal judge to even the president if I had a personal e-mail.
BILL MOYERS: As of now, only Snowden fully understands his motives and the full extent of what he intends to reveal remains unknown. The White House insists snooping is a counter-weapon against terrorism, a necessary if unfortunate intrusion. General Keith Alexander, head of the NSA, told Congress this week that the agency’s surveillance had helped prevent dozens of attacks. A large majority of the public agrees that the spying is necessary, but others see it as an unprecedented infringement on our civil liberties, a massive threat to a free society.
Lawrence Lessig also warned us. He was one of the first to see the promise of the new technology, and its peril. In 1999, he wrote this book, Code and Other Laws of Cyberspace. At Stanford University, in the heart of Silicon Valley, he founded the Center for Internet and Society, and he’s been involved with such advocacy groups as the Electronic Frontier Foundation and Creative Commons. Now he teaches law professor at Harvard University and directs Edmond J. Safra Center for Ethics. There, he began to turn from Internet policy to focusing on the corrupting influence of money in politics, which he sees as the true roadblock to American greatness. He’s written several books on the problem including, "Republic, Lost" and "Lesterland," and started the organization Rootstrikers to rally citizens from both the left and right to fight fire with fire.
Lawrence Lessig, welcome.
LAWRENCE LESSIG: Thank you.
BILL MOYERS: So what do you make of these revelations about the government surveillance of our phones and emails?
LAWRENCE LESSIG: So I think it's terrifying, but the particular thing that for me that is most terrifying was when Snowden revealed that basically analysts have discretion to decide where and how they're gonna be spying. And it made you recognize that we haven't built a system yet that anybody should have confidence about, assuming what he's saying is true.
BILL MOYERS: Is the surveillance as we've learned about it in the last few days more extensive than you thought?
LAWRENCE LESSIG: It's cruder and more extensive.
BILL MOYERS: Cruder?
LAWRENCE LESSIG: Cruder in the sense that, you know, in my dream of how it might be if we actually had a sensible system developing, you know, I kind of imagined machines that had well programmed algorithms for figuring out when and what they should be looking for and then a system for overseeing when humans got connected to make sure that the humans were doing the right sort of thing.
But when Snowden describes agents having the authority to pick and choose who they're going to be following on the basis of their hunch about what makes sense and what doesn't make sense this is the worst of both worlds. We have a technology now that gives them access to everything, but a culture if again it's true that encourages them to be as wide ranging as they can.
BILL MOYERS: It seems to me that we're just running a dragnet throughout the internet and bringing in almost everything online. Now, is that a false perception?
LAWRENCE LESSIG: Well, if what he says is true then they're bringing in everything they can. And of course they're applying very sophisticated algorithms to try to pull the needles from the haystack, the sort of algorithms that Google deploys to figure out what good ads to serve you versus bad ads that you wouldn't want to see. So they're obviously using technology in the most sophisticated way they can.
But the question is are there protections or controls or counter technologies to make sure that when the government gets access to this information they can't misuse it in all the ways that, you know, anybody who remembers Nixon believes and fears governments might use.
BILL MOYERS: Nixon at Watergate where there was a considerable amount of surveillance and invasion of privacy, criminal behavior on the part of the government.
LAWRENCE LESSIG: Right, and it's not clear there's criminal behavior now, which is an important distinction, right. We've now authorized through law the kind of thing which before you had to violate the law to be able to do.
BILL MOYERS: But President Obama has assured us that nobody is listening to our phone conversation or reading our email.
LAWRENCE LESSIG: Yeah, so he's very careful. And I have enormous faith in him.
BILL MOYERS: Why do you have faith in him? I ask that not personally but in terms of the office of the presidency. It's been my experience over the years that if you put a tool in the toolbox at the White House it will be used.
LAWRENCE LESSIG: Yeah, I don't mean that I have faith in him in the sense that I believe that he will or has created a system that protects privacy in the way that I think privacy needs to be protected. I mean, I think that's the very question. I mean more faith in his good faith, that he, what he's trying to do is to deal with the threats of terrorism.
But the issue isn't good faith in the sense that, you know, he's not somebody who's trying to defeat George McGovern in a presidential campaign. He is somebody trying to defeat Al-Qaeda or their equivalents. That's not enough, good faith is not enough. The question is what do you put in place to make sure that the system doesn't run off the rails?
And that's the, you know, that's the analysis since the Magna Carta about how we protect liberty, what do we put into place to check government officials to make sure that when they behave they behave in a way that respects our most fundamental values.
BILL MOYERS: But didn't you assume that once the Patriot Act was signed in 2001 we're being watched?
LAWRENCE LESSIG: In a sense yes, we're being watched. I certainly assumed that there were computers that were making flags whenever certain kinds of words or relationships were established. I was sure that was happening, especially internationally. But the question again is the difference between computers doing it in a well regulated sense and computers giving humans the ability to pick up and to listen.
Now, again the president has said that nobody's listening to telephone calls or reading emails of American citizens. Those two statements could be perfectly true and still there'd be something fundamentally important to worry about. Now, of course people don't even believe those statements are true. But put that aside for a second. You know, in the old days the thing you worried about was a government agent listening to the telephone call. That was the invasion.
But today when every bit of your life is out there in the ether somewhere, somewhere in the cloud and the, what intelligence is is using computers to sift through this and to put together patterns to figure out what you care about on the basis of all this information that's out there, privacy must progress to recognize why it's important that we regulate the government's use of all this public data as much as it's important that we regulate the government's ability to listen to my telephone calls.
BILL MOYERS: Google and Yahoo and other companies say they're not complicit in any mass eavesdropping exercise and that they have not given the government information beyond what was covered by federal court warrants. Does that comfort you?
LAWRENCE LESSIG: And they're very adamant that they're not exceeding legal requirements. But that doesn't give me much comfort because the legal requirements here are quite expansive. And you know, I think anybody who believes that a company, a publicly traded company is going to violate the law to protect privacy is naive about the proper loyalties of these companies.
So the question isn't whether they're living within the law or not. The question is what is the invasion the law is insisting upon. And that's the thing that we don't yet have a clear sense about. And we certainly don't have any reason to believe that infrastructures for protecting legitimate privacy have been built here even if the government's engaged in a very difficult task of rooting out terrorists.
BILL MOYERS: Talk a little bit more about what you referred to as the property loyalties of these companies.
LAWRENCE LESSIG: Well, these companies have a job to earn money for their shareholders consistent with the law, meaning they're not allowed to exceed the legal authorization and when the courts, when the courts and and federal prosecutors or federal agents come in they've got to do what those people say.
Now, they can fight it. You know, so Twitter for example has been quite aggressive in insisting to force the government to meet the burdens the government must meet before they get access to certain information Twitter has. And at certain stages Google has done the same thing.
So, but the question is whether this is, you know, a good way to convince the public in a public relations exercise that they're being as protective as they can be versus really actually protecting data from the government surveillance. And the reality is there's very little a company can do consistent with the law to resist the government when the government comes in and makes a demand.
BILL MOYERS: As I understand it the US law allows the government to demand that companies hand over online information about people outside of the country who are not US citizens if they are proven to be a potential national security threat. Government officials say, are careful, have been careful to say that any information on US citizens when they cast that metaphorical dragnet can be scrubbed out. Now, if they can be scrubbed out, the reverse of that is they can also be permitted to stay in. Is that a concern to you?
LAWRENCE LESSIG: Yeah, the scary fact is, you know, an obvious fact that it's cheaper and simpler, and this what Snowden said. It's simpler to gather it all and to have it all there and , for a period of time at last, but who knows how long that period of time is, and to go back to it and to use it as you need it.
And the reality then is that if we don't have technical measures in place to protect against misuse, this is just a trove of potential misuse. Now, that's the part that really frustrates me. Because, I wrote a book in '99 called Code and Other Laws of Cyberspace. My point from the very beginning has been we've got to think about the technology as a protector of liberty too. So code is a kind of law. And the government should be implementing technologies to protect our liberties. Because if they don't, we don't figure out how to build that protection into the technology it won't be there.
And what's frustrating to me is to hear a description of a system where we don't have any infrastructure in place really to protect the privacy. We have infrastructure in place to facilitate the surveillance. When there are plenty of entities out there, companies like, there's a company called Palantir who's built a technology to make it absolutely, make you absolutely confident that a particular bit of data has been used precisely as the government says it's supposed to be used. You can find out exactly who's looked at it and for what purpose it's been used at. So the point is there's a way to build the technology to give us this liberty back, this privacy back. But it's not a priority to think about using code to protect us.
BILL MOYERS: Is that sort of a burglar alarm?
LAWRENCE LESSIG: It's more of an audit trail. Like, the thing that you should worry about is that the government gathers all this data and, you know, they're gathering it for the purpose of finding out whether you, Bill Moyers, are a terrorist. Okay, let's say they figure out you're not a terrorist.
But then what else might they be looking at this data for? So let's say you say something that's particularly troubling to the administration and somebody wants to know is there something we can find out about Bill Moyers that might quiet him down? Now, we ought to be able to know what reasons and when they've actually looked and used this data.
And the point is these technologies of audit protection at least make it harder for the plumbers, the digital plumbers of the future to get around the protections and to violate the underlying core privacy. And that's where we should be pushing. We should recognize in a world of terrorism the government's going to be out there trying to protect us. But let's make sure that they're using tools or technology that also protects the privacy side of what they should be protecting.
BILL MOYERS: For the sake of my viewers who are younger than even you, the plumbers were Richard Nixon's burglars, secret operatives, spies who went into all of this privacy data about the people they considered their enemies.
LAWRENCE LESSIG: Yeah, we call them private contractors today.
BILL MOYERS: And they’re a lot of them aren’t there?
LAWRENCE LESSIG: That’s right.
BILL MOYERS: But the people who have to build that system that you're talking about and calling for are the very people who've built the present system.
LAWRENCE LESSIG: So far, but there are lots of other people who could be brought into this process who don't have a connection to a defense contractor, don't have a connection to the military, who have technical knowledge necessary to make the kind of evaluations that ought to be made here and can begin to insist on the standards, right. We have, like, a conception of bringing judges in to oversee warrant processes.
Well, I think we ought to begin to think about making geeks into judges, you know, people who have technical knowledge like others have legal knowledge who could sit there with the judge, lawyer, judges and say, "No, no, no, when the government says that there's no way for them to surveil without doing blah, blah, blah, that's wrong. They could be doing this instead."
I mean, we have two kinds of specialized knowledge here, lawyers and coders. And those people have to be in the same room as they listen to the government and the government says, "This is what we need to do to keep America safe." Let's force the government to prove that to both of these lawmakers, the lawyers and the coders.
BILL MOYERS: Because this technology makes it so much easier as you said to invade our privacy, that, you know, we're profiled all the time by advertisers in the name of commerce. What's the difference between that practice and the profiling being done by the government?
LAWRENCE LESSIG: Yeah, so I personally love the profiling that makes it so some ad company doesn't serve me an ad for tennis shoes and does serve me an ad for a great new book that I might have some real interest in, right. The purpose of that profiling is to narrow the the information that would be pushed into my sphere to that information which I want.
And I'm happy for that, right. But the same profiling information has other uses some of which are good and some of which are bad. I think we have to under, think a little bit more about what we mean by privacy, right. So my own view is if there are data out there that the government can use to build profiles or build or steer the government based on, you know, profile-like data, the way that advertisers try to figure out that if you're somebody who's crazy enough to have bought one of Lessig's books, then you might like to read one of Jeff Rosen's books, like, that kind of, that I don't really feel the privacy issue.
What I feel the privacy issue triggered is when that ties it back to me. Like, when you start linking it back to me so that I begin to suffer consequences, I can't get onto an airplane or I, you know, notice people watching me or engage, you know, that's the kind of thing that we need to, that is, I think, what the privacy here has got to be. So in my view in the future the world will be a great thing when big data is able to sort out all sorts of things we can't figure out right now. Like, you know, when it's able to figure out this is the fear of influenza we have to worry about because we see 17 cases in this part of the world and we see the airplane links that bring them over to New York, that's the use of big data that I think we should celebrate.
But the question is are we building at the same time infrastructures for protecting the misuse of that big data, the violation of privacy? And in my view the violation of privacy is drawing it back to an individual and interfering with that person's liberty without any good showing to a court or a judge that there's a good reason to do that.
BILL MOYERS: So when the video surveillance at the Boston Marathon caught these two fellas with their backpacks and then caught them subsequently responding as if they had just done something questionable, would you consider that an invasion of their privacy because they could no longer as we used to say disappear into the crowd, get lost in the crowd?
LAWRENCE LESSIG: I'm not troubled once we have these data that we narrow it down and properly track and follow people who we have good reason to believe have committed a crime. Now, we have to do that well. You know, one of the tragedies of what happened in Boston was this, you know, flurry of images that was sent out there tagging lots of people, lots of innocent people, tragically tagging people, who then subsequently suffered great loss, in a completely irresponsible way.
That's a misuse of that data. The proper use of that data is okay, we have these cameras out there. You know, we all recognize we're on camera all the time. And we ought to be able to go by, along in our life without having to justify what happens to have been caught on the camera unless there's a good reason you can show to a court and say, "This is the person we need to be able to track down because look, these three things link this person together with a tragic event that has just happened."
BILL MOYERS: But who do you trust to make those distinctions and to act honorably on the data that has been collected?
LAWRENCE LESSIG: Not the government as in the prosecutors or the investigators alone. And that's the insight that American law for hundreds of years has traded on, that we have prosecutors but we also have a neutral arbiter, the court, who's supposed to listen to the government's claim, "We need to go after this person. We need to break this person's privacy. We need to unlock this person's car and get--" and decides whether there's enough evidence here to justify the government's invasion.
It's the recognition of the need to build this check into the system. Now, law is an important check and the constitution's an important check. But we also have to think about the infrastructure, the technology, the code and whether the code that we're building here just creates this endless kind of candy jar for miscreants to go in and invade privacy or whether we're building code that actually has the capacity to also protect us even as it's facilitating the government to identify criminals engaging in criminal behavior.
BILL MOYERS: Let's talk about Edward Snowden, the 29-year-old who was a contract employee at the National Security Agency. Any thoughts about his motives?
LAWRENCE LESSIG: You know, he came out publicly, he explains his reasons, doesn't seem to be benefiting financially from this. He's going to suffer enormous personal costs for doing what he did. Those are the things that traditionally have marked somebody as the right kind of civil disobedient. And let's be clear. The penalties which he faces for what he has done are extraordinary.
Today these guys face life imprisonment, maybe the death penalty. So when somebody comes forward and explains him or herself in a very clear way about what's motivating it's hard not to be moved by that.
BILL MOYERS: Let me play for you some of the video of what Edward Snowden told Glenn Greenwald of "The Guardian."
EDWARD SNOWDEN from The Guardian: The greatest fear that I have regarding the outcome for America of these disclosures is that nothing will change. People will see in the media all of these disclosures. They'll know the lengths that the government is going to grant themselves powers unilaterally to create greater control over American society and global society. But they won't be willing to take the risks necessary to stand up and fight to change things to force their representatives to actually take a stand in their interests.
LAWRENCE LESSIG: Well, I think the thing he most fears is the most likely outcome. I think people have seen lots of crises, lots of scandals which we've not found a way to rise up and do anything about. Think about the Wall Street scandals which didn't produce an uprising. There was the Occupy Wall Street movement which was very important, but it didn't produce an uprising in ordinary people.
But part of the reason for that is I think ordinary people have lost the sense that there's a reason to try to engage politically because in the end they know how the cards will be dealt. And the cards will be dealt not according to what makes sense or what people actually believe, but where the power is. And here the power is both the literal power of the most powerful security state in the history of the world and also the power of enormous interests to support and continue that state.
BILL MOYERS: Here's one thing he said "I understand that I will be made to suffer for my actions, [but] I will be satisfied if the federation," interesting word, "The federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant."
LAWRENCE LESSIG: Well I read that to be somebody who cares deeply and loves deeply the country who he has now embarrassed. And I think it's gonna take a lot for people to listen to that and recognize what he's done, but hear in that the kind of call to patriotism which I think it ultimately is. Because I think all of us have got to demand of our government that the government behave in a way that gives us a reason to trust it. And that's not to have a bunch of politicians stand up and say, "Trust us," that's not that government.
BILL MOYERS: There are people who disagree with you of course. The New Yorker's Jeffrey Toobin says, "Snowden is no hero.” He's not even a whistleblower. “He is…a grandiose narcissist who deserve to be in prison." John Yoo, one of the architects of President George W. Bush's legal justification for torture says, "Snowden should go to jail, as quickly and for as long as possible."
LAWRENCE LESSIG: Yeah, but you can believe that he's violated the law and believe that people who violate the law should go to jail but also believe that what he did reveals to America something America doesn't understand and needs to understand to make this democracy work.
Which is that there is an enormous apparatus of surveillance that if it works the way Snowden says is not working to guarantee or protect the kind of liberties it needs to protect. Now, again we don't, you know--
BILL MOYERS: We don't know.
LAWRENCE LESSIG: We don't know.
BILL MOYERS: Yet.
LAWRENCE LESSIG: But the point is a free government depends upon institutions that give us a reason to trust them. And if anything this has brought out the fact we don't yet have those institutions in place.
BILL MOYERS: I'm dubious that we'll get the kind of debate at the core of the political process that you're calling for and that Snowden is calling for because the lawmakers who voted for these secret programs have a political incentive now to defend them--
LAWRENCE LESSIG: Yeah, of course--
BILL MOYERS: --don't they?
LAWRENCE LESSIG: Of course they do. And, you know, the reality is, however, whatever Snowden might think or Glen Greenwald might think most Americans are not in that place.
BILL MOYERS: Yeah, there's no groundswell of anger at the government.
LAWRENCE LESSIG: No, and so I think that, you know, it's going to be a hard road to, a hard slog ahead for them and for Mr. Snowden in particular. But the question, you know, I hope that it opens up the right questions. And the right questions can't be, you know, should we give up the effort to try to identify terrorists before they attack, you know, that's just not a question that should be in the table. The question should be can we build an infrastructure for doing that that all of us has a reason to be confident in and gives us the confidence that the violations of privacy that people fear will not and cannot occur.
BILL MOYERS: You sounded a warning, back in 1998 when you testified before, 15 years ago, when you testified before the House Judiciary Committee. You begin by describing how the Russian people were technologically monitored by their government. Here's what you said.
LAWRENCE LESSIG testifying: The Russian people learned to live with this invasion. They learned to put up with the insecurities that technology brought. If they had something private to say, they would go for a walk in a public park. If they didn't want a call traced, they would make it from a public phone. They learned to live with this intrusion by adjusting their life to it. They found privacy in public spaces, since private spaces had been invaded by a technology.
And who could blame them? They lived in a totalitarian regime. The State was unchallengeable.
[…]
The last 20 years have seen an extraordinary explosion in technologies for invading people's privacy and for a market that feeds on the product of these technologies.
We are told that our E-mail can be collected and searched by our company or university, and so op-eds advise us not to put private matters into E-mail. Our credit card records become the source for direct marketers, and rather than object, we simply buy with more cash. We have responded to this increasing invasion as the Soviets responded to theirs. Bovine, we have accepted the reduction in private space. Passive, we have adjusted our life to these new intrusions. Accepting, we have been told that this is the way we have to live in this newly digitized age. Now I find this quite bizarre. For while this increasing Sovietization of our personal and private life occurs, we live in no Soviet State. While passivity dominates, there is no reason we couldn't do things differently. We accept these invasions and these restrictions on our freedom, though there is no Soviet army to enforce them on us.
We accept them, these reductions in the space of our privacy, even though we are the architects of the technologies that give effect to this reduction in privacy. And worse than accept them, sometimes we are told we have no choice but to accept them.
Technologies of monitoring and searching erode our privacy, and yet some will argue that the Constitution restricts Congress' power to respond. Technologies make it possible from a half-a-mile away to peer into one's home and watch what goes on there, or eavesdroppers to listen to the conversations in our bedroom, but we are told that the free speech clause of the First Amendment bars Congress from doing anything in response.
Congress, our Constitution is no Politburo. The free speech clause does not render us hostage to the invasions of new technologies. It does not disable you, as representatives of the people, from responding to these changes through laws that aim to re-create the privacy that technology has removed. Indeed, other values, themselves as essential to our democracy as free speech, should push you to take steps to protect the privacy and dignity that changing technologies may take away.
BILL MOYERS: What was it at that time 15 years ago that you saw seducing us toward this kind of torpor?
LAWRENCE LESSIG: You know, I was right in the middle of writing the first book, which was about technology and civil liberties. And what I saw in that intersection was the way in which the technology invited us into the internet with this promise of privacy and this promise of access but that the technology of the internet was going to change.
And as it changed it would surveil us more efficiently, it would control us more effectively, it would destroy lots of the fundamental values that we thought we would guarantee through this technology. And what I was frustrated with is people didn't seem to see the way in which the technology invited us in. And then it was a trap, and haven't developed the political response necessary, even the understanding necessary to resist it and to reinforce the type of liberties and privacy that is our tradition.
BILL MOYERS: It's obvious that we're creating a national security complex that is increasingly embedded in our way of life just would you say like the military industrial complex that Dwight Eisenhower warned against?
LAWRENCE LESSIG: Yeah, but we should remember the first version of Dwight Eisenhower's speech which was not the military industrial complex. It was the military industrial congressional complex. And they talked him out of, into getting, dropping the congressional from that story, but I think that's the most important one, the way in which the military industrial complex is in bed with Congress and makes it so hard for Congress to make any sensible policy so long as they're dependent upon both the military and the industry to fuel their political survival.
BILL MOYERS: Look at these facts. Booz Allen, the company for whom Edward Snowden was a employee or contractor, the company Snowden worked for made $1.3 billion last year, 23 percent of the company's total revenue from intelligence work.
A former director of National Intelligence, John McConnell, is now an executive at Booz Allen. He's gone through the revolving door. The chief intelligence official now, James Clapper Jr., used to work for Booz Allen. And earlier this year Booz Allen announced it was starting to work on a new contract worth perhaps as much as $5.6 billion over the next five years to provide intelligence to the Defense Department. Now, add that up, Larry, and what do you get?
LAWRENCE LESSIG: I, you get a good picture of the way government doesn't work today. You know, there are two very different revolving doors in Washington. The Defense revolving door is longstanding. You know, people go work for the government, they have private, they have security clearance all the way up to the top. They go into private industry, they have the same security clearance.
They're going between these two worlds. Part of the reason for that is the reality that government employees don't get paid much relative to what they get paid in the outside. So here's the contract. You'll have a couple bad years and then you'll have a bunch of good years and a couple bad years and a bunch of good years. But that's the way in which Defense contracting works or doesn't work.
Because the question is always are the policymakers focused on preserving this revolving door or are they focused on what the underlying security of the nation is? Now, my own bias is to think that many of those people are actually focused on the right thing. In the Defense Department, you know, soldiers, they go to work for the right reason in our government. Now, eventually they get out into the private world, but I think they were motivated by the right thing. The other revolving door which is Washington is the revolving door from Capitol Hill to K Street where—
BILL MOYERS: The lobby--
LAWRENCE LESSIG: --members of, yeah, the lobbyists, where lobbyists work, where members of Congress and their staffers in particular have a business model focused on their life after Washington, their life on K Street. You know, Jack Abramoff, who was the infamous lobbyist who went to federal penitentiary for his crimes but has become a pretty important reformer in my view after he came back, in his really great book, Capitol Punishment he describes the most successful technique he had. He said, I would walk into a senator's office and I would meet with the chief of staff and I would say, so what are you doing in two years? Chief of staff would say, well, I don't know, Jack. And Jack would say, well, I want you to look me up after you're finished.
And as Jack writes, from that moment on I owned that chief of staff and not a single dollar had traded hands. And so the point is when you've got a system where they're focused on how they're going to help the lobbyists once they're out of Capitol Hill how can they ever stand up to the lobbyists and do the right thing? And that's the corrupt system that I'm much more concerned about in being able to make judgments about the future of this country.
BILL MOYERS: Well, I, before coming here I watched a TED Talk you gave on this subject.
LAWRENCE LESSIG in TED Talk: Fifty percent of the Senate between 1998 and 2004 left to become lobbyists, 42 percent of the House. Those numbers have only gone up, and as United Republic calculated last April, the average increase in salary for those who they tracked was 1,452 percent. So it's fair to ask, how is it possible for them to change this? Now I get this skepticism. I get this cynicism. I get this sense of impossibility. But I don't buy it.
BILL MOYERS: What incentive do politicians and their staffers have to hold whether it's the intelligence agencies that are now privately contracted out to Booz Allen and others like that or any other corporation, what incentive do they have to change the system if they know they're headed for a fortune on K Street?
LAWRENCE LESSIG: Yeah, if they have an incentive it's a conflicted incentive. It's the sort of incentive that leads most people to have no confidence in the institution. You know, the latest Rasmussen poll found six percent of America thinks Congress is doing a good job--
BILL MOYERS: Six percent
LAWRENCE LESSIG: --Six percent. But at what point does an institution have to confess political bankruptcy, right, because we have no confidence in Congress, we have no confidence in Congress, right. In parliamentary systems there's a vote, no confidence in congress. Well, we, the people, need to have the same vote. And we have voted again and again, we have no confidence in this institution.
And what those members of Congress have to recognize is that they have a constitutional obligation to recreate a context, an environment, a system where we have a reason to trust them. And where they're spending their time, you know, four hours a day raising money from the tiniest fraction from the 1 percent to get back into Congress to get their party back into power, ordinary Americans look at that and say, "Why would I trust you? Why would I trust you?"
BILL MOYERS: There's a former member of Congress from Virginia who says that both parties have become telemarketing systems--
LAWRENCE LESSIG: Absolutely, I think--
BILL MOYERS: --dialing for dollars.
LAWRENCE LESSIG: Yeah, and that's not figurative, right. If you could get a camera into both where the Republicans do their work and the Democrats would do their work it would astonish Americans to see these people sitting in these cubicles with headsets on sitting there dialing and dialing and dialing people they've never met, but of course they pretend they know these people when they call them, begging them for money.
You know, it's like, remember the old image of the Skinner box, that, you have the rat, learning which buttons to push to get the food. Well, our congressmen live in a Skinner box. They live 30 to 70 percent of their time raising money to get back to Congress. And as they do that, they're only humans.
As they do that they learn what are the words they need to utter to the people on the other end of the line to get them to send that $1,000 or $2,400 check. And the point is they're not calling, they're not calling the average American. They're calling people of a very specific set of interests. And that's the core of the corruption that our system's built.
BILL MOYERS: So from your experience what's been the impact on everyday people of this kind of this kind of branding, fundraising?
LAWRENCE LESSIG: Well, I mean, there's impact in policy. Like, the things that Congress worries about are different from what Congress would worry about if Congress were not so focused on raising money. So for example, the Huffington Post did a fantastic little piece about this. They asked the question in the first quarter of 2011 what was the number one issue Congress spent its time working on, you know, on the floor of the Congress and in committees?
You know, we had a lot of issues at that point. We were in the middle of two wars, huge unemployment crisis. We had a debt crisis, we had a government that was about to be shut down in the summer. There were a lot of issues they could've been focused on. So what was number one? And the answer is the bank swipe fee controversy, you know, the question of when you use your debit card how much should the banks get, how much should the credit card companies have to pay.
And why was that number one? Because when a member of Congress stands on the floor of Congress and says, "Well, you know, I'm not sure. There's a lot of good arguments on one side, a lot of good arguments on the other side," millions of dollars rain down upon that congressman by these two powerful interests that are keying to try to sway Congress one way or the other.
And so the point is, you know, we have a system where Congress can't afford to address the most important issues like how much does it pay to talk about unemployment on the floor of Congress? How much money do you actually get for addressing issues that are important to America? And I think the really important thing here is to recognize it's not because they're evil. It's not because they're bad people. It's not because they're criminals.
LAWRENCE LESSIG: The kind of corruption we've got today is not bad souls. It's good souls, it's good people who are living within a system that forces them to behave in a certain way to succeed. And I think what we need to do is to say to those people, "We understand. But you are responsible for fixing this. And you could fix this. Without changing the constitution you could take the most important first step in fixing this. And if you don't, then you are responsible for destroying the most important democratic branch we've got."
BILL MOYERS: Here's a third term Democratic, Jim Himes, a Connecticut representative, member of the Financial Services Committee, a former banker at Goldman Sachs and one of the top recipients of Wall Street money. He says, quote, "It's appalling, it's disgusting, it's wasteful and it opens the possibility of conflicts of interest and corruption. It's unfortunately," he said, "the world we live in." Now, is he just being pragmatic and you and I are just being idealistic?
LAWRENCE LESSIG: He's correct. It is all of those things. It's a product of the world he lives in. But here's the difference. You and I can't change that world. He could. He and a majority in Congress and a majority in the House of Representative, majority of the Senate could pass legislation tomorrow which would radically change the way Congress raised its money.
So Jim Himes and other Democrats would not be begging to Goldman Sachs, his former employer, or other Wall Street banks for the money they need to run their campaigns, but they would be getting the money to run their campaigns from all of us so that they could begin to say, "What's actually in the interest of my constituents? What actually would help America here?"
As opposed to, "What can I not afford to do if I want to continue to raise the money I need to raise from Wall Street or the pharmaceutical companies or the doctors other every other major interest that has the capacity to veto any sensible reform in our American government?" They could change this tomorrow.
They should be sitting down and figuring out how do we put together the coalition that's necessary to make this right? And that coalition is not just Democrats. There are people on the right who are as disgusted by what they call crony capitalism which corrupts both our government and our capitalist system. They are just as disgusted, they are just as motivated.
And if we had a Congress and leaders in Congress who were willing to think about the fundamental reform this would take they could do it, they could do it tomorrow. But they are too comfortable maybe, they are too weak maybe. They are too small maybe. They are not the leaders that, you know, we romanticize from the past who were willing to say, "Okay, it may destroy my party, it may destroy me, but this is what I'm going to do."
I mean, I think of the person you worked for, Lyndon Johnson, who says to his staff, civil rights is the issue. And they say, are you crazy? You're gonna get destroyed. This will be the end of your presidency. The first move out will be the end. And he says, you know, what the hell is being a president for? Well, what the hell is being a member of Congress for if not to at least change the conditions under which all of us have a completely rational reason to say that institution is bought and I don't believe what they're doing?
BILL MOYERS: And yet you see the headline in the newspaper, Americans are not really concerned about, don't really care about the campaign finance reform. You've seen those polls and they're not riled up about it. So the anger isn't coming from below to pressure the candidates to do anything about reforming the system.
LAWRENCE LESSIG: Look, in July of 2012 Gallup did their annual, their quad-annual poll, what is the most important issue that the next president should address? Number two on that list, second only to jobs, was quote, corruption in Washington. Now, by corruption people were not thinking of Rod Blagojevich or Randy “Duke” Cunningham because those issues were nowhere in the press--
BILL MOYERS: That's endemic in human nature to--
LAWRENCE LESSIG: --that’s right. They were thinking about the issue that was in their newspapers every single day, the Citizens, consequences of Citizens United like these super PACs spending unbelievable amounts of money, seeing the candidates, Republican candidates, too, flinging themselves around the country to raise money to run their campaigns.
And they're thinking this system is deeply corrupt. That was number two. Now, no candidate, Obama or Romney, even mentioned the issue on their website. And I had a researcher look at that. I said, "Tell me the last time there was an issue that was on the top ten of this list that neither part even mentioned."
And he looked as far as he could find and there was not ever a time that an issue on the top ten list was not even mentioned by either party. So there's a wonderful convenient reality of our political parties that they don't want to talk about this issue. They constantly say it's not an issue America cares about.
But I think America doesn't care about it because they say, "What's the use?" Nobody's going to talk about it, nobody's going take it up. No one's going to do anything about it. I've got better things to worry about. So of course they don't care about it, they don't talk about it and they also don't participate, they don't vote, they don't get involved. Because they rationally look at the system and say, "The system is bought and I don't have the money."
BILL MOYERS: You have been putting forward a great big idea that you think might make a significant difference in this and radically change the system. It's called the money bomb.
LAWRENCE LESSIG: It, yeah, well, right, the money bomb is a mechanism for creating the political power that we need to force this change. The change is not such a huge change relative to what other states, even what New York is thinking about right now, just changing the way you fund elections. But the money bomb is let's figure out how much it would cost in the next two election cycles to win enough seats in the United States Congress to guarantee we get this change.
You know, I don't know what that number is, but we're hiring a group to calculate that number let's say it's a half a billion dollars. So then let's go around to 50 billionaires and say to them, "Okay, we want you to write, we want you to promise in Kickstarter-like way, that if we find 49 other people to write a check for that number over 50, you will write a check for that same amount."
So whether it's a $10 million check or a $50 million check, I don't know what the number is going be, but commit to us that you do that. So that by the end of this we've got a super PAC with the power to end all super PACs.
It would be for the purpose of electing representatives and a president committed to, we'd identify the package of reform they've got to promise. So you go into a district and you say, "Okay fine if this congressperson is not committed to that, we're going to take that congressperson off, take that congressperson--"
BILL MOYERS: You're going to punish him for not supporting reform?
LAWRENCE LESSIG: Right. Now, of course, you had Jonathan Soros on your show and Jonathan Soros gave us the pilot that demonstrated how powerful this idea could be. Soros ran a little super PAC called Friends of Democracy. They targeted eight seats. They spent about $2.5 million, not a lot of money, and seven of those eight seats flipped in the way they wanted it to flip.
They made money in politics the issue and in seven of those eight seats people came out and said, "Fine, that's right. This guy is corrupt in our view and we're going totake him out." Now, if you in 2014 went from eight seats to 80 seats and you won even 50 of those 80 seats on the basis of money in the politics so if you had $50 million in 2014 and you won 50 of those seats, that would terrify the United States Congress.
So when you came back in 2016 there would be a lot of people who would all of a sudden magically have become reformers in this fight and we would have a real chance to get a Congress committed to in 2017 their very first bill being the bill to enact the change that gives us a reason once again to have confidence in the system. Now, it's a huge fight.
And the reason that money bomb has gotta be so big is that the closer we get and the closer that K Street realizes that we might actually have a chance of winning, they're going to create all sorts of pushback. Because if we win lobbyists don't go away. We need lobbyists. Lobbyists are an important part of our system. But the value of lobbying services gets cut in half, right, because they are no longer the fundraiser-lobbyist. They are just somebody, a policy wonk giving a good idea about what they want. So you know, as John Edwards used to say when we used to quote John Edwards, there's all the difference in the world --
BILL MOYERS: The former John Edwards.
LAWRENCE LESSIG: --yeah. There's all the difference in the world between a lawyer making an argument to a jury and a lawyer handing out $100 bills to the jurors. And our lobbying system doesn't understand that difference.
BILL MOYERS: So the purpose of this PAC to end all super PACs would be to go to 20 billionaires, ask them to get $20 to 40 million to put themselves out of business in a way by backing candidates who want to reform the system including with public funding?
LAWRENCE LESSIG: Yeah, yeah. Now, the kind of citizen funding I think we need is not the old kind where the government sort of writes a check, you know, here's $50 million to run your campaign, but a kind where we empower citizens to exercise their choice about how to spend the money that they've got.
Now, you know, New York right now is considering, the governor is going to introduce a proposal for matching funds system to fund elections in New York modeled on the on the New York City model where if you give $100 it's matched six to one.
My own version of the system would be basically hand out vouchers or coupons to every single voter, right. So if every single voter got a $50 voucher you say the first $50 of your taxes we're going send back in the form of a voucher. And you can give that voucher to any candidate who agrees to fund his or her campaign with vouchers only plus maybe contributions of up to $100. Now, that $50 alone would be $7 billion in the system. So that's real money.
But the point is it would be real money coming from all of us rather than from the tiniest fraction of the one percent. So it's like the voting system where all of us have a vote, all of us would have a voucher. And we could begin to produce a Congress which is once against concerned not only to respond to a large number of us in the voting booth but also to respond to a large number of us in the funding booth.
BILL MOYERS: What percentage of Americans are contributing most of the money for the rest of us?
LAWRENCE LESSIG: Well, if you look at the number of Americans who give the maximum amount to any congressional candidate, that number's at about, in 2010 was at about 140,000 people. So that means 0.05 percent of America gives the maximum amount to any candidate. And of course it's that kind of person that the congress people are calling when they're sitting there with their headsets on dialing for dollars. So what I try to get people to recognize is how tiny that number is.
And it turns out that's the same number of people who happen to be named Lester, right. So it's, basically we've created Lesterland where Lesters are the people that congress people call to fund their campaigns and then they turn around to the rest of us and they try to get us to vote for them. But in the process of talking to the Lesters to fund their campaigns the Lesters have their influence. And it changes the agenda and what's on the table for Congress to even consider long before we get to vote.
BILL MOYERS: You're a good lawyer. What's the best argument against your reform?
LAWRENCE LESSIG: Well, there's a lot of arguments about unintended consequences. I get that there are risks. But, you know, the question isn't what's the risk free thing we can do.
The question is what is the thing that minimizes the probability that we are going to face catastrophic consequences from failing to address the issues we all know we need to address, the tax code, the climate change, having a health care system that actually cures people, financial reform on Wall Street which we have not really, really begun at all.
I mean, these are all important issues that if we can't address our nation is sunk. And so I understand we need to worry about what the consequences of this might be. But we also need to act vigorously to change a system which any rational soul has got to believe is corrupted.
BILL MOYERS: Is Citizens United, the Supreme Court decision enabling corporations and labor unions and others to contribute unlimited amounts to influence the election, an impediment to what you want to do?
LAWRENCE LESSIG: Yeah, there's no doubt that Citizens United has made the problem worse. But what I fear is that we focus too much on Citizens United. Look, that was the biggest gift this movement has ever received. The Supreme Court gave us a gift. Citizens United has motivated millions of people to care about this issue who two, three years ago never would've even thought about the issue.
Okay, so that's great. But the thing to recognize is on January 20th, 2010, the day before Citizens United was decided, this democracy was already broken, right. Citizens United may have shot the body, but the body was already cold, right. So it's not enough to start a reform movement focused on the idea of fixing the Supreme Court's mistakes.
Because if we do we still have not addressed the fundamental problem in the way in which Congress funds its elections. So of course I hope the Supreme Court fixes its mistake. I actually believe within the next ten years that issue will take care of itself--
BILL MOYERS: Without a constitutional amendment as some people are advocating and working for as we speak?
LAWRENCE LESSIG: Yeah, maybe it needs an amendment, but here's what I know. Before we will ever have the votes necessary to pass an amendment out of Congress we have got to produce a Congress that's elected with clean money. So the long term strategy might require a constitutional amendment, not an easy task.
But the short term strategy has got to be to change the way we fund elections that doesn't require a constitutional amendment so that we can begin to fill Congress with people who are committed to the right sense of reform.
They have the power to change the system and we ought to say to them if they don't exercise that power then shame on them. And shame on us if we don't kick them out when they don't.
BILL MOYERS: Larry Lessig, this has really been an interesting conversation for me and I appreciate very much your joining me.
LAWRENCE LESSIG: I'm grateful you would have me, Bill.
BILL MOYERS: The Edward Snowden NSA story is still developing and God save any of us who draw the moral before the tale is told. At our website, billmoyers.com, you can stay abreast of what is happening next. Also with 38 million Americans collectively owing more than a trillion dollars in student loans, we’ve gathered a collection of contributors to ponder the question, “What’s the Best Way to Solve the Student Debt Crisis?”
That’s all at BillMoyers.com. I’ll see you there and I’ll see you here, next time.
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